CASE OF FAZLIYSKI v. BULGARIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public judgment);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1962 and lives in Sofia. 6. In 1995 the applicant was appointed as an inspector at the National Security Service of the Ministry of Internal Affairs. In 2002 he was transferred to the Ministry’s National Security Directorate (the Ministry’s internal structure had been altered in 1997). At that time he had the rank of major. His duties included counterintelligence, the recruitment and managing of secret agents, the gathering and dissemination of information from secret sources, secret surveillance, etc. 7. In November 2002 a proposal was made for the applicant’s disciplinary dismissal. The proposal was prompted by an internal investigation which found indications that the applicant had engaged, aside from his duties at the Ministry, in fish farming, and that he had sought to resolve disputes with the persons employed by him by threatening them with his position. It was felt that these activities were incompatible with the duties of an officer of the National Security Directorate and tarnished the reputation of the service. 8. The proposal was not upheld due to the lack of sufficient evidence. 9. On 6 March 2003 the Director of the National Security Directorate sent a letter to the head of the Ministry’s Psychology Institute (see paragraph 33 below). He referred in detail to the above facts and suggested that the applicant be subjected to psychological assessment on the basis of Instruction no. I37 (see paragraph 32 below). 10. On 19 March 2003 the Director of the National Security Directorate ordered the applicant to present himself for assessment at the Ministry’s Psychology Institute. 11. The applicant underwent a psychological assessment on 16 April 2003. It consisted of a psychological test, an interview and a polygraph test. 12. The results of the assessment were available on 9 May 2003. The psychologist who had carried it out described the results of his observations and of the polygraph test, and expressed the opinion that the applicant was mentally unfit to work at the Ministry of Internal Affairs. The document was classified and the applicant was not allowed to see it. 13. On 5 June 2003 the Director of the National Security Directorate proposed to the Minister of Internal Affairs to dismiss the applicant from his post under section 253(1)(5) of the Ministry of Internal Affairs Act 1997 and regulation 251(1)(6) of the Act’s implementing regulations (see paragraphs 30 and 31 below). In his proposal he described in detail the attempt to dismiss the applicant on disciplinary grounds and the results of the psychological assessment. The applicant was allowed to have sight of the proposal the same day. 14. In an order of 27 June 2003 the Minister of Internal Affairs dismissed the applicant by reference to the legal provisions mentioned in the proposal. 15. The applicant was acquainted with the order on 13 August 2003 and noted his disagreement with the grounds for issuing it. 16. On 26 August 2003 the applicant sought judicial review of the Minister’s order. He argued, inter alia, that it had not been duly reasoned and that the psychological assessment on the basis of which it had been issued had not been objective. 17. In the course of the proceedings before the Supreme Administrative Court the Ministry presented a copy of the applicant’s psychological assessment. The proceedings as a whole were then classified, apparently because the case file contained a classified document. 18. The applicant was initially represented by two lawyers. The first of them withdrew from the proceedings because he could not obtain the requisite security clearance to be able to have access to the documents in the case file. The second also withdrew because she did not have enough legal experience to be granted rights of audience before the Supreme Administrative Court. The applicant accordingly retained another counsel who had the requisite experience and security clearance. 