FOURTH SECTION
CASE OF NEDELCHEV v. BULGARIA
(Application no. 30543/13)
JUDGMENT
This version was rectified on 28 September 2021 under Rule 81 of the
Rules of Court
STRASBOURG
8 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Nedelchev v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Armen Harutyunyan, President,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 30543/13) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Nedelcho Rusev Nedelchev (“the applicant”), on 30 April 2013;
the decision to give notice to the Bulgarian Government (“the Government”) of the complaint concerning the alleged failure of the Supreme Administrative Court to respond to an essential argument of the applicant and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision to reject the Government’s objection to the examination of the application by a Committee;
Having deliberated in private on 11 May 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns a complaint under Article 6 § 1 of the Convention that, in judicial proceedings concerning the applicant’s dismissal on disciplinary grounds, the Supreme Administrative Court failed to respond to a key argument put forward by him.
THE FACTS
2. The applicant was born in 1965 and lives in Sliven. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
3. The Government were represented by their Agent, Ms B. Simeonova, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant is a former police officer.
6. On 20 March 2010 the head of the local police directorate, B. (at the time the applicant’s superior), threatened and harassed the staff of a night club where he was having drinks with friends. A police patrol arrived and the officers drew up reports on the event.
7. Subsequently, the applicant collected the reports and ordered the officers, who were his subordinates, to draw up new reports describing the circumstances of the incident in a different way, absolving B. of any fault.
8. An internal inquiry was started. Its initial findings were presented to the Minister of the Interior in a memorandum dated 13 May 2010. The document described the applicant’s behaviour as “misgivings related to the preparation and registration of the necessary documents”, and proposed that he be reprimanded.
9. On 6 August 2010 the Minister of the Interior ordered an additional inquiry, and as a result, a new memorandum was submitted to him on 13 September 2010. It described the applicant’s behaviour in more detail, stating that he had tried to cover up the incident involving B. and to obstruct the internal investigation. The commission that had authored the document proposed that he be dismissed on disciplinary grounds.
10. Disciplinary proceedings were formally opened against B. and the applicant on 30 September 2010. Both of them were reproached of covering up the initial incident by manipulating the evidence.
11. The applicant was invited to comment on the allegations against him. Further materials in the case, including the applicant’s comments, were summarised in a new memorandum submitted to the Minister of the Interior on 29 October 2010.
12. On 19 November 2010 the Minister ordered the applicant’s dismissal on disciplinary grounds.
13. The applicant sought a judicial review of the Minister’s order, arguing, among other things, that the disciplinary punishment had been imposed after the expiry of the two-month time-limit set out under section 225 of the Ministry of the Interior Act (hereinafter “section 225” – see paragraph 20 below). He contended that the two-month period provided for therein had started to run on 13 May 2010.
14. The dismissal order was upheld by a three-member panel of the Supreme Administrative Court in a judgment of 20 February 2012. It stated the following in particular:
“The order has been issued in accordance with [the procedural rules]: the disciplinary proceedings were opened by a decision of the [competent body], [and] the inquiry was carried out by a disciplinary commission, which established the facts, collected evidence and informed the officer of its findings, allowing him an opportunity to organise his defence. The findings of the inquiry were summarised in a memorandum and sent to the body competent to impose a disciplinary punishment, and the punishment was imposed within the time-limits provided for under section 225 ...”
15. The applicant lodged a cassation appeal. He put forward different arguments, including the one relying on section 225. In that latter regard he mentioned “previous inquiries” into the incident involving B.
16. A prosecutor participating in the proceedings as a third party argued, for her part, that the dismissal was lawful, and expressly addressed the applicant’s argument under section 225. She considered that the relevant two months’ period had started running only when all relevant circumstances had become known, namely on 29 October 2010 (see paragraph 11 above).
17. In a final judgment of 8 November 2012, a five-member panel of the Supreme Administrative Court upheld the three-member panel’s judgment. It did not specifically comment on the compliance of the Minister’s order with the time-limit set out in section 225.
18. In parallel proceedings concerning B., who had also been dismissed on disciplinary grounds on 19 November 2010 for the cover-up of the same incident (see paragraphs 6-7 above), a five-member panel of the Supreme Administrative Court found in a final judgment of 18 December 2012 that the time-limit under section 225 had started to run on 13 September 2010. B.’s dismissal had been ordered more than two months later, rendering it unlawful.
19. In March 2013 the applicant applied for the reopening of the judicial proceedings. He argued that he had been unlawfully denied an opportunity to participate in them, since he had been unable to attend the hearing before the five-member panel of the Supreme Administrative Court. On 1 July 2013 his application was dismissed as time-barred in a final judgment delivered by the Supreme Administrative Court.
RELEVANT LEGAL FRAMEWORK
20. Section 225 of the Ministry of the Interior Act 2006, in force until 2014, provided that a disciplinary punishment could be imposed on a Ministry official within one year (or two years in serious cases) after the commission of a disciplinary offence, but not later than two months after the discovery of that offence.
