European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF VASILEV v. BULGARIA

 

(Application no. 7963/05)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 




June 2013

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.




In the case of Vasilev v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          David Thór Björgvinsson,
          Päivi Hirvelä,
          George Nicolaou,
          Zdravka Kalaydjieva,
          Vincent A. De Gaetano,
          Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 14 May 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE




  The case originated in an application (no. 7963/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Ivan Stoyanov Vasilev (“the applicant”), on 7 February 2005.




  The applicant was represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.




  The applicant alleged that proceedings before the Supreme Administrative Court, to which he had sought judicial review of the termination of his employment as a police officer, were unfair.




  On 3 December 2009 the Government were given notice of the application. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE




.  The applicant was born in 1959 and lives in Bourgas.

A.  The termination of the applicant’s employment




  On 5 June 2003 the applicant, who was serving as a police officer in Bourgas, filed a request for early retirement. According to him, he did so against his will under threat of dismissal for disciplinary reasons. He learned of this threat from colleagues, who had heard it from their superior. The pretext for the dismissal was said to be a disciplinary penalty which had been imposed on the applicant on 30 May 2003 for having allegedly failed to act with the requisite diligence when handling an incident involving a helicopter.




  Following the applicant’s request for early retirement, and pursuant to section 253(1)(2) of the Ministry of Internal Affairs Act (“the 1997 Act”: see paragraph 15 below), the Minister of Internal Affairs decided to terminate the applicant’s employment. The order for termination was dated 13 June 2003.




  The order was served on the applicant on 22 July 2003. On receipt of the order the applicant explicitly stated that he had filed his request for early retirement against his will and under threat of a disciplinary dismissal.

B.  The proceedings before the Supreme Administrative Court




  Under section 258 of the 1997 Act in conjunction with section 36(1) of the Administrative Procedure Act 1979 (in force until 1 March 2007), the applicant had the right to seek judicial review of the order for termination of his employment by the Supreme Administrative Court. He exercised that right on 4 August 2003, alleging that there had been procedural defects in the decision to terminate his employment and that there had been no valid request for early retirement (a key condition for termination of employment), as he had filed his request under duress. He sought to rely on the testimony of four witnesses who, he maintained, would give evidence that he had not intended to retire and had only filed his request for early retirement because of the threat of dismissal.




  On 16 December 2003, during the first hearing in the case before a three-member panel of the Supreme Administrative Court, the applicant’s lawyer reiterated the request to call the four witnesses. The Minister of Internal Affairs’ counsel objected, arguing that the applicant could simply have withdrawn his request for early retirement. The prosecutor, who, as of right, participated in the appeal, considered that the witnesses should be heard in order to allow the applicant to prove his claim. Nevertheless, the Supreme Administrative Court refused the applicant’s request to call the witnesses without giving reasons. The minutes of the hearing merely stated that the court had decided not to grant the request.




  In a judgment of 23 January 2004 the three-member panel quashed the termination order, finding that, in issuing the order while the applicant was on sick leave, the Minister had breached section 256(1) of the 1997 Act (see paragraph 15 below).




  The Minister of Internal Affairs filed a cassation appeal against the decision of the three-member panel. In his written pleadings in reply the applicant’s lawyer again reiterated his request to have the witnesses examined.




  In a final judgment of 25 October 2004 a five-member panel of the Supreme Administrative Court quashed the earlier judgment of the three-member panel and upheld the order for termination of the applicant’s employment, finding that, although the order had been signed on 13 June 2003 (when he was on sick leave), it had been served on him on 22 July 2003 (when he was back at work). Therefore, there had been no breach of section 256(1) of the 1997 Act.




  Neither the three-member nor five-member panel of Supreme Administrative Court judgments considered the applicant’s allegation that he had filed his request for early retirement under duress or gave reasons for the decision not to call the applicant’s witnesses.

II.  RELEVANT DOMESTIC LAW




  Section 253(1)(2) of the 1997 Act, in force until the end of April 2006, provided that the employment of officers in the Ministry of Internal Affairs could be terminated by order of the Minister in cases where they met all the requirements for receiving an old-age pension and upon their request for early retirement. The order for termination was amenable to judicial review by the Supreme Administrative Court (section 258 of the 1997 Act in conjunction with section 36(1) of the Administrative Procedure Act 1979, in force until 1 March 2007). Section 256(1) of the 1997 Act provided that the employment of officers could not be terminated whilst on leave except in accordance with the provisions of section 253 of the Act.




  Section 11(1) of the Administrative Procedure Act 1979 provided that an administrative decision could only be issued after the administrative authority considered any explanations, representations or objections made by the interested party.