19. In her written pleadings counsel for the Ministry submitted, inter alia, that after the applicant had been found mentally unfit for work, under section 253(1)(5) of the Ministry of Internal Affairs Act 1997 (see paragraph 30 below), the Minister had been bound to dismiss him from his post. 20. A threemember panel of the Supreme Administrative Court heard the case on 4 October 2004. Counsel for the applicant argued, inter alia, that the psychological assessment had not been correctly carried out and that its results could not be trusted. Counsel for the Ministry argued, inter alia, that the assessment could not be subjected to judicial scrutiny. 21. In a judgment of 11 October 2004 (реш. № 50 от 11 октомври 2004 г. по адм. д. № С65/2003 г., ВАС, V о.), the threemember panel rejected the applicant’s claim, finding that no breaches of the rules of procedure had occurred in the course of the dismissal procedure. It went on to say that it was not competent to review the results of the psychological assessment carried out by the Ministry’s Psychology Institute. Under the terms of regulation 251(1)(6) of the implementing regulations of the Ministry of Internal Affairs Act 1997 (see paragraph 31 below), such assessments amounted to incontrovertible proof of unfitness for work at the Ministry, and the Ministry’s Psychology Institute was the only body competent to determine that issue. The panel also found no indication that the dismissal order was not in line with the purpose of the law. 22. The applicant appealed on points of law. He challenged, inter alia, the psychological assessment procedure and the independence of the experts who had carried it out. He also contested the threemember panel’s ruling that the Ministry’s Psychology Institute was the only body competent to carry out such an examination and that the court could not scrutinise the correctness of the Institute’s opinion. In an additional memorial filed on 9 March 2005 he pointed out that in a judgment of 8 February 2005 (see paragraph 35 below) another panel of the Supreme Administrative Court had stated that the assessment of mental fitness for work at the Ministry should be amenable to judicial scrutiny. 23. In a final judgment of 17 May 2005 (реш. № 12 от 17 май 2005 г. по адм. д. № С4/2005 г., ВАС, петчл. св), a fivemember panel of the Supreme Administrative Court dismissed the appeal. It held, inter alia, that the psychological assessment procedure had been duly followed, and that the threemember panel had been correct to find that it could not scrutinise the assessment. Its judgment had been given before the judgment of 8 February 2005 which had partly struck down regulation 251(1)(6) of the implementing regulations of the Ministry of Internal Affairs Act 1997 (see paragraph 35 below) and had been based on the wording of that regulation in force before the judgment of 8 February 2005. 24. As the proceedings were classified, the applicant could not obtain copies of the Supreme Administrative Court’s judgments. On 5 December 2005 he asked the court to issue certificates containing the judgments’ operative provisions and indications as to the subject matter of the case. The president of the fivemember panel which had dealt with the case acceded to the request, and on 7 December 2005 the applicant was issued two certificates, one in relation to the threemember panel’s judgment and another in relation to the fivemember panel’s judgment. 25. In the meantime, on 7 November 2005 the applicant requested the reopening of the proceedings. 26. In a judgment of 4 April 2006 (реш. № Я63 от 4 април 2006 г. по адм. д. № С108/2005 г., ВАС, петчл. св) the Supreme Administrative Court rejected the request. 27. On 30 August 2006 a commission appointed by the president of the Supreme Administrative Court declassified the minutes of the hearings before the threemember and fivemember panels, as well as their judgments. It did so by reference to regulation 50(3)(2) of the Regulations for the implementation of the Protection of Classified Information Act 2002, which provides that the level of classification must be changed if it has been set incorrectly. 28. Article 120 of the Constitution of 1991 provides: “1. The courts shall review the lawfulness of the administration’s acts and decisions. 2. Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.” 29. Section 2(1) of the Ministry of Internal Affairs Act 1997 (“the 1997 Act”), in force until the end of April 2006, provided that the Ministry’s activities were subject to “civic control [exercised] through the authorities set out in the Constitution and this Act”. 