21. Section 223 of the Regulations on the application of that Act provided that the “discovery” of an offence referred to the moment where “the body competent to impose a disciplinary punishment establish[ed] the offence committed and the identity of the perpetrator”. An offence was “established” when the materials from the disciplinary proceedings were submitted to the competent body.
THE LAWALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22. The applicant complained that the Supreme Administrative Court had failed to respond to his argument concerning the compliance of his dismissal with section 225. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”Admissibility
23. The Government raised an objection of non-exhaustion of domestic remedies. They pointed out that the applicant had failed to apply for the reopening of the proceedings within the relevant time-limit (see paragraph 19 above), contending that, if the proceedings had been reopened, the applicant would have been able to raise once again his argument relating to the application of section 225. The applicant did not comment on the Government’s objection.
24. The Court has already held that a request for the reopening of a case cannot usually be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention (see, among other authorities, Josseline Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002, and Šorgić v. Serbia, no. 34973/06, § 54, 3 November 2011). Therefore, the applicant was not obliged to avail himself of the remedy in question, including by pursuing it within the relevant time-limits.
25. The Court notes additionally that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits
26. The parties disagreed as to which aspect of Article 6 § 1 of the Convention was applicable to the present case. The applicant contended that his dismissal on disciplinary grounds was equivalent to a “criminal charge”, while the Government referred to “civil rights and obligations”.
27. The applicant pointed out that his argument under section 225 had been decisive for the outcome of the case, and that the five-member panel of the Supreme Administrative Court had failed to comment on it in any way. At the same time, in the proceedings brought by B., who had been disciplined for the cover-up of the same incident, the Supreme Administrative Court had examined and found meritorious an identical argument, finding B.’s dismissal on disciplinary grounds unlawful (see paragraph 18 above). The applicant contended that sufficient information on his disciplinary offence had been brought to the attention of the Minister of the Interior on 13 May 2010 (see paragraph 8 above), and that, at the latest, that offence had been “established” on 13 September 2010 (see paragraph 9 above).
28. The Government argued that the three-member panel of the Supreme Administrative Court had responded to the applicant’s argument relating to the application of section 225, indicating “with sufficient clarity” that it considered the two-month time-limit provided for therein to have started to run on 29 October 2010. The five-member panel had upheld the three‑member panel’s judgment. The position that the two-month time-limit had started to run on 29 October 2010 was in accordance with domestic law, and the judgment of 19 November 2010 concerning B. (see paragraph 18 above) was incorrect.
29. The Court has on many occasions held that disciplinary proceedings concerning the dismissal of a public officer did not involve the determination of a criminal charge (see, concerning a police officer, Grace Gatt v. Malta, no. 46466/16, § 58, 8 October 2019; see also, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, § 43, 25 September 2018, and Suküt v. Turkey (dec.), no. 59773/00, 11 September 2007). It sees no reason to conclude otherwise in the case at hand. Furthermore, seeing that the Government did not contest the applicability, in principle, of Article 6 § 1 of the Convention (see paragraph 26 above) and that there is a presumption in that regard (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007‑II), the Court finds Article 6 § 1 applicable under its civil head (see Ivan Stoyanov Vasilev v. Bulgaria, no. 7963/05, §§ 26-28, 4 June 2013).
30. The Court reiterates that Article 6 § 1 of the Convention obliges domestic courts to give reasons for their decisions (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A; Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007‑I; and Idakiev v. Bulgaria, no. 33681/05, § 48, 21 June 2011). The extent to which this duty applies may vary according to the circumstances of the individual case (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 37, 20 March 2009).
31. In the present case, the applicant argued that his dismissal on disciplinary grounds had been unlawful, as it had been ordered in breach of section 225 (see paragraphs 13 and 15 above). That provision stated that a disciplinary punishment had to be imposed within two months after the discovery of the respective disciplinary offence, that is to say, after such an offence had been “established” by the body competent to impose a punishment (see paragraphs 20-21 above).
32. Although the parties made submissions on that issue (see paragraphs 27-28 above), it is not the Court’s task to determine whether the argument raised by the applicant was well-founded (see Ruiz Torija, cited above, § 30). Nevertheless, the Court points out that the applicant’s complaint was at the least arguable: several memorandums were submitted to the Minister of the Interior during the investigation of the incident of 20 March 2010 (see paragraphs 8-9 and 11 above), and in the parallel proceedings brought by B., concerning the same events, the Supreme Administrative Court found that the memorandum of 13 September 2010 had “established” the disciplinary offence, meaning that B.’s dismissal ordered on 19 November 2010 had been unlawful, as it had been in breach of section 225 (see paragraph 18 above).
33. Furthermore, the argument at issue was clearly relevant. If the Supreme Administrative Court had found it meritorious, it would have had to set aside the applicant’s dismissal as unlawful, as it had done in B.’s case.
34. The Supreme Administrative Court was therefore under an obligation to give a specific and express reply to the argument at issue (see Hiro Balani v. Spain, 9 December 1994, § 28, Series A no. 303‑B).
