European Court of Human Rights

Information Note on the Court’s case-law No. 162

April 2013

Fazliyski v. Bulgaria - 40908/05

Judgment 16.4.2013 [Section IV]

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Public judgment

Lack of judicial review of assessment that intelligence officer was mentally unfit for work; lack of public delivery of judgments: violations

 

Facts - The applicant was dismissed from the National Security Service of the Ministry of Internal Affairs after being found mentally unfit to carry out his duties, which included the gathering and dissemination of secret information, by the Ministry’s Psychology Institute. A three-member panel of the Supreme Administrative Court rejected his appeal against that decision after finding that the correct procedure had been followed and that, under the terms of the legislation then applicable, it was not competent to review the results of the psychological assessment. That decision was upheld by a five-member panel of the same court. As the proceedings were classified, the applicant was not able to obtain copies of the Supreme Administrative Court’s judgments, which were not delivered publicly.

Law - Article 6 § 1

(a)  Applicability - It was uncontested that there was a dispute over a right recognised under Bulgarian law - the right not to be unfairly dismissed from one’s employment -, that the dispute was genuine and serious, and that the outcome of the proceedings before the Supreme Administrative Court was directly decisive for the right concerned. Applying the test laid down in Vilho Eskelinen and Others v. Finland concerning the applicability of Article 6 § 1 to disputes concerning the employment of civil servants, the Court noted that Bulgarian law expressly allowed judicial review of the dismissal of officers employed by the Ministry of Internal Affairs and that the applicant’s legal challenge to his dismissal had in fact been examined by the Supreme Administrative Court. Accordingly, the civil limb of Article 6 § 1 was applicable to the proceedings before that court. The fact that the proceedings concerned the applicant’s dismissal rather than a question relating to his salary, allowances or similar entitlements did not alter that conclusion.

(b)  Compliance

(i)  Lack of judicial scrutiny of assessment of applicant’s fitness for work: While Article 6 § 1 did not bar national courts from relying on expert opinions drawn up by specialised bodies to resolve disputes before them when this was required by the nature of the issues under consideration, the Supreme Administrative Court had not simply taken into account the assessment carried out by the Ministry’s Psychology Institute, it had considered itself bound by it and refused to scrutinise it in any way. That assessment had been crucial for the determination of the case. Accordingly, the conditions laid down in Article 6 § 1 could only be met if the Institute’s assessment was itself made in conformity with the requirements of that provision, but this was not the case: the assessment had been made by a body that was directly subordinate to the Minister, it had consisted of a psychological examination the results of which were not communicated to the applicant and it had not been subject to direct review by a court.

No justification has been offered for that situation. While it was true that the applicant was an officer at the National Security Directorate involved in the gathering and processing of intelligence and that legitimate national-security considerations could justify limitations on Article 6 § 1 rights, neither the Supreme Administrative Court nor the Government had sought to justify the denial of access to a court with adequate jurisdiction in terms of the legitimacy or proportionality of the aim pursued. Indeed, in other cases the Supreme Administrative Court had held that an assessment of mental fitness for work prompting dismissal should be amenable to judicial scrutiny even if it touched upon national security and the law had been changed in May 2006 to provide for direct judicial review of the mental fitness assessments of all members of the Ministry’s staff.

Conclusion: violation (unanimously).

(ii)  No public delivery of the Supreme Administrative Court’s judgments: As a result of the initial classification of the proceedings, the judgments of the Supreme Administrative Court were not delivered in public, the materials in the case file (including the judgments) were not accessible to the public and the applicant was not able to obtain copies. Although the judgments were later declassified, the fact remained that they were not given any form of publicity for a considerable period (fifteen months) without any convincing justification.

As the Court had held in a case concerning expulsion on national security grounds (Raza v. Bulgaria, no. 31465/08, 11 February 2010), the complete concealment from the public of the entirety of a judicial decision could not be regarded as warranted. The publicity of judicial decisions aimed to ensure scrutiny of the judiciary by the public and constituted a basic safeguard against arbitrariness. Even in indisputable national-security cases, such as those relating to terrorist activities, some States had opted to classify only those parts of the judicial decisions whose disclosure would compromise national security or the safety of others, thus illustrating that techniques existed which could accommodate legitimate security concerns without fully negating fundamental procedural guarantees such as the publicity of judicial decisions.

Conclusion: violation (unanimously).

Article 41: EUR 1,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, 19 April 2007, Information Note no 96)

 

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