30. Section 253(1)(5) of the Act provided that civil servants employed by the Ministry were to be dismissed from their posts if they were unfit to carry out their duties. Section 253(2) provided that unfitness of work within the meaning of section 253(1)(5) was to be established in the manner laid down in the Act’s implementing regulations. The dismissal order was subject to judicial review (section 258). 31. Regulation 251(1) of the Act’s implementing regulations, which came into force in September 1998 and were repealed in June 2006, specified that unfitness within the meaning of section 253(1)(5) of the Act could result from: (a) a final conviction and effective sentence of imprisonment; (b) the inability to carry out one’s duties effectively, as established by an internal audit; (c) the systematic or repeated commission of disciplinary offences which were not of a level of gravity warranting disciplinary dismissal; (d) a failure to complete the initial professional qualification course; (e) a failure to submit a conflict-of-interest declaration or an incompatibility established on the basis of such a declaration; (f) mental unfitness for work at the Ministry, as established by the Ministry’s Psychology Institute (regulation 251(1)(6)); and (g) a court order preventing the person concerned from holding certain types of employment as a punishment in a criminal case. 32. On 5 March 2001 the Minister of Internal Affairs issued Instruction no. I37 on “the psychological selection and psychological aspects of the appraisal (reselection) of the civil servants (officers, sergeants and civilian staff) employed by the Ministry”. The instruction was issued under, inter alia, regulation 171 of the 1997 Act’s implementing regulations, which provided that the mental and physical fitness of the Ministry’s staff was to be assessed periodically in a manner laid down by the Minister (this regulation was repealed in April 2003). Section 6 of the Instruction provided that those assessments were to be carried out by the Ministry’s Psychology Institute (see paragraph 33 below). By virtue of section 16, the purpose of the psychological assessment of the Ministry’s staff was to determine (a) their current mental condition, (b) diminished motivation, behavioural or emotional inadequacy, or general deadaption leading to low professional effectiveness, or (c) abuse of position for financial gain. In carrying out the assessment of staff suspected of abusing their posts, the Institute’s experts could resort to a polygraph test (section 17(3)(a)). Such persons could be subjected to sporadic assessments with a view to protecting the Ministry from “staff members who ha[d] lost their mental or emotional stability or other professional qualities and [could] cause damage to themselves, the [Ministry] or society through actions or omissions” (section 19(1)). The conclusion of the assessment could be “mentally fit for the post”, “mentally unfit for the post” or “mentally unfit for work at the Ministry of Internal Affairs” (section 24(3)). The results of the assessment could, inter alia, constitute grounds for dismissal under section 253(1)(5) of the 1997 Act and regulation 251(1)(6) of the Act’s implementing regulations (section 26(5)). The conclusion that a person was “mentally unfit for work at the Ministry of Internal Affairs” was final and not subject to review (section 27(3)). 33. The Ministry’s Psychology Institute was set up by the Government in February 1998 for the purpose of carrying out initial and followup psychological examinations of the staff of the Ministry of Internal Affairs, drawing up psychological expert reports, and training the Ministry’s staff (point 1 of Decree no. 25 of 2 February 1998 of the Council of Ministers). At the relevant time its structure and activities were governed by Regulations no. I263 issued by the Minister of Internal Affairs on 13 November 2001 (in May 2010 they were superseded by Regulations no. I1137). Its director was appointed and dismissed by the Minister. 