FIFTH SECTION
CASE OF ALEKSANDAR SABEV v. BULGARIA
(Application no. 43503/08)
 
 
 
 
 
JUDGMENT
 
STRASBOURG
19 July 2018
 
 
FINAL
 
19/10/2018
 
 
 
 
This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aleksandar Sabev v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Erik Møse,
 André Potocki,
 Yonko Grozev,
 Síofra O’Leary,
 Gabriele Kucsko-Stadlmayer,
 Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 26 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 43503/08) 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 Aleksandar Asenov Sabev (“the applicant”), on 3 September 2008. 2. The applicant was represented by Ms G.P. Petkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, Ministry of Justice. 3. The applicant alleged, in particular, that his right to a tribunal guaranteed by Article 6 § 1 of the Convention had been violated on account of the fact that the courts which had examined his appeal against his dismissal had not had been sufficiently competent to hear and determine the case before them, which, in his view, had prevented them from assessing all the decisive issues for the outcome of the case. 4. On 4 January 2017 the Government were given notice of the application. THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1967 and lives in Sofia. 6. At the material time the applicant was an army officer holding the rank of major who had been working for the Military Intelligence Service for several years. 7. On 27 May 2005 the applicant’s security clearance to access classified information at the national level was withdrawn, of which fact he was duly notified. The order merely mentioned the legal provision on which the measure had been based, that is, section 59 (1) (2) of the Law on the protection of classified information. 8. On the same date the applicant lodged an administrative appeal against that decision with the State Commission on Information Security (“the State Commission”), asserting that he had not infringed the aforementioned legal provision. 9. By letter of 22 July 2005 the State Commission informed the applicant that his appeal had been examined and dismissed on 15 July 2005. The letter gave no details concerning the Commission’s deliberations or its reasoning. 10. On 8 August 2005 the applicant was relieved of his duties in the Military Intelligence Service, and on 30 September 2005 he was transferred to the Intelligence Unit at the Army Headquarters. 11. By letter of 29 August 2006 the State Commission informed the Head of the Intelligence Unit at the Army Headquarters that on 22 August 2006 it had cancelled the applicant’s clearance to access classified information from NATO, and that he also no longer had clearance to access classified information at the national level. It stated that the applicant’s transfer to the Intelligence Unit had consequently been contrary to section 59 (6) of the Law on the protection of classified information. The letter gave no details concerning the State Commission’s deliberations or its reasoning. 12. On 30 August 2006 the applicant took cognisance of that letter. 13. On 11 September 2006 the Head of the Intelligence Unit contacted the Commission on the Status of Officers in the Army Headquarters, which met that same day and found that the applicant failed to satisfy the legal conditions for his post on account of the cancellation of the two aforementioned security clearances to access classified information. It proposed terminating his employment contract after the expiry of six months’ notice. 14. On 12 September 2006 the applicant took cognisance of that letter. 15. Between September and December 2006 the applicant applied to several State bodies in an attempt to discover the precise reason for the cancellation of his clearances. The State Commission replied that it could not supply that information and that it would not reconsider its decision. The Defence Minister informed him that his complaint was ill-founded, and the National Assembly told him that the issue lay outside its jurisdiction. 16. By order of 23 March 2007 the Defence Minister terminated the applicant’s contract for failure to satisfy the legal conditions for his post. The applicant was given notice of that decision on 12 April 2007. 17. On 23 April 2007 the applicant appealed against the order for his dismissal before the Supreme Administrative Court (“CAS”), complaining of the lack of reasoning of the order, as well as several procedural errors. He complained, in particular, that the order had failed to mention any fact justifying his dismissal. 18. By judgment of 19 November 2007 a three-judge trial bench of the CAS dismissed the applicant’s appeal. That judgment stated that the impugned order had been sufficiently reasoned, in particular in relation to the other documents in the file; it had been established that the applicant’s clearances to access classified information had been withdrawn, as confirmed by the State Commission; pursuant to the legislative provisions in force, no reasons had to be given for the withdrawal of such clearance, and the relevant order was not subject to judicial review; the withdrawal of the clearances meant that the applicant could no longer hold a post entailing access to classified information for three years; in ordering his dismissal, the Defence Minister had been bound by the facts found by the State Commission. Moreover, the CAS trial bench found no evidence of any procedural error. 19. The applicant lodged an appeal on points of law with a five-judge bench of the CAS. He repeated his plea that his dismissal had been unlawful and unreasoned. He alleged that he had not committed any offence and had never been informed of the precise reason for the withdrawal of his clearances to access classified information. He invited the CAS to order the military authorities to supply him with the documents that had been used in evidence in the procedure for the withdrawal of the clearances in question. 20. By judgment of 6 March 2008 a five-judge bench of the CAS upheld the lower court’s decision. The CAS bench held, in particular, that the applicant’s dismissal had been justified by the State Commission’s withdrawal of the applicant’s clearances. It pointed out that the withdrawal itself did not have to be reasoned and was not subject to judicial review. It considered that that the Defence Minister therefore had been required to comply with the decision of the specialist administrative authorities and to order tale applicant’s dismissal, which he had done. It added that the applicant had taken cognisance of the circumstances justifying his dismissal on 30 August 2006, when he had been informed of the State Commission’s decision to withdraw his security clearances to access classified information. RELEVANT DOMESTIC LAW
A. Access to classified information
21. The Law on the protection of classified information governs the protection and storage of an access to classified information. The State Commission is the authority responsible for applying that Law. The Commission is made up of five members elected for a five-year term by the Council of Ministers, as proposed by the Prime Minister. 22. Access is only possible to classified information if the person concerned has been given security clearance (sections 36 and 38 of the Law). 23. Pursuant to section 59 (1) (2) of the Law, clearance to access classified information must be withdrawn if the person concerned has infringed the Law or any instruments enacted for its application, to the actual or potential detriment of the interests of the State and the authorities having access to the classified information. Pursuant to section 59 (3), no reasons must be given for decisions to withdraw security clearance. Persons from whom clearance has been withdrawn are debarred from holding a post enabling them to access classified information for three years following the withdrawal (section 59 (6)). 24. Clearance withdrawal may be contested before the State Commission (section 62 of the Law). Under section 68 of the Law as worded prior to 2016, the Commission’s decision was final. 25. On 13 September 2016 section 68 of the Law was amended. It now allows the persons concerned to contest the State Commission’s decision before the CAS. B. Dismissal of regular members of the armed forces
26. Pursuant to section 128b (1) (1) of the 1995 Law on defence and the armed forces, which has now been revoked, the Defence Minister could dismiss a regular member of the armed forces if he or she failed to satisfy the conditions for the post in question. Dismissal orders issued by the Minister could be contested before the CAS (section 132 of the same Law). 27. Under Regulation 199 (1) (2) of the Regulations on regular service in the armed forces as in force at the material time, a serviceman failed to satisfy the conditions for his post if he lacked access to classified information. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
28. The applicant complained of a violation of his right of access to a tribunal with full jurisdiction to determine the civil dispute to which he was a party. He relied, in that regard, on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
Admissibility
1. The parties’ submissions
29. The Government contested the admissibility of the applicant’s complaint on two counts. First of all, with reference to the decision in the case of Danawar and Others v. Bulgaria (dec.), no. 25843/07, 20 January 2015, they raised an objection as to inadmissibility based on non-compliance with the six-month time-limit. They pointed out that the applicant’s dismissal had been based on the withdrawal by the State Commission of his clearances to access classified information and that that decision had been final. They explained that, consequently, the six-month time-limit had started on the date of notification of the State Commission’s decision, that is to say 30 August 2006, and that the applicant had lodged his application on 3 September 2008, two years later. 30. In the alternative, the Government raised an objection regarding the applicant’s lack of victim status. They argued that pursuant to the domestic legislation in force at the material time, persons whose security clearance to access classified information had been withdrawn could not hold a post allowing them to access such information for three years following the withdrawal of their clearance. The Government pointed out that in the applicant’s case, that three-year period had ended on 30 August 2009. They argued that the applicant therefore had lost his status as victim of the violation of which he had complained on that date, with the lifting of the restriction on holding a post similar to the one which he had held at the time of his dismissal. 31. The applicant submitted that the six-month time-limit for applying to the Court had begun on the date of the last decision given by the domestic courts concerning his dismissal, that is, on 6 March 2008. As the Court has affirmed in its recent judgment in the case of Miryana Petrova v. Bulgaria, no. 57148/08, § 32, 21 July 2016, the applicant argued that the issue at stake in his case had not been his right to access classified information but rather his right to hold a civil service post, which had been infringed by the withdrawal of his security clearances. He considered that his dismissal had been the subject of proceedings conducted by courts which had not held full jurisdiction to determine the lawfulness of that dismissal, and that the six-month time-limit had actually started running at the end of those proceedings. 32. The applicant argued that his application was not manifestly ill-founded and that it satisfied all the other admissibility conditions set out in Article 35 § 2 of the Convention. 2. The Court’s assessment
33. The Court considers that it should first of all examine the Government’s objection concerning the applicant’s loss of victim status, to the effect that after the expiry of the maximum period of prohibition of holding a post necessitating access to classified information, the applicant had no longer been affected by the alleged violation of the Convention (see paragraph 30 above). 34. The Court, however, reiterates that the subject matter of the present case is the limited scope of the examination conducted by the domestic courts in the framework of a dismissal procedure, and not the lawfulness and necessity of the dismissal itself, which falls within the jurisdiction of the domestic courts. Consequently, the fact that the applicant is no longer prevented from applying for a post involving access to classified information has not deprived him of his status as a victim of a violation of Article 6 § 1 of the Convention. The Government’s objection must therefore be rejected. 35. The Government also raised an objection as to inadmissibility regarding non-compliance with the six-month time-limit. They considered that the starting point for that time-limit had been the date of notification of the State Commission’s decision, with which no further appeal lay, confirming the withdrawal of the applicant’s clearance to access classified information, to wit 30 August 2006 (see paragraph 29 above). The applicant contested the Government’s position by arguing that that time-limit only started running on the date of the courts’ final decision in the framework of the proceedings aimed at challenging his dismissal (see paragraph 31 above). 36. The Court considers that in the particular circumstances of the present case, the parties’ arguments on this matter are so closely linked with the substance of the applicant’s complaint under Article 6 § 1 of the Convention, that is to say the allegation that the courts lacked jurisdiction to determine all the decisive points for the outcome of the proceedings against the applicant’s dismissal, that this objection as to inadmissibility should be joined to the merits of the case. 37. The Court notes that the applicant’s 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.

Outcome for Article 6: violation