CASE OF IVAN STOYANOV VASILEV v. BULGARIA
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1959 and lives in Bourgas. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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 The Minister of Internal Affairs’ counsel objected, arguing that the applicant could simply have withdrawn his request for early retirement.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. 11. 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). 12. 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. 13. In a final judgment of 25 October 2004 a five-member panel of the Supreme Administrative Court quashed the earlier judgment of the threemember 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. 14. 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. 15. 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. 16. 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. 17. 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.