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
