Published on 4 March 2024
THIRD SECTION
Application no. 50519/21
Mila Simeonova KALINOVA
against Bulgaria
lodged on 30 September 2021
communicated on 15 February 2024
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.
The applicant was employed as a legal counsel at the State Intelligence Agency (SIA). During criminal proceedings conducted against one of the presidential advisers, the Prosecution considered that the applicant had given to that adviser classified documents. Therefore, on 25 June 2020 the SIA withdrew the applicant’s security clearance for access to classified information reasoning that she cannot be trusted to keep classified information. On 24 September 2020, the State Commission for Information Security (SCIS) upheld the withdrawal.
The applicant challenged the SCIS decision before the Supreme Administrative Court (SAC), arguing that the documents considered as classified by the Prosecution and SIA were her own reports on irregularities in the SIA work, which were not confidential. The SAC upheld the SCIS decision with a final decision of 1 April 2021. Referring to reports, prepared by employees of the SIA, that court found that the applicant acted against the national security and could not be trusted to keep classified information. The SAC indicated that those reports established the applicant’s contacts with the presidential adviser to whom she had provided information, which SIA considered to be classified.
Subsequently, on 30 June 2021, the SIA 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 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 points out, in particular, that the SAC refused to request and examine the documents that she remitted to the presidential adviser, relying solely on the SIA statements that those elements were confidential. She also invokes Article 13 in this regard. The applicant further complains under Article 10 of the Convention, taken alone and together with Article 13, that the withdrawal of her security clearance and her dismissal amounted to an unjustified interference with her freedom of expression explaining that her aim was to report irregularities in the SIA’s work to the President.
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. Has there been an interference with the applicant’s freedom of expression, in particular her right to impart information, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 (Guja v. Moldova [GC], no. 14277/04, ECHR 2008)?
3. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 10 of the Convention, as required by Article 13 of the Convention?