I incorrectly predicted that there's no violation of human rights in DELIN v. BULGARIA.

Judgment

FIFTH SECTION

CASE OF DELIN v. BULGARIA

(Application no. 62377/16)

JUDGMENT

STRASBOURG

6 December 2018

This judgment is final but it may be subject to editorial revision. In the case of Delin v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,Yonko Grozev,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 13 November 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 62377/16) 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 Margarit Ivanov Delin (“the applicant”), on 24 October 2016. 2. The applicant was represented by Ms S. Margaritova-Vuchkova a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice. 3. On 26 January 2017, notice of the complaints raised under Articles 6, 8 and 13 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The applicant complained in particular that he had been unable to effectively challenge the decision to revoke his security clearance for access to State secrets on the basis of which his employment contract with the National Security Service had been terminated. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1964 and lives in Blagoevgrad. 5. He had been employed by the National Security Service, at the Regional Office of Blagoevgrad, as an agent since 1998. On account of the nature of his duties, he had held a security clearance permitting him access to classified information constituting State secrets. According to the applicant’s job description, being in a possession of such a security clearance had been a prerequisite to him holding his post. 6. On 20 November 2013, the Director of the National Security Service issued a decision to revoke the applicant’s security clearance allowing access to classified information. The decision did not contain any reasoning in respect of that revocation, apart from a reference to section 59, in relation with section 40 § 1 f) and h); section 41 c) and d), and section 42 a) and b) of the Classified Information Protection Act (see paragraphs 12 and 13 below). 7. The applicant lodged an appeal against the revocation with the State Commission for Information Security. The latter, by a decision of 9 January 2014, upheld the revocation. That decision was final and not amenable to judicial review. 8. On 6 March 2014, the Director of the National Security Service ordered that the applicant be dismissed. The reason given for the termination of his employment was the revocation of his security clearance, possession of which was an indispensable precondition for him to be able to perform his duties. 9. The applicant challenged his dismissal at two levels of jurisdiction. He contested the lawfulness of the dismissal procedure, arguing that he was not able to challenge, in the course of the procedure before the State Commission for Information Security, the facts on which the revocation of the security clearance permit was based. The Director of the National Security Service abused his powers in dismissing the applicant, who was not allowed an opportunity to defend himself. 10. By its judgment of 19 March 2015, the Blagoevgrad Administrative Court rejected the applicant’s claims, reasoning that the decision of the Director of the National Security Service to revoke the applicant’s security clearance was a final and valid administrative act, and it rendered the applicant’s dismissal inevitable because he was no longer able to perform his duties. The court added that the applicant had exhausted the remedy provided by law by challenging the revocation decision, and that the latter had become final; in addition, the court was not competent to examine, within the framework of the dismissal proceedings, any questions related to its lawfulness. 11. On 11 July 2016, the Supreme Court of Cassation upheld that judgment, confirming that the decision to revoke the applicant’s security clearance was not amenable to judicial review. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Classified Information Protection Act (Закон за защита на класифицираната информация) of 2002
12. Section 40 § 1 of this Act provides that under no circumstances other than those stipulated under section 39 (concerning access to classified information in connection with the performance of a limited scope of official duties at the highest level of State authority) shall clearance for access to classified information be issued to any person, unless he/she meets the following requirements: he/she must a) be a Bulgarian citizen; b) be of legal age; c) have completed secondary education; d) have not been convicted of any premeditated felony, notwithstanding any subsequent rehabilitation; e) not be the subject of any pre-trial or trial proceedings for premeditated felony; f) be reliable for the purposes of security; g) not be suffering from any mental disorder (and be duly certified as such); and h) be considered reliable for the purposes of protecting a secret. 