  At the material time, proceedings before the Supreme Administrative Court were regulated by the Supreme Administrative Court Act 1997. Section 38 of the Act stated that in cassation proceedings (which included appeals from three-member panels to five-member panels of the Supreme Administrative Court) only documentary evidence was admissible. Section 40(1) provided that, in such proceedings, the Supreme Administrative Court could uphold, quash (wholly or partly) or vary the judgment appealed against. Section 40(2) provided that, if the Supreme Administrative Court quashed the judgment for serious breaches of the rules of procedure, it had to remit the case for reconsideration by a differently constituted panel. In other cases, the case was to be decided on the merits.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION




  The applicant, relying on Article 6 § 1 of the Convention, complained that he had not had a fair trial as a result of the Supreme Administrative Court’s refusal to examine his witnesses without giving reasons. Article 6 § 1 of the Convention, where relevant, provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.  Admissibility




  The Government submitted that the application was inadmissible because the applicant had not exhausted domestic remedies. He had failed to make written representations setting out his allegations as to duress (with his supporting evidence) to the Minister. The Minister would have been bound to consider those representations, in accordance with the section 11 of the Administrative Procedure Act 1979 (see paragraph 16 above).




  The Court finds that there is no merit in the Government’s preliminary objection. Whatever administrative remedies he may have had in respect of the termination of his employment, the applicant’s complaint to this Court is not about that termination, but about the fairness of proceedings before the Supreme Administrative Court. The remedy suggested by the Government had no bearing on that complaint. Accordingly, the Court rejects the Government’s preliminary objection. Since the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds, it must be declared admissible.

B.  Merits

1.  The parties’ submissions




  The Government maintained that the applicant’s allegations concerning the termination of his employment were unfounded. The Supreme Administrative Court enjoyed full jurisdiction to review all elements of the procedural and substantive legality of the termination of his employment. The case had been carefully considered and rejected by the Supreme Administrative Court, which had acted fairly throughout. The three-member panel had given a clear reason for its decision - the breach of section 256(1) - and, in reaching that decision, had fully considered the applicant’s submissions. When that decision was appealed, according to the relevant procedures in place at that time, the five-member panel had been constrained to considering the written evidence in the case. This was why the applicant’s requests regarding the hearing of his witnesses had not been considered by the five-member panel: the witnesses were simply not relevant to the issue on appeal before it. Courts had a wide discretion as regards the calling of witnesses and a violation could not be found simply because a court found it unnecessary to call a particular witness, or denied an applicant’s request to have a witness called (see, for instance, H. v. France, 24 October 1989, Series A no. 162-A; and, mutatis mutandis, S.N. v. Sweden, no. 34209/96, ECHR 2002-V).




  The applicant reiterated that his witnesses were relevant to the key issue in the case, namely whether he had made his request for early retirement under duress. His request to have those witnesses called had been made in accordance with the applicable procedural rules and had been supported by the prosecutor appearing in the case, yet the Supreme Administrative Court gave no reasons for its refusal to call the witnesses. The Supreme Administrative Court had also been required to rule on the merits of every claim which an applicant advanced. It had not done so. Instead, the three-member panel had only considered the issue of sick leave and, on appeal, the five-member panel had done the same. When it quashed the three-member panel’s decision regarding the sick leave issue, the proper course would have been for the five-member panel to have remitted the case for reconsideration by a differently constituted panel of three judges, and for that new panel to have considered all of the other issues the applicant had raised, particularly the issue of duress. Instead, the course adopted by the Supreme Administrative Court meant he had been denied the possibility of having his claims regarding duress considered, and his witnesses in support of that claim heard.

2.  The Court’s assessment




  The issue before the Court in this case is not whether the order for the termination of the applicant’s employment complied with Bulgarian law or whether it was justified, but whether the judicial review proceedings in respect of that termination breached Article 6 § 1 of the Convention. In ruling on that issue, the Court must consider two questions: whether the civil limb of Article 6 § 1 applies to the proceedings before the Supreme Administrative Court and, if so, whether those proceedings were fair.

(a)  Applicability of Article 6 § 1 of the Convention




  For Article 6 § 1 of the Convention to be applicable under its civil limb, there must be a genuine and serious dispute over a right that can be said, at least on arguable grounds, to be recognised in domestic law. The dispute may relate not only to the actual existence of the right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for that right (see, among many other authorities, Efendiyeva v. Azerbaijan, no. 31556/03, § 39, 25 October 2007).




  In the present case, it is uncontested that there was a dispute over a right recognised under Bulgarian law (in the absence of a valid order for termination of employment, the right to continue to be employed as an officer of the Ministry of Internal Affairs), 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 (contrast Čavajda v. Slovakia, no. 65416/01, §§ 61-64, 14 October 2008).