34. In its early caselaw under section 253(1)(5) of the Act and regulation 251(1)(6), the Supreme Administrative Court consistently held that the Institute’s assessment of a person’s mental fitness for work at the Ministry was not subject to judicial review and could not be contested through any means, and that a conclusion that a person was mentally unfit for work at the Ministry required the Minister to dismiss that person (see реш. № 722 от 28 януари 2002 г. по адм. д. № 8056/2001 г., ВАС, петчл. св; реш. № 4441 от 5 септември 2002 г. по адм. д. № 10880/ 2001 г., ВАС, V о.; реш. № 2819 от 25 март 2003 г. по адм. д. № 11276/2002 г., ВАС, V о.; реш. № 11347 от 8 декември 2003 г. по адм. д. № 6483/2003 г., ВАС, V о.; реш. № 1745 от 26 февруари 2004 г. по адм. д. № 9591/2003 г., ВАС, V о.; реш. № 4093 от 5 май 2004 г. по адм. д. № 375/ 2004 г., ВАС, V о.; and реш. № 5890 от 22 юни 2004 г. по адм. д. № 1318/2004 г., ВАС, V о.). 35. In 2004 several persons brought a legal challenge to regulation 251(1)(6) (see paragraph 31 above). In a judgment of 8 February 2005, which came into force on 18 February 2005 following its publication in the State Gazette (реш. № 1219 от 8 февруари 2005 г. по адм. д. № 4773/2004 г., ВАС, петчл. св, обн., ДВ, бр. 16 от 18 февруари 2005 г.), a fivemember panel of the Supreme Administrative Court partly upheld the challenge and decided to strike out the wording “established by the [Ministry’s] Psychology Institute”. It noted, inter alia, that the Institute was directly subordinate to the Minister, and that its assessments of a person’s mental fitness for work at the Ministry were not subject to any form of review. There was therefore no guarantee that in carrying out those assessments the Institute’s experts would not commit errors, abuse their powers or deprive those concerned of their rights. That was important because if the Institute’s experts assessed a member of staff to be mentally unfit for work at the Ministry, the Minister had no discretion and was bound to dismiss him or her. Although the member of staff concerned could seek judicial review of the Minister’s order, such a challenge would be futile because the assessment, which formed the basis of the Minister’s order, was not amenable to judicial scrutiny. The court acknowledged that the employment of the Ministry’s staff touched upon national security. Nonetheless, it went on to hold that considerations relating to national security had to yield to a person’s right under Article 120 of the Constitution (see paragraph 28 above) to judicial review of all administrative decisions affecting his or her rights. The court said that the assessment of a person’s mental fitness for work at the Ministry of Internal Affairs should be amenable to “the same control for lawfulness, [namely] by several independent experts and by the court, as in the case of assessing health conditions [for the purpose of granting disability benefits]”. Therefore, in as much as it provided that the Ministry’s Psychology Institute was the only body authorised to assess mental fitness for work at the Ministry, regulation 251(1)(6) ran counter to section 2 of the 1997 Act (see paragraph 29 above) and the Health Act 2004. It was in addition contrary to the purpose of the law. 36. Following the delivery of that judgment, a panel of the Supreme Administrative Court held that, as a result of the partial strikedown of regulation 251(1)(6), the Institute’s assessments could, even if predating the strike-down, be subjected to judicial scrutiny in proceedings for judicial review of a dismissal order (see реш. № 3483 от 18 април 2005 г. по адм. д. № 9378/2004 г., ВАС, V о.). 37. However, other panels of the court abided by the old caselaw, holding that the lawfulness of dismissals which preceded the entry into force of the judgment of 8 February 2005 was to be judged by reference to the wording of regulation 251(1)(6) before its partial strikedown because the strikedown did not have retroactive effect (see реш. № 30 от 18 юли 2005 г. по адм. д. № С-27/2005 г., ВАС, петчл. св; реш. № 3949 от 12 април 2006 г. по адм. д. № 9213/2005 г., ВАС, VI о.; реш. № 401 от 10 януари 2006 г. по адм. д. № 5420/2005 г., ВАС, V о.; реш. № 4967 от 11 май 2006 г. по адм. д. № 7006/2005 г., ВАС, VI о.; № Я9 от 11 януари 2007 г. по адм. д. № 3С310/2006 г., ВАС, V о.; and № Я23 от 7 февруари 2007 г. по адм. д. № 5С312/2006 г., ВАС, петчл. св). In one judgment a panel stated that the effect of that judgment had been to make it possible to challenge the Institute’s psychological assessment in cases where the dismissal had taken place after the judgment (see реш. № 6251 от 9 юни 2006 г. по адм. д. № 961/2006 г., ВАС, V о.). 