Dismissal of a judge because he benefited a party and was not impartial! Non-violation of respect for his privacy
JUDGMENT
Donev v. Bulgaria 26.10.2021 (app. no. 72437 /11)
SUMMARY
The case concerned disciplinary proceedings to dismiss the applicant, a judge and a court president.
He complained, in particular, that the Supreme Judicial Council (SJC) and the Supreme
Administrative Court had not satisfied the requirements of independence and impartiality set out in
Article 6 of the Convention.
The Court observed that the Supreme Administrative Court had held sufficiently broad jurisdiction
and that the shortcomings in the proceedings before the SJC alleged by the applicant could have
been corrected, as appropriate, in the framework of the judicial proceedings.
The Court noted that the judges of the Supreme Administrative Court enjoyed institutional
guarantees ensuring their independence and impartiality. As regards the SJC’s disciplinary powers
vis-à-vis those judges, it pointed out that such powers were insufficient on their own to cast doubt
on their independence and impartiality. It observed that in this case the applicant had not relied, in
his initial application, on any structural deficiencies in the composition of the SJC, and noted no
obvious personal bias on the part of any specific members of the SJC liable to call into question the
independence and impartiality of the Supreme Administrative Court, which was responsible for
reviewing that body’s decisions. By the same token, neither the SJC’s powers in budgetary matters
and in the sphere of judges’ careers nor the disciplinary powers of the President of the Supreme
Administrative Court were such as to suggest that the applicant’s apprehensions had been
objectively justified, in the absence of material evidence pointing to bias on the part of the judges of
the Supreme Administrative Court. Consequently the Court found no lack of independence and
impartiality in the Supreme Administrative Court.
Nor did it note a breach of any other aspects of the fairness of proceedings.
Finally, the Court considered that the applicant had enjoyed appropriate procedural guarantees and
that the disciplinary sanction imposed on him had been justified on relevant and sufficient grounds
proportionate to the breaches of professional duty noted. The sanction had therefore not amounted
to a disproportionate interference in his right to respect for private life.
THE DECISION OF THE COURT…
The applicant, Ruslan Nikolov Donev, is a Bulgarian national who was born in 1963 and lives in
Targovishte (Bulgaria).
In August 2008 an article was published in the national press titled “Twelve million levs in embezzled
funds circulating nationwide”. The article accused Mr Donev, who was a judge and, at the time, a court president, of having issued a writ of execution under suspicious circumstances in a case of embezzlement from a bank by several of its shareholders. Mr X, a lawyer who had been involved in
this embezzlement case, had allegedly sold debts related to outstanding fees to a third person, Y, who had then applied to Targovishte District Court to issue a writ of execution in respect of the said debt purchase agreement. The article further claimed that Mr Donev had examined the application
for a writ of execution even though his court lacked the requisite territorial jurisdiction, had assigned
the case to himself in breach of the rules on random apportionment of cases, and had found for the
claimant. He had allegedly also exempted Y from payment of court fess, even though the value of
the dispute had totalled several million levs. In the wake of the article and several complaints lodged
with the Supreme Judicial Council (SJC), the SJC Inspector General ordered an inspection. Mr X was
murdered in March 2009. The third person, Y, was arrested and charged with aiding and abetting
murder in connection with this embezzlement case. He was found guilty and convicted as charged.
On 26 September 2008 the Inspectorate invited the SJC to bring disciplinary proceedings against
Mr Donev and to dismiss him from his judicial duties. The plenary SJC examined the case at a
meeting held on 4 February 2009. The proposal to dismiss the applicant was subsequently put to the
vote and adopted by 13 votes to 9, with 1 abstention.
Mr Donev appealed to the Supreme Administrative Court against the SJC’s decision. By judgment of
12 April 2010 a three-judge bench of the Supreme Administrative Court declared the appeal illfounded and dismissed it. Mr Donev appealed on points of law.