13. Section 41 adds that reliability for the purposes of security is established where there is no data about a) conduct of activities against the interests of the State or the interests protected by the State by virtue of international agreements; b) participation or accomplice in spying, terrorist, sabotage or subversive operations; c) conduct of other activities against the national security, territorial integrity and the sovereignty of the State or aimed at forceful changes of the established constitutional order; d) conduct of activities against the public order. According to section 42 § 1 of the Act the reliability for the purposes of protecting a secret is established where there is data about a) hiding information or giving false information by the employee under security check for the purposes of the latter check; b) facts and circumstances that could lead to possible blackmailing of that employee; c) incompatibility of the lifestyle of the employee under security check and his/her income; d) psychiatric illness or other mental disorders that could have a negative impact on his/her capacity to work with classified information. 14. Section 59 § 1 a) stipulated, in its version applicable at the relevant period, that clearance for access to classified information had to be revoked where it was established, in the course of a security check, that the person in question did not meet one of the requirements under Section 40 § 1. Under sections 11 and 49, security checks of employees of the national security services (служби за сигурност) are conducted by those same national security services, which are also competent to grant or refuse security clearance. 15. Under section 59 §§ 3 and 5, in their version as applicable at the relevant period, a revocation of clearance did not need to be accompanied by any explanation and had to only set out the legal reasons for such a revocation. The revocation of the right to access to classified information could be challenged before the State Commission for Information Security. The State Commission for Information Security is an executive administrative body composed by five members elected for a five year period by the Council of Ministers, under a proposal of the Prime Minister (sections 4 to 6 of the Act). Under section 68 of the Act, as applicable at the relevant time, the decision of that Commission was final and not appealable before courts of law. 16. On 13 September 2016, section 68 of the Act was amended, introducing judicial review of the decisions of the State Commission concerning the refusal to grant security clearance to classified information or the revocation of such clearance. B. The Labour Code of 1986
17. The applicable provisions of that code are described in the judgment of Miryana Petrova v. Bulgaria (no. 57148/08, §§ 20-22, 21 July 2016). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
18. The applicant complained that he had been unable to challenge the decision to revoke his right to hold a security clearance for access to State secrets on the basis of which his employment contract with the National Security Service had been terminated. He further complained that the validity of this revocation had not been subject to scrutiny in the court proceedings on his dismissal. Relying on Articles 6 § 1 and 13 of the Convention, he alleged that, as a result, he had been denied access to a court. 19. The Court observes that the requirements of Article 13 of the Convention are less strict than, and are in such situations absorbed by, those of Article 6 § 1 (see, among other authorities, Vasilescu v. Romania, 22 May 1998, § 43, Reports of Judgments and Decisions 1998-III, and Miryana Petrova v. Bulgaria, no. 57148/08, § 24, 21 July 2016). It therefore considers that the above complaints should be examined solely by reference to the latter provision, which reads, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
20. The Government contested the applicants’ arguments. A. Admissibility
21. The Government did not contest that Article 6 applies in the applicant’s situation. The Court considers, in the light of its case-law, that this provision is applicable in the present case (see Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012, Ternovskis v. Latvia (no. 33637/02, § 44, 29 April 2014, Fazliyski v. Bulgaria, no. 40908/05, § 52, 16 April 2013, and Miryana Petrova, cited above, §§ 31, 32 and 35). 22. The Court also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
23. The applicant submitted that the decision of the Director of the National Security Service to revoke his right to hold a security clearance permit had resulted in his automatic dismissal. Given that this decision was not amenable to any judicial review in itself, he was placed in a situation that was in breach of Article 6 offering him a right to a fair trial. 24. The Government did not contest that the applicant was denied judicial review. They submitted that a violation of Article 6 was found in a similar situation in the case of Myriana Petrova, cited above, and that following the legislative amendments of 2016, the applicable legislation was aligned with the requirements of this provision. Therefore, the present case should be seen as an isolated one of denial of judicial review in situations where security clearance access is refused or revoked. 25. The Court also recalls that it had to examine cases where a refusal to grant security clearance directly resulted in the loss of employment and a public tender contract. In those cases the Court has held that the conclusive nature of the certificate refusing security clearance, it was taken as a fact by domestic courts and there could be no judicial scrutiny of the facts grounding its issuance, constituted a disproportionate restriction on the applicant’s right of access to a court (Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 76, Reports of Judgments and Decisions 1998‐IV, Devenney v. the United Kingdom, no. 24265/94, § 26, 19 March 2002, Myriana Petrova, cited above, §§ 40‐41, and Aleksandar Sabev v. Bulgaria, no. 43503/08, §§ 55‐58, 19 July 2018). 