FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 40908/05
by Krasimir Georgiev FAZLIYSKI
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 1 June 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar
Having regard to the above application lodged on 10 November 2005,
Having regard to the Court's decision to examine jointly the admissibility and merits of the case (Article 29 § 1 of the Convention),
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Krasimir Georgiev Fazliyski, is a Bulgarian national who was born in 1962 and lives in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was an officer, who worked at a department dealing with national security issues within the Ministry of the Interior. The exact nature of the applicant's duties is not clear. He had the rank of a major.
In March 2003 a procedure for assessing whether he was psychologically apt for his work in the Ministry of the Interior was initiated. This procedure ended in an expert opinion of 9 May 2003, in which experts from the Psychology Institute of the Ministry of the Interior (PIMI) found that he was psychologically inapt for his work.
On 17 June 2003 the applicant was dismissed as being psychologically inapt to work in the Ministry of the Interior.
He appealed before the Supreme Administrative Court contesting the objectivity and the results of the expert opinion and the lawfulness of the dismissal procedure.
In a judgment of 11 October 2004 the Supreme Administrative Court dismissed the applicant's appeal, finding that there were no procedural breaches. The Supreme Administrative Court held that it was not competent to examine the results of the psychological expert opinion of 9 May 2003. Experts' opinions in such cases were “irrefutable proof” of inaptitude and the PIMI was “the sole body competent to decide on this issue”.
The applicant appealed further. He challenged, inter alia, the psychological assessment procedure and the independence of the experts from the PIMI. He disagreed with the domestic court's conclusions that the PIMI was the only body competent to carry out such an examination and that the court could not review the results of the expert opinion. He pointed out that according to the judgment of 8 February 2005 of the Supreme Administrative Court there should be judicial review of the psychological aptitude assessment.
In a final judgment of 17 May 2005 the extended panel of the Supreme Administrative Court dismissed the applicant's appeal and upheld his dismissal.
It is not clear whether the applicant was legally represented throughout the proceedings.
The applicant did not submit copies of the domestic courts' judgments as his case was classified and, although he was apparently able to read their reasoning, he was not provided with copies of the judgments.
B. Relevant domestic law and practice
Pursuant to section 253(1)(5) of the Ministry of Interior Act (MIA) of 1997 and section 251(1) (6) of the Regulations on its implementation of 1998, both in force until 2006, psychological inaptitude for work established by experts from the PIMI was a ground for dismissal of officers from the Ministry of the Interior.
By a judgment of 8 February 2005 the Supreme Administrative Court (Реш. 1219 от 8 февруари 2005 г. по адм. д. 4773/2004 г.), examining the compatibility of the Regulations with the legislation, repealed the words “established by the Psychology Institute of the Ministry of the Interior” in section 251(1)(6) of the Regulations, holding, inter alia, that the experts in the PIMI could not be considered independent as they were employed by the Minister of the Interior. It found that the fact that the requirement that expert opinions on the psychological inaptitude could only be given by these experts was contrary to the Constitution and to the legislation. The court also held:
“...Expert opinions on the psychological inaptitude for work in the Ministry of the Interior should be subject to the same control for lawfulness, [namely] by several independent experts and by the court, as in the case of assessing health condition [for purposes of granting disability benefits]...”
Pursuant to section 171 of the Regulations the professional experience, psychical and psychological aptitude of the officers in the Ministry of the Interior were to be assessed periodically under a procedure and conditions determined by the Minister of the Interior. Section 171 was revoked in April 2003, without prejudice to the provisions authorising the Minister to dismiss officers who were psychologically inapt.
COMPLAINTS
1. The applicant, invoking Article 13 of the Convention, complains that he did not have effective remedies to protect his rights as the results of the expert opinion on his psychological inaptitude for work could not be appealed against and were not subject to judicial control.
2. The applicant complains under Article 6 § 1 of the Convention that he was not provided with original copies of the domestic courts' judgments due to the classified character of the case.
3. The applicant complains under Article 6 § 1 of the Convention that he was deprived of a fair trial as in May 2005 the Supreme Administrative Court rejected his appeal disregarding its earlier judgment of 8 February 2005.
4. He also contends under Article 6 § 1 of the Convention that the domestic courts did not take into account the fact that section 171 of the Regulations and other relevant provisions governing periodic psychological assessment were repealed shortly after his assessment had been ordered.
THE LAW
A. The first three complaints of the applicant
Without prejudice to questions of applicability and compliance, the Court considers that these complaints fall in principle to be examined under Article 6 § 1 of the Convention which reads, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... Judgment shall be pronounced publicly ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. The remainder of the applicant's complaints
The Court has examined the remainder of the applicant's complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the scope of judicial review in the proceedings following his dismissal, the impossibility to obtain copies of the judgments in his case and the fact that in its judgment of May 2005 the Supreme Administrative Court disregarded its earlier judgment of 8 February 2005;
Declares the remainder of the application inadmissible.
Stephen PhillipsPeer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy