Published on 8 January 2024

THIRD SECTION

Application no. 50103/19 Adela Dimitrova PASHKOVA against Bulgaria lodged on 17 September 2019 communicated on 15 December 2023

SUBJECT MATTER OF THE CASE

The application concerns proceedings regarding the lawfulness of the decision to refuse the renewal of the applicant’s security clearance for access to classified information which was a prerequisite to hold her post.

In 1996 the applicant was employed at the Ministry of Foreign Affairs (MFA) and on 1 May 2016 she was appointed as a First Secretary at the Embassy of the Republic of Bulgaria in Tirana, Albania. From August 2017 until August 2018, she was acting as chargée d’affaires of the Embassy (Head of mission ad interim ). The applicant was issued with a security clearance for access to classified information valid until 11 August 2018. On 27 August 2018, the State Agency for National Security (SANS) refused to renew her security clearance on the ground that she could not be trusted to keep classified information. The SANS considered that the applicant failed to provide important information about some of her professional contacts in a questionary that she had to complete in the renewal process. On 27 September 2018, 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 25 March 2019. The court, referring to reports prepared by SANS’ employees, found that the applicant could not be trusted to keep classified information. The SAC indicated that those reports were based on the questionary filled by the applicant and interviews with her and her colleagues, establishing her contacts with employees within other States’ embassies which she had not reported in the questionary. According to the applicant, the reports prepared by SANS included negative assessments concerning her private and family life which were not relevant to the proceedings in question.

On 20 September 2018 the applicant was recalled from the Embassy in Albania. On 3 June 2019, the MFA dismissed her due to lack of security clearance.

Relying on Article 6 § 1 of the Convention the applicant complains that the proceedings concerning the refusal to renew her security clearance were unfair because the SAC has not exercised sufficient judicial control over the conclusion that she could not be trusted to keep classified information. She also invokes Article 13 in this regard. The applicant further complains under Article 8 of the Convention, taken alone and together with Article 13, that SANS’ refusal to renew her security clearance infringed her private life because some of the reasons for that refusal were directly based on subjective assessment of her private and family life, and that the SAC did not examine her arguments in this regard.

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)?

In the affirmative, 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)?

2. Was Article 8 of the Convention applicable and has there been an interference with the applicant’s right to respect for her private life, considering her submissions that the State Agency for National Security used information about her private and family life as a ground for the refusal to renew her security clearance ( Denisov v. Ukraine [GC], no. 76639/11, §§ 103-106, 25 September 2018; and Mile Novaković v. Croatia , no. 73544/14, §§ 57-70, 17 December 2020)?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 8, as required by Article 13 of the Convention?

REQUEST FOR INFORMATION

The Government is invited to submit all relevant documents on which the Supreme Administrative Court’s decision was based, including copies of the State Commission for Information Security’s decision of 27 September 2018 and the State Agency for National Security’s report of 27 August 2018.