Published on 8 January 2024

THIRD SECTION

Application no. 43973/18 Petar Dimitrov CHUKANSKI against Bulgaria lodged on 5 September 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 an unspecified date in 2005, the applicant was employed as an expert at the State Agency for National Security (SANS). On 11 July 2016 the SANS withdrew the applicant’s security clearance for access to classified information, on the grounds of risk of extortion and lack of trust to keep classified information. On 11August 2016, the State Commission for Information Security (SCIS) upheld the withdrawal.

The applicant challenged the SCIS decision before the Supreme Administrative Court (SAC), which upheld it with a final decision of 6 March 2018. The court found that the applicant could not be trusted to keep classified information, referring to a report, prepared by SANS’ employees. The SAC indicated that the report was based on a polygraph examination of the applicant and interviews with him and other individuals, establishing his contacts with a person who was subject to criminal proceedings, to whom he had provided classified information.

Subsequently, on an unspecified date in 2018, the SANS dismissed the applicant due to lack of security clearance.

Relying on Article 6 § 1 of the Convention the applicant complains that the proceedings concerning the withdrawal of his security clearance were unfair because the principle of equality of arms was breached, he had no access to all pieces of evidence, provided by SANS, the SAC has not exercised sufficient judicial control and has not sufficiently motivated its decision. The applicant further complains, under the same provision, 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. Finally, under Article 8 of the Convention, 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. In the affirmative, were the proceedings in respect of the withdrawal of the applicant’s security clearance fair and ensuring the equality of arms, as required by Article 6 § 1 of the Convention, given the applicant’s submissions that he had no access to all pieces of evidence in the file and that the Supreme Administrative Court relied predominately on a report provided by SANS ( Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI; Regner , cited above, § 146; and Yvon v. France , no. 44962/98, §§ 29-37, ECHR 2003-V)?

3. 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)?

4. Did the Supreme Administrative Court adequately state reasons on which it based its decision in the applicant’s case, as required by Article 6 § 1 of the Convention ( Van de Hurk v. the Netherlands, 19 April 1994, §§ 59-61, Series A no. 288)? In particular, did it respond to the applicant’s submissions concerning the lawfulness of the procedure before the State Commission for Information Security?

5. 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)?

6. Was there a violation of the applicant’s rights under Article 8, 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 (see Rotaru v. Romania [GC], no. 28341/95, §§ 46-47, ECHR 2000 V)?