In its judgment of 16 July 2010 the five-judge bench of the Supreme Administrative Court concluded
that the SJC’s decision had been given in breach of the procedural rules, inasmuch as it had imposed
two disciplinary sanctions on the applicant – dismissal from his position as administrative director
and dismissal from his post as judge – for one single series of disciplinary offences, that is to say
failure to comply with the rules on random apportionment of cases and the self-assignment of eight
cases of infringement of those rules. Having regard to those breaches, the five-judge bench decided
to set aside the first judgment and the SJC’s decision and to refer the case back to the SJC for reexamination.
Following that referral, the plenary SJC examined the case at a meeting held on 16 September 2010.
By secret ballot, the SJC ordered the applicant’s dismissal from his post as judge by 13 votes to 5,
with 4 abstentions. Since his term as court president had meanwhile ended, the question of his
dismissal from that post had lapsed.
Mr Donev filed an action to set aside the decisions. By judgment of 14 July 2011, the five-judge
bench set aside the first judgment and, ruling on the merits of the applicant’s appeal, dismissed it,
concluding that the SJC’s second decision had been taken in accordance with the duly established
facts and with proper application of substantive law and that the sanction imposed had been
proportionate to the offences committed.
Relying on Article 6 § 1 (right to a fair trial), the applicant submitted that the disciplinary proceedings
against him had been unfair, claiming that the SJC and the Supreme Administrative Court had not
complied with the requirements of independence and impartiality. Relying on Article 8 (right to
respect for private life) and Article 13 (right to an effective remedy), he argued that his dismissal had
amounted to an unjustified infringement of his right to reputation and honour.
THE DECISION OF THE COURT…
Article 6
The Court noted that under domestic law the SJC was a judicial body which was considered neither
as a court nor as a traditional administrative body answerable to the executive. The SJC was a body
established by law which, when determining disciplinary cases, had full jurisdiction to assess the
facts in issue and to determine the liability of the accused judge, following proceedings regulated by
law. It could therefore be considered, within the meaning of the Court’s case-law, as a judicial body
to which the guarantees of Article 6 were applicable. In the present case the Court did not consider
it necessary to determine whether the proceedings before the SJC had been in conformity with
Article 6 of the Convention, having regard to the conclusions which it reached concerning the
Supreme Administrative Court’s compliance with the requirements under that provision and the
scope of the scrutiny conducted by that court.
The Court observed that the Supreme Administrative Court had held jurisdiction to consider the
questions of fact which it considered relevant and the legal characterisation of disciplinary offence
ascribed to the applicant’s acts or omissions. The Supreme Administrative Court could also ascertain
whether the SJC had taken proper account of the criteria prescribed by law concerning the
proportionality of the sanction.
The Court noted that the SJC decision had been taken following proceedings which had been
accompanied by a number of procedural guarantees. Detailed rules on the conduct of proceedings
had been laid down in law, compliance with which was supervised by the judge. If the Supreme
Administrative Court had deemed the applicant’s arguments well-founded, it had been empowered
to set aside the SJC’s decision and to refer the case back to the same body for reconsideration,
which it had already done on one occasion.
In this case, therefore, the Supreme Administrative Court would appear to have held sufficiently
broad jurisdiction, and the shortcomings in the proceedings before the SJC alleged by the applicant
could have been corrected, as appropriate, in the framework of the judicial proceedings.
As regards the independence and impartiality of the Supreme Administrative Court, the Court
observed that it was the highest-level court in Bulgaria in the administrative sphere. It was made up
exclusively of professional judges with guaranteed tenure, who benefited from safeguards set out in
the Constitution and legislation and were subject to incompatibility requirements such as to
guarantee their independence and impartiality. The SJC had been set up and been assigned powers
in the spheres of management of the judiciary and judicial careers and discipline in order to ensure
the independence of the justice system from the other powers. Furthermore, the establishment of
judicial supervision by the Supreme Administrative Court had helped guarantee compliance by the
SJC with the procedural rules and ensure the lawfulness of its decisions.