26. The Court does not see any reason to depart from that conclusion in the present application where the facts are very similar to the last mentioned case and the applicable Bulgarian law was unchanged at the relevant period. 27. In particular, the domestic court proceedings on the dismissal of the applicant allowed for no possibility of review of any of the facts on which the revocation of the security clearance was grounded. As in Miryana Petrova, cited above (§§ 38-45), the courts’ decisions were in line with the applicable domestic law providing that the refusals by the National Security Service to allow security clearance permissions or their revocations were not subject to any form of judicial review and no justification was given by the Government to this restriction. 28. The legislative amendments allowing judicial review of the decisions refusing or revoking security clearance access, to which the Government refer, were adopted only on 13 September 2016, while the last impugned decision is dated 11 July 2016 (see paragraphs 11, 16 and 24 above). Those changes in law, applicable ex nunc, could not benefit to the applicant’s situation. 29. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s dismissal proceedings were not conducted by a tribunal according to the meaning of Article 6 due to the unjustified lack of scope of judicial review of the competent domestic judicial authorities. 30. There has therefore been a breach of Article 6 § 1. II. ALLEGED VIOLATION OF ARTICLE 8, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION
31. The applicant complained of a violation of Article 8, taken alone and together with Article 13 of the Convention, alleging that his dismissal amounted to an unjustified interference with his right to private life and that he had not had at his disposal effective domestic remedies in this respect. Those provisions read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
32. The Government contested that argument. 33. The applicant maintained his complaints. 34. The Court notes that these complaints are linked to the one examined above and must therefore likewise be declared admissible. 35. Having regard to its conclusion under Article 6 of the Convention, the Court considers that no separate issue arises under Article 8 of the Convention taken alone and/or in conjunction with Article 13. It is therefore unnecessary to examine these complaints. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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
37. The applicant claimed 3,000 euros (EUR) in respect of non‐pecuniary damage sustained as a result of the fact that he had not been able to have the decision to revoke his security clearance reviewed by a court and of the consequences of his dismissal, which he considers unlawful. 38. The Government contested the applicant’s claim. 39. The Court finds that the applicant has suffered non-pecuniary damage on account of the breach of Article 6 § 1 of the Convention found in the present case (see Fazliyski v. Bulgaria, no. 40908/05, § 75, 16 April 2013, and Miryana Petrova, § 49, cited above). Consequently, ruling on an equitable basis, the Court awards the applicant EUR 2,400, plus any tax that may be chargeable on this amount. 40. 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 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 v. Bulgaria, no. 40476/98, § 90, 10 August 2006, Fazliyski, § 76, and Miryana Petrova, § 50, cited above). B. Costs and expenses
41. The applicant sought the reimbursement of EUR 2,730 in lawyers’ fees for the proceedings before the Court (thirty-nine hours’ work at a rate of EUR 70 per hour), as well as 36 Bulgarian levs (BGN or EUR 18 approximately) for postage and clerical expenses and BGN 526 (EUR 263 approximately) for translation fees. He submitted a fee agreement between him and his lawyer, a time sheet, copies of two slips for letters sent by post and finally, two translation agreements between a translator and the applicant’s lawyer with respect to the present application. The applicant requested that, should any award be made by the Court under this head, BGN 2,862 (EUR 1,431 approximately) be paid to him and the remainder be transferred directly into the bank account of his legal representative, Ms S. Margaritova-Vuchkova. 42. The Government contested the above claim. 43. According to the Court’s case-law an applicant is entitled to the reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000, plus any tax that may be chargeable to the applicant, covering costs under all heads. As requested by the applicant, EUR 1,431 out of this sum is to be paid to him and the remainder is to be transferred directly into the bank account of the applicant’s legal representative. C. Default interest
44. 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 that there is no need to examine the complaints under Article 8, taken alone and in conjunction with Article 13 of the Convention;

4. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 1,431 (one thousand four hundred and thirty-one euros) of the said sum to be paid to the applicant and the remainder directly to the applicant’s legal representative, Ms S. Margaritova-Vuchkova;
(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoGabriele Kucsko-StadlmayerDeputy RegistrarPresident