  It remains to be established whether that right can be characterised as “civil” within the meaning of Article 6 § 1 of the Convention. In this connection, it should be noted that the applicant was a serving police officer, under the authority of the Ministry of Internal Affairs, and that the dispute that he sought to have resolved in the proceedings he brought before the Supreme Administrative Court concerned the lawfulness of the termination of his employment in that post.




  In its judgment in the case of Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II, the Court’s Grand Chamber laid down new criteria regarding the applicability of Article 6 § 1 of the Convention to disputes concerning the employment of civil servants. It ruled that this provision applies under its civil limb to all disputes involving civil servants unless (a) the domestic law of the State concerned expressly excludes access to a court for the post or category of staff in question, and (b) that exclusion is justified on objective grounds. If domestic law does not bar access to a court, the Court does not need to go into the second of these criteria (see Rizhamadze v. Georgia, no. 2745/03, §§ 27-28, 31 July 2007; Efendiyeva, cited above, § 41; and Romuald Kozłowski v. Poland, no. 46601/06, § 24, 20 January 2009).




  In the present case, Bulgarian law expressly allowed judicial review of the decision to terminate the employment of a serving officer of the Ministry of Internal Affairs and the applicant’s legal challenge to the termination of his employment was in fact examined by the Supreme Administrative Court. It follows that Article 6 § 1 of the Convention, under its civil limb, was applicable to the proceedings before that court (see Redka v. Ukraine, no. 17788/02, § 25, 21 June 2007; Chukhas v. Ukraine, no. 4078/03, § 20, 12 July 2007; Blandeau v. France, no. 9090/06, § 21, 10 July 2008; Iordan Iordanov and Others v. Bulgaria, no. 23530/02, § 44, 2 July 2009; and Vanjak v. Croatia, no. 29889/04, §§ 32-33, 14 January 2010). The fact that the proceedings concerned the termination of the applicant’s employment rather than a question relating to his salary, allowances or similar entitlements does not alter that conclusion (see Cvetković v. Serbia, no. 17271/04, § 38, 10 June 2008; Romuald Kozłowski, cited above, § 24; and Bayer v. Germany, no. 8453/04, §§ 38-39, 16 July 2009).

(b)  Compliance with Article 6 § 1 of the Convention




  It remains to be determined whether the proceedings before the Supreme Administrative Court were fair. The following four general principles set out in the Court’s case-law are relevant to its determination of that issue.




.  First, Article 6 of the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, Series A no. 140, p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC] no. 30544/96, § 28, ECHR 1999-I). The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence and procedural decisions were taken, were fair (Olujić v. Croatia, no. 22330/05, § 77, 5 February 2009; Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004).




.  Second, Article 6 of the Convention does not explicitly guarantee the right to have witnesses called or other evidence admitted by a court in civil proceedings. Nevertheless, any restriction imposed on the right of a party to civil proceedings to call witnesses and to adduce other evidence in support of his case must be consistent with the requirements of a fair trial within the meaning of paragraph 1 of that Article, including the principle of equality of arms (Khrabrova v. Russia, no. 18498/04, § 38, 2 October 2012; Gryaznov v. Russia, no. 19673/03, §§ 56 and 57, 12 June 2012; and also Wierzbicki v. Poland, no. 24541/94, § 39, 18 June 2002).




  Third, the principle of adversarial proceedings and equality of arms, which is one of the elements of the broader concept of a fair hearing, requires that each party be given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party, and to present his case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (Olujić, cited above, § 78; Krčmář and Others v. the Czech Republic, no. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274).




.  Finally, the notion of a fair procedure requires that a national court address the essential issues which were submitted to its jurisdiction (Vojtěchová v. Slovakia, no. 59102/08, § 35, 25 September 2012, with further references therein). The national court is under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (Van de Hurk v. the Netherlands, 19 April 1994, § 59, Series A no. 288). Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument (ibid, § 61; Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303-B; Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A). They must, however, indicate with sufficient clarity the grounds on which they based their decision (Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252).

34.  In the present case, the very reason for the applicant’s application to the Supreme Adminstrative Court was his contention that his request for early retirement had been made under duress and that, as such, the order for termination of his employment had been invalid. Although the Government have disputed the applicant’s factual allegations in this respect they have accepted that, should duress have been proven, as a matter of Bulgarian law, this would have invaldiated the termination order. The issue of duress was thus the central issue in the proceedings before the Supreme Administative Court. This was, moreover, a question of fact and, as such, could only have been determined by the Supreme Administrative Court considering the parties’ evidence. Given this background, it would normally have been incumbent upon the Supreme Administrative Court, sitting first as a three-member panel, either to hear the applicant’s witness or to give clear reasons for its decision not to do so.