The Court observed that the applicant had not relied, in his initial application, on the existence of
structural deficiencies in the composition of the SJC. Furthermore, the Court noted no obvious
personal bias on the part of any specific members of the SJC liable to cast doubt on the
independence and impartiality of the Supreme Administrative Court, which was responsible for reviewing that body’s decisions. The Court noted the lack of material evidence capable of revealing bias on the part of Supreme Administrative Court judges, such as the fact of disciplinary or criminal
proceedings being pending against a member of one of the trial benches which had examined the
applicant’s appeals. More broadly, the Court had no evidence that the SJC had brought wrongful
proceedings against judges of the Supreme Administrative Court under circumstances liable to call
their independence into question.
As regards the SJC’s powers in the area of judicial promotions and careers, the Court noted that the
judges of the Supreme Administrative Court had reached a high point in their careers and, in
principle, would not be seeking promotion or secondment to a different court. Thus the President of
the Supreme Administrative Court, who was a member of the SJC, had not been included on the
judicial benches which had determined the applicant’s case. His powers in the disciplinary sphere
were not sufficient to justify the applicant’s fears, in the absence of evidence to the effect that the
judges having determined his case had acted on the instructions of the president of the court in
question or had been otherwise biased. The Court considered therefore that the applicant’s
apprehensions could not be deemed objectively justified. Noting no lack of independence and
impartiality in the Supreme Administrative Court, the Court accordingly concluded that there had
been no violation of Article 6 of the Convention in that regard.
The Court did detect a formal contradiction on one point: the 16 July 2010 judgment had stated that
the decision to exempt a litigant from payment of court fees could not have amounted to a
disciplinary offence, whereas the 14 July 2011 judgment had ruled that that same decision had
raised a disciplinary issue. However, the evidence presented by the applicant did not suggest that
there were any “deep-seated and persistent divergences” in the Supreme Administrative Court’s
case-law, within the meaning of the case-law of the Court. Moreover, the Court observed that the
16 July 2010 judgment had not determined the merits of the case, such that the proceedings relating
to the applicant’s disciplinary liability had remained pending after the 16 July 2010 judgment. That
judgment had not acquired the authority of res judicata since it had not put an end to the applicant’s
dispute. The Court therefore considered that in the present case there had been no infringement of
the principle of legal certainty or the fairness of the judicial proceedings.
Lastly, as regards the new facts taken into account by the Supreme Administrative Court in its 14 July
2011 judgment, which related to the exemption from court fees and had not been covered by the
decision given by the SJC on 16 September 2010, it transpired from the appeal lodged by the
applicant himself that the latter had considered that those facts had indeed been taken into account
by the SJC. It would therefore appear that the facts in issue had been adduced in proceedings and
that the applicant had been able to plead on this matter.
Article 8
The applicant had been dismissed on the grounds that he had infringed several rules and obligations
relating to his duties as a judge and court president. The applicant had benefited from legal
assistance and had had an opportunity to plead in his defence both before the SJC, during the
disciplinary proceedings, and before the Supreme Administrative Court, in the framework of the
judicial review of the SJC’s decisions.
As regards the proportionality of the sanction imposed, the domestic authorities had justified their
decision with an assessment of the seriousness of the faults committed by the applicant, that is, on
the one hand, the deleterious consequences for the prestige of the judiciary, having regard to the
suspicions of corruption prompted by the revelations in the press, and on the other hand, the
applicant’s protracted failure to comply with his obligations as court president in assigning cases.
The Court considered that the applicant had benefited from adequate procedural guarantees and
that, having regard to the margin of appreciation available to the domestic authorities in this sphere,
the disciplinary sanction imposed on him had been justified on relevant and sufficient grounds proportionate to the breaches of professional duty noted, such that it had not amounted to a disproportionate interference in his right to respect for private life. The applicant’s complaint
therefore had to be rejected as ill-founded.
