European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68145/01
by Petar Hristov DESHEV
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 3 July 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 8 December 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Petar Hristov Deshev, is a Bulgarian national who was born in 1957 and lives in Pleven.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The applicant’s dismissal and the Supreme Administrative Court’s judgments of 2000

The applicant is a medical doctor. In 1982 he became army service officer. For a number of years he worked as a military medical doctor.

In 1989 or in the following several years the applicant experienced problems related to his mental health. It appears that he was hospitalised several times.

In 1994 a military medical commission examined the applicant and concluded that in 1989-1991 he had suffered a mental disorder of the type of schizophrenia. The commission considered that the applicant was fit for service but should be exempted from guard duty and should not be placed in situations involving physical or psychological stress.

On 1 March 2000, the Central Military Medical Commission (“CMMC”) certified, after an examination, that the applicant was not fit for military service as he suffered from schizophrenia.

On 21 March 2000 he was dismissed from the army by order of the Minister of Defence. The applicant appealed to the Supreme Administrative Court. He sought unsuccessfully to adduce medical and other evidence that he was not suffering from schizophrenia.

On 20 June 2000 the Supreme Administrative Court rejected the appeal. It noted that the impugned dismissal had been based on a certification by the CMMC that the applicant was not fit for military service. The dismissal order had been issued in compliance with the relevant procedure and its substance was in conformity with the aims embodied in the relevant law. In so far as the applicant had challenged the conclusions of the CMMC, its members’ competence and their methods, those issues were irrelevant. The CMMC’s certification was final, not amenable to appeal and binding for the Supreme Administrative Court.

The applicant appealed.

On an unspecified date in 2000, a five-member chamber of the Supreme Administrative Court rejected the appeal. That decision was final.

2.  Other events

In the years following his dismissal, the applicant submitted a number of appeals and complaints to various institutions seeking, inter alia, the prosecution of CMMS members, the reopening of the proceedings before the Supreme Administrative Court and rectification of alleged errors in its judgments. The applicant also engaged in numerous proceedings concerning, inter alia, his unsuccessful attempt to obtain a license to engage in medical practice, alleged dissemination of false information about his mental health, his unsuccessful attempts to obtain recognition for his scientific achievements and problems with his mail. In so far as some of those matters fell within the competence of the Bulgarian courts, they have not been examined in proceedings that ended by final judgments.

B.  Relevant domestic law and practice

Section 128 (4) of the Defence and Armed Forces Act (“the DAFA”) provides that a military officer’s term of service shall be terminated when he was certified unfit for service by the relevant medical authority.

All dismissal orders in the army are amenable to judicial review (section 132 of DAFA). In the present case the Supreme Administrative Court had jurisdiction to examine the appeal based on the relevant administrative procedure law, which provides that appeals against administrative decisions issued by ministers are examined by the Supreme Administrative Court.

Pursuant to section 185(2) of the Military Service Regulations, as in force between 1999 and 2001 (superseded by section 192(2) of the 2001 Regulations), the certification by a military medical commission that an army service person is unfit is final and is not amenable to appeal.

According to the predominant judicial practice, the courts have no power to substitute their assessment of the individual’s medical condition for that of the CMMC (реш. No.966/05.02.2004, адм.д.10302/2003, ВАС 5-чл. състав; реш.7651/10.07.2006, адм.д. 1083/2006). This practice is consonant with the Bulgarian courts’ approach to judicial review of administrative decisions in general. In particular, the courts often limit their examination of appeals against administrative decisions to a verification of the act’s “formal lawfulness” – they examine whether or not the decision was issued by the relevant official in the relevant form and under the applicable procedure (see, for example, the judgments quoted in I.D. v. Bulgaria, no. 43578/98, §§22-24, 28 April 2005).

In a recent case, the Supreme Administrative Court stated that although CMMC certifications were not amenable to appeal in separate administrative proceedings, a court examining an appeal against dismissal of an army officer had the power to re-examine, with the help of medical expert opinion, the relevant factual questions concerning the officer’s medical condition (реш. 2789/16.03.2007, адм.д. 12108/2006, ВАС 5-чл. състав).

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the proceedings concerning his dismissal, which ended by final judgment of the Supreme Administrative Court of 2000, had been unfair. He submitted, inter alia, that the courts had refused to admit evidence establishing that he did not suffer from a mental disorder and had not accepted to deal with the soundness of the CMMC’s conclusions.

The applicant also raised complaints concerning the refusal of the prosecuting authorities to institute criminal proceedings against CMMS members and other persons, the judgments of the Supreme Administrative Court refusing his requests for reopening and rectification, the relevant administrative authorities’ refusal to grant him a license to engage in medical practice, his unsuccessful attempts to obtain recognition for his scientific achievements and other related matters.

THE LAW

In so far as the applicant complained of the limited scope of judicial review in the above mentioned proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.

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 or its Protocols.

It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with 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 alleged limited scope of judicial review in the proceedings concerning his dismissal;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President