35.  Having first refused the applicant’s request to call witnesses in regard of the alleged duress (see paragraph 10 above), the three-member panel also gave no ruling or reasoning on this account in its decision. It preferred instead to determine the application for judicial review in the applicant’s favour only on the narrower question of sick leave. Thereafter, on appeal the five-member panel, which was limited to examining only the written evidence in the case, summarily quashed the judgment of the three-member panel without dealing with his complaint regarding duress. The effect of the five-member panel’s decision was to quash a decision which had been favourable to the applicant without affording him any opportunity to have his principal ground of challenge against his dismissal considered. This meant that the essence of the applicant’s complaint was in fact never judically examined by the Supreme Administrative Court and, thus, there was no proper judicial determination of his application for judicial review (see, for instance, Yanakiev v. Bulgaria, no. 40476/98, §§ 68-72, 10 August 2006). The cumulative consequence of the manner of proceeding by the Supreme Administrative Court, at first instance and on appeal, was therefore to deprive the applicant of the right to a fair hearing to which he was entitled under Article 6 § 1 of the Convention. For these reasons, there has been a violation that provision.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION




  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage




  The applicant made no claim in respect of pecuniary damage but claimed 6,000 euros (EUR) in respect of non-pecuniary damage. He had suffered this damage because of the stress and anxiety incurred as a result of the unfairness of the proceedings before the Supreme Administrative Court. He relied in particular on the fact that, before the termination of his employment, he had been a police officer in good standing with nineteen years’ service and that, since then, his mental and physical health had suffered.




  The Government considered this claim to be excessive and that the finding of a violation would constitute sufficient just satisfaction. In the alternative, they asked the Court to follow its awards in similar cases.




  The Court finds that the applicant has suffered non-pecuniary damage on account of the breach of Article 6 § 1 of the Convention which it has found (Khrabrova, cited above, § 59) and that damage cannot be made good by the mere finding of a violation (Olujić, cited above, § 97). Consequently, ruling on an equitable basis, the Court awards the applicant EUR 1,500, plus any tax that may be chargeable on this amount.




  It must in addition be pointed out that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the breach and to redress as far as possible its effects (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012). The most appropriate form of redress in cases where an applicant has not had access to a tribunal in breach of Article 6 § 1 of the Convention is, as a rule, to re-open the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial (see, among other authorities, Yanakiev, cited above, § 90).

 

B.  Costs and expenses




  The applicant sought reimbursement of EUR 1,410 incurred in lawyers’ fees. This reflected twenty-three and a half hours’ work on the proceedings before the Court (at the rate of EUR 60 per hour). He requested that EUR 102 of any award made under this head be paid directly to him (since he had already paid that sum to his lawyers) and the remainder to his legal representative. He claimed a further 360 Bulgarian levs (BGN) (EUR 153) in costs and expenses (covering postal and translation services) and asked that this sum be paid directly to him. In support of these claims he submitted a fee agreement between him and his legal representative, a time sheet, contracts for translation services and various postal receipts.




.  The Government submitted that the number of hours billed and the hourly rate charged by the applicant’s lawyers were inflated. They also submitted that the other expenses should be allowed only in so far as supported by documentation.




.  According to the Court’s case-law, costs and expenses claimed under Article 41 must have been actually and necessarily incurred and be reasonable as to quantum. In the present case, the Court notes that the hourly rate charged by the applicants’ lawyers is comparable to those charged in recent cases against Bulgaria having a similar complexity (see, as recent authority, Finger v. Bulgaria, no. 37346/05, § 142, 10 May 2011 with further references therein). It can thus be regarded as reasonable. However, the Court agrees with the Government that the number of hours for which the applicant’s legal representative charged appears to be excessively high. Considering this, and making its assessment on an equitable basis, the Court awards the applicant EUR 1,000 in costs. EUR 102 of that amount is to be paid to the applicant himself and the remainder to his legal representative.




.  As for the claim for other expenses, the applicant has requested reimbursement of the cost of translating of documents from English to Bulgarian, and the cost of translating of documents from Bulgarian to English. Under the Court’s case-law, only the latter may be reimbursed as having being necessarily incurred (see United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 2), no. 34960/04, § 59, 18 October 2011). Accordingly, the Court awards him BGN 135 for translation services and a further BGN 30 to cover the postal expenses he has actually incurred, plus any tax that may be chargeable to him. Converted into euros, the total sum awarded in respect of expense comes to EUR 84. This is to be paid to the applicant himself.

C.  Default interest




  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,084 (one thousand and eighty-four euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 186 (one hundred and eighty-six euros) of which is to be paid to the applicant himself, and the remainder of which is to be paid to his legal representative;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos                                                           Ineta Ziemele
           Registrar                                                                          President