Published on 8 January 2024

THIRD SECTION

Application no. 34584/18 Georgi Todorov GATEV against Bulgaria lodged on 17 July 2018 communicated on 8 December 2023

SUBJECT MATTER OF THE CASE

The application concerns proceedings regarding the lawfulness of the decision to withdraw the applicant’s security clearance for access to classified information, which was a prerequisite to hold the post on which he was appointed.

On 19 December 2013 the Bulgarian Parliament appointed the applicant as a member and a deputy chairman of the newly established National Bureau for Control of Special Means of Surveillance for a five-year term.

On 26 July 2017 the State Agency for National Security (SANS) withdrew the applicant’s security clearance for access to classified information on the grounds that he was acting against the public order. The State Commission for Information Security (SCIS) upheld the withdrawal. The applicant challenged the SCIS decision before the Supreme Administrative Court (SAC). In a final classified decision of 17 January 2018, the SAC upheld the withdrawal of the applicant’s security clearance. The latter submits that the SAC based its factual findings predominately on a report of 25 July 2017 done by SANS’ employees.

On 15 March 2018, the Bulgarian Parliament removed the applicant from office due to lack of security clearance.

Relying on Article 6 § 1 of the Convention the applicant complains that the scope of judicial review carried out by the SAC was not sufficient as far as that court refused to examine the primary materials obtained by secret surveillance, which were the main ground for the conclusion that the applicant was acting against the public order. The applicant further complains of lack of legal certainty because the SAC did not follow its own case-law concerning the assessment of the lawfulness of the procedure before the SCIS. He also invokes Article 13 in this regard. Finally, under Article 8, alone and together with Article 13, the applicant submits that the SAC refused him access to the information gathered by SANS through secret surveillance and the opportunity to refute it.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case ( Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007-II; and Regner v. the Czech Republic [GC], no. 35289/11, 19 September 2017)?

2. Was the scope of the review exercised by the Supreme Administrative Court sufficient to comply with the guarantees of Article 6 § 1 of the Convention in the specific circumstances of the applicant’s case? ( Myriana Petrova v. Bulgaria , no. 7148/08, 21 July 2016; Fazliyski v. Bulgaria , no. 40908/05, 16 April 2013; and Aleksandar Sabev v. Bulgaria , no. 43503/08, 19 July 2018)?

3. Has the principle of legal certainty, guaranteed by Article 6 § 1 of the Convention, been respected? In particular, were there profound and long ‑ standing differences in the case-law of the Supreme Administrative Court concerning the lawfulness of the procedure before the State Commission for Information Security and the standard of proof for the reason for withdrawal of security clearance (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016, and Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 49-58, 20 October 2011)?

4. Was there a violation of the applicant’s rights under Article 8, taken alone and together with Article 13, considering his submissions that the State Agency for National Security used information about his private life gathered through secret surveillance? In particular, had the applicant access to that information and the opportunity to refute it ( Rotaru v. Romania [GC], no. 28341/95, ECHR 2000 ‑ V)?

REQUEST FOR INFORMATION

The Government is invited to submit a copy of the Supreme Administrative Court’s judgment of 17 January 2018, a copy of the State Commission for Information Security’s report dated 25 July 2017, as well as copies of all relevant documents on which that latter judgment was based.