38. A panel of the court also held that the order that a member of staff should submit to a psychological assessment was merely a preparatory act and was not itself amenable to judicial review (see реш. № 7102 от 27 юни 2006 г. по адм. д. № 11119/2005 г., ВАС, V о.). 39. In a number of judgments given between May 2005 and 2008 panels of the court found that the psychological assessment procedure had been used to circumvent the rules governing disciplinary liability, and on that basis quashed the dismissal orders (see реш. № 4919 от 30 май 2005 г. по адм. д. № 10069/2004 г., ВАС, V о.; № 5385 от 10 юни 2005 г. по адм. д. № 8856/2004 г., ВАС, V о.; № 7449 от 27 юли 2005 г. по адм. д. № 6496/2004 г., ВАС, V о.; № 7450 от 27 юли 2005 г. по адм. д. № 11291/2004 г., ВАС, V о.; реш. № 10324 от 23 ноември 2005 г. по адм. д. № 9377/2004 г., ВАС, V о.; реш. № 1401 от 7 февруари 2006 г. по адм. д. № 6239/2005 г., ВАС, VI о.; реш. № 5215 от 16 май 2006 г. по адм. д. № 10715/2005 г., ВАС, V о.; реш. № 5216 от 16 май 2006 г. по адм. д. № 10717/2005 г., ВАС, V о.; реш. № 6787 от 21 юни 2006 г. по адм. д. № 11228/2005 г., ВАС, V о.; реш. № 7410 от 4 юли 2006 г. по адм. д. № 2367/2006 г., ВАС, V о.; реш. № 7449 от 5 юли 2006 г. по адм. д. № 12068/2005 г., ВАС, V о.; and реш. № 7505 от 5 юли 2006 г. по адм. д. № 10746/2005 г., ВАС, V о.; and реш. № 2819 от 12 март 2008 г. по адм. д. № 8881/2007 г., ВАС, III о.). In some of those cases the panels also held that, as far as it provided that the psychological assessment could determine whether the member of staff had abused his or her position for financial gain, Instruction no. I37 (see paragraph 32 above) ran counter to the Act: mental fitness for work was not to be confused with the commission of disciplinary offences (see реш. № 7724 от 11 юли 2006 г. по адм. д. № 3038/2006 г., ВАС, V о., and реш. № 7726 от 11 юли 2006 г. по адм. д. № 772/2006 г., ВАС, V о.). 40. Section 245(1)(3) of the Ministry of Internal Affairs Act 2006 (“the 2006 Act”), which superseded the 1997 Act in May 2006, provides that a civil servant employed by the Ministry must be dismissed on health grounds if he or she cannot perform his or her duties as a result of a health condition which has led to a permanent disability or as a result of medical contraindications. 41. Section 245(3) (until the end of 2010 section 245(2)) of the 2006 Act provides that the circumstances under section 245(1)(3) are to be determined by a Central Medical Expert Commission, whose assessment may be challenged before the Sofia City Administrative Court. Regulation 259(1) of the Act’s implementing regulations, adopted in June 2006, specifies that that Commission is attached to the Medical Institute of the Ministry of Internal Affairs. 42. When dealing with challenges to dismissal orders issued by reference to section 245(1)(3), some panels of the Supreme Administrative Court have stood by the position that the assessment whether a person is fit for work at the Ministry of Internal Affairs was not amenable to judicial scrutiny in proceedings directed against the dismissal order (see реш. № 7170 от 16 юни 2008 г. по адм. д. № 12426/2007 г., ВАС, III о.; реш. № 11138 от 27 октомври 2008 г. по адм. д. № 5095/2008 г., ВАС, III о.; and реш. № 2289 от 19 февруари 2009 г. по адм. д. № 15361/2008 г., ВАС, петчл. св). However, another panel examined the validity of such an assessment by reference to the conclusions of medical experts appointed in the course of the judicial review proceedings (see реш. № 8940 от 6 юли 2009 г. по адм. д. № 5836/2009 г., ВАС, петчл. св). 43. The administrative courts have on several occasions examined direct challenges to assessments of the abovementioned Central Medical Expert Commission. In doing so, they have sought the assistance of medical experts, and have taken into account the opinions of those experts (see реш. № 8753 от 1 юли 2009 г. по адм. д. № 5224/2009 г., ВАС, VІ о.; реш. № 3468 от 22 юни 2012 г. по адм. д. № 7227/2011 г., АССГ; and реш. № 4214 от 19 юли 2012 г. по адм. д. № 3664/2012 г., АССГ).