Violation of right to a fair hearing for lack of full judicial review of the lawfulness of a dismissal
Aleksandar Sabev v. Bulgaria 19.07.2018 (no. 43503/08)
The case concerned judicial proceedings brought by the applicant, a military intelligence officer, to challenge the lawfulness of his dismissal after his clearance to access classified information had been withdrawn.
The Court found that the lawfulness of Mr Sabev’s dismissal depended entirely on whether or not it had been justified to withdraw his clearance for access to classified information, as required by his post. It further noted that the Supreme Administrative Court, before which the lawfulness of the dismissal had been challenged, had simply referred to the decision of the State Commission, pointing out that it contained no reasoning and could not be appealed against. The Court therefore took the view that the applicant’s employment dispute related to his dismissal had not been examined by a court with “full jurisdiction”.
Article 6 § 1
The applicant, Aleksandar Sabev, is a Bulgarian national, who was born in 1967 and lives in Sofia (Bulgaria). At the relevant time he was employed by the Bulgarian Military Intelligence Service.
In May 2005 a State Commission withdrew Mr Sabev’s clearance to access classified information. He was subsequently transferred to the intelligence unit of the army’s general staff. In August 2006 his clearance for access to classified information in that new post was likewise withdrawn. In March 2007 the Defence Minister dismissed him on the grounds that he no longer fulfilled the requisite conditions to occupy his post.
In April 2007 Mr Sabev appealed against his dismissal to the Supreme Administrative Court, complaining about the lack of reasoning in the decision. In November 2007 the court dismissed his appeal. Mr Sabev appealed on points of law to the Supreme Administrative Court. In March 2008 it upheld the judgment of the lower court, finding that the Minister had been obliged to dismiss him after his clearance had been withdrawn. It took the view that a decision withdrawing clearance did not have to contain reasons and could not be challenged before the courts by way of judicial review.
THE DECISION OF THE COURT
Article 6 § 1
The Court observed that the issue for Mr Sabev was not his right of access to State secrets, which was not guaranteed by the Convention, but his right to hold a civil service post which had been affected by the withdrawal of his clearance to access classified information. Consequently, the dispute concerned his “civil rights” within the meaning of Article 6 § 1 of the Convention. The Court noted that it was after the judicial proceedings in question, within a period not exceeding six months, that the applicant had lodged his application. The Government’s objection that he had not complied with the six-month rule was thus dismissed.
The Court found that the Minister of Defence had not dismissed Mr Sabev in the exercise of discretionary powers, but had been obliged to take that decision. The lawfulness of the dismissal thus depended entirely on whether or not it had been justified to withdraw his clearance. The Court further noted that the Supreme Administrative Court had not addressed the question whether the withdrawal of his clearance had been justified by any misconduct on Mr Sabev’s part, but had simply referred to the decision of the State Commission, pointing out that it contained no reasoning and could not be appealed against.
The Court therefore took the view that the applicant’s employment dispute related to his dismissal had not been examined by a court with “full jurisdiction” to examine all the relevant factual and legal circumstances of the case. Accordingly, there had been a violation of Article 6 § 1 of the Convention, under its civil limb.
Just satisfaction (Article 41)
The Court held that Bulgaria was to pay the applicant 2,400 euros (EUR) in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses(echrcaselaw.com editing).