35. The Government argued that this had been done, as the three‑member panel had discussed the matter expressly and the five-member panel had endorsed its conclusions (see paragraph 28 above).
36. The Court observes that the three-member panel of the Supreme Administrative Court did in fact comment on the applicant’s argument under section 225, stating that the relevant time-limits provided for therein had been complied with, just after mentioning that the applicant had been allowed to respond to the allegations against him and that the findings of the internal inquiry had been presented to the Minister of the Interior (see paragraph 14 above). Since it was the memorandum of 29 October 2010 which had been drawn up after the applicant had been given the opportunity to comment (see paragraph 11 above), it may be assumed that the three‑member panel considered this document to represent the “establishment” of the disciplinary offence and thus to trigger the running of the relevant two-month period. Nevertheless, it should be pointed out that the three-member panel’s position was never clearly stated.
37. As to the five-member panel of the Supreme Administrative Court, the Court reiterates that the notion of a fair trial requires that a national court which has given sparse reasons for its decisions, whether by incorporating the reasons of a lower court or otherwise, should address the essential issues which were submitted to its jurisdiction and should not merely endorse without further ado the findings reached by a lower court (see Helle v. Finland, 19 December 1997, § 60, Reports of Judgments and Decisions 1997‑VIII).
38. The five-member panel of the Supreme Administrative Court failed to address the argument raised by the applicant, despite the applicant having repeated it in his cassation appeal (see paragraphs 15-17 above), whereas the lower judicial body (the three-member panel), as mentioned, gave imprecise and sparse reasons for dismissing that argument.
39. In view of the foregoing, the Court finds that the Supreme Administrative Court failed to duly consider the applicant’s essential argument and to give reasons for its conclusions, as required under Article 6 § 1 of the Convention.
40. There has accordingly been a violation of that provision.APPLICATION OF ARTICLE 41 OF THE CONVENTION
41. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
42. The applicant claimed 10,230 euros (EUR) in respect of pecuniary damage – the equivalent of ten months’ wages at the Ministry of the Interior. He stated that, had his employment been terminated on any ground other than a disciplinary dismissal, he would have received a bonus payment in that amount. In respect of non-pecuniary damage, the applicant claimed EUR 10,000.
43. The Government contested those claims.
44. The Court has found a violation of Article 6 § 1 of the Convention on the ground that the Supreme Administrative Court failed to examine an essential argument raised by the applicant. As already mentioned, the Court cannot speculate on whether that argument was well-founded (see paragraph 32 above), and thus on what the outcome of the proceedings would have been had the requirements of Article 6 § 1 been complied with. Accordingly, the Court sees no reason to award the damage claimed by the applicant (see, for example, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 315, 13 September 2016).
45. As in previous similar cases (see, for example, Yanakiev v. Bulgaria, no. 40476/98, §§ 89-90, 10 August 2006, and Idakiev v. Bulgaria, no. 33681/05, §§ 69-70, 21 June 2011), the Court is of the view that the most appropriate form of redress would be to reopen the domestic proceedings in due course and re‑examine the case in keeping with all the requirements of a fair trial.
46. As to costs and expenses, the applicant claimed EUR 588.22 for expenses incurred in the domestic proceedings. He claimed a further EUR 5,280 for the remuneration of his lawyers before the Court, submitting invoices showing that he had paid them EUR 1,200. He claimed an additional EUR 241.85 for postage, translation services, copying and printing. The applicant requested that any amount awarded, apart from the EUR 1,200 already paid by him, be transferred directly to the law firm of his legal representatives, Ekimdzhiev and Partners[1].
47. The Government contested those claims.
48. The applicant has not shown that the expenses incurred by him in the domestic proceedings were necessary, that is, that they related to an attempt on his part to remedy the violation of the Convention (see Idakiev, cited above, § 78). Therefore, this claim must be dismissed.
49. As to the proceedings before the Court, taking note of the circumstances of the case, in particular its repetitive nature, the Court awards the applicant EUR 1,500 to cover costs and expenses under all heads, plus any tax that may be chargeable to the applicant. As requested (see paragraph 46 above), EUR 1,200 are to be paid to the applicant, and the remainder – to the law firm Ekimdzhiev and Partners[2].
50. Lastly, the Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to him, in respect of costs and expenses, to be converted into Bulgarian levs at the rate applicable at the date of settlement; EUR 1,200 (one thousand two hundred euros) of the above sum are to be paid to the applicant, and the remainder – to the law firm Ekimdzhiev and Partners[3];
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_2}
Ilse Freiwirth Armen Harutyunyan
Deputy Registrar President
[1] Rectified on 28 September 2021: the text was “…be transferred directly to his legal representatives, Mr Ekimdzhiev and Ms Boncheva (see paragraph 2 above).”
[2] Rectified on 28 September 2021: the text was “…and the remainder – to his legal representatives.”
[3] Rectified on 28 September 2021: the text was “…and the remainder – directly to his legal representatives.”
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