CEDH · CASELAW;CLIN;ENG — 2 juillet 2009

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Bulgaria - 23530/02 Judgment 2.7.2009 [Section V] Article 6 Civil proceedings Article 6-1 Fair hearing Profound and persistent differences in interpretation of statutory provision by a supreme court: violation   Facts : The three applicants and one other person, B.B., were dismissed from the Operational and Technical Intelligence Department of the Ministry of the Interior after having been identified by an internal investigation body as those responsible for the presence of listening devices in the official residence of the Principal State Prosecutor which they had failed to detect. They disputed the lawfulness of their dismissal before the Supreme Administrative Court. A panel of three judges annulled the dismissals because the persons concerned had not had the benefit of the guarantees provided for under Bulgarian law in connection with official investigations, which also applied to internal investigations. The Minister of the Interior appealed on points of law. An initial bench of five judges of the Supreme Administrative Court upheld the decision annulling B.B.’s dismissal. A few months later, however, a slightly different bench disagreed with the reasoning that same court had adopted in the B.B. case and overturned the first-instance judgments concerning the three applicants because the procedural guarantees attending official investigations were not applicable to internal investigations. In its case-law the Supreme Administrative Court had adopted two different stances on the question whether the procedural guarantees offered in the event of an official investigation to a staff member threatened with dismissal for disciplinary reasons also applied in the event of an internal investigation. In some judgments it had found that the guarantees applied to internal investigations by analogy with the procedural guarantees offered in the event of official investigations, while in others it had taken the opposite view. Law : The principle of legal certainty was implicit in all the Articles of the Convention and was one of the fundamental aspects of the rule of law. While divergences in the case-law were inherent in any judicial system composed of a series of trial courts each having authority in its own geographical jurisdiction, the role of the Supreme Court was precisely to resolve those contradictions. There were “profound and long-standing differences” in the Supreme Administrative Court’s interpretation of the relevant domestic legal provision. The court that had heard the applicants’ appeal had ruled that certain procedural guarantees were not applicable to internal investigations, whereas only a few months earlier the same court, with an almost identical bench had adopted the opposite position in the case of B.B. Furthermore, the relevant case-law of the Supreme Administrative Court revealed two different interpretations of the relevant provisions of the law governing official investigation and internal investigation procedures, which had continued after the adoption of the judgments in the present case. Also, although there was a remedy for this situation in domestic law under Articles 44 and 45 of the Supreme Administrative Court Act (namely the possibility of requesting an interpretation of the relevant legal provisions in order to harmonise the case-law) it was never implemented and the legal uncertainty had continued, effectively depriving the applicants of one of the essential guarantees of a fair hearing within the meaning of Article 6 § 1. Conclusion : violation (unanimously). Article 41 – EUR 4,500 to the first applicant and EUR 4,000 each to the second and third applicants in respect of non-pecuniary damage. (See also Beian v. Romania (no. 1) , no. 30658/05, Information Note no. 103)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes