Information Note on the Court’s case-law 220
July 2018
Aleksandar Sabev v. Bulgaria - 43503/08
Judgment 19.7.2018 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Civil rights and obligations
Appeal against a dismissal decision not examined by a court with full jurisdiction: violation
Facts – Following the withdrawal of his clearance to access classified information, the applicant, who was an officer in the Bulgarian Military Intelligence Service, was dismissed. His appeal against that decision was unsuccessful.
Law – Article 6 § 1: The applicant’s right to hold a civil service post, which had been affected by the withdrawal of his clearance to access classified information, was at stake. He was entitled to challenge his dismissal in accordance with domestic law. Thus the dispute in question concerned a “civil right” within the meaning of Article 6 § 1, and the civil limb of that Article was thus applicable to the judicial proceedings in which the applicant appealed against his dismissal.
The Defence Minister had been obliged to dismiss the applicant because he no longer had clearance to access classified information, which was a prerequisite for serving in units under the army’s general staff.
The lawfulness of the dismissal thus depended entirely on whether or not it had been justified to revoke his security clearance. The State Commission for information security had rejected the applicant’s appeal. However, that procedure had not been accompanied by the Article 6 § 1 safeguards: the State Commission was not independent of the executive, given that its members were elected by the Cabinet on a proposal from the Prime Minister; it had never disclosed to the applicant the reasons why his clearance had been revoked and the decision had been taken without his knowledge.
The applicant had challenged his dismissal before the Supreme Administrative Court, alleging in particular that the withdrawal of his clearance was not compliant with domestic law, that he had not committed any offence justifying that measure and that he had never been informed of the reasons. At no stage in the proceedings had the Supreme Administrative Court addressed the question whether the withdrawal of his clearance had been justified by any misconduct on his part. It had simply referred to the decision of the State Commission, pointing out that it could not be appealed against and that a decision to revoke clearance did not have to contain reasons. The applicant’s situation was thus similar to that in the cases of Myriana Petrova v. Bulgaria and Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, where the Court had found a violation of Article 6 § 1 on account of a refusal by the domestic courts to examine questions that were essential for the outcome of disputes between the applicants and the authorities, that refusal being explained by the fact that the questions had been dealt with beforehand by the authorities in such a way as to bind the courts by their findings of fact.
It was necessary, however, to distinguish the present case from that of Regner v. the Czech Republic [GC], where the Court had found the Article 6 safeguards to be applicable to judicial proceedings concerning the withdrawal of a security certificate, which had been crucial for the applicant’s possibility of fully exercising his duties and for his capacity to find a new post in the civil service, and where the proceedings had been accompanied by sufficient safeguards under Article 6 § 1. In particular, unlike the Bulgarian Supreme Administrative Court in the present case, the Czech Supreme Administrative Court had had full jurisdiction to rule on the dispute between Mr Regner and the authorities: it had access to all the classified documents in the file which were used to support the authorities’ decision; it could assess the reasons given for not disclosing classified documents and, if necessary, order their disclosure; its jurisdiction was not limited to examination of the grounds relied on by Mr Regner; and it was able to examine whether there was any justification for the decision to revoke his security clearance.
In the present case, the dispute concerning the applicant’s dismissal had not been examined by a court with “full jurisdiction” to examine all the factual and legal circumstances, of a civil nature, that were relevant to the present case.
Conclusion: violation (unanimously).
Article 41: EUR 2,400 in respect of non-pecuniary damage.
(See Myriana Petrova v. Bulgaria, 57148/08, 21 July 2016; Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 20390/92, 10 July 1998; and Regner v. the Czech Republic [GC], 35289/11, 19 September 2017, Information Note 210; see also Ternovskis v. Latvia, 33637/02, 29 April 2014)
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This summary by the Registry does not bind the Court.
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