CEDH · CASELAW;CLIN;ENG — 19 septembre 2023

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary October 2023 Davchev v. Bulgaria (dec.) - 39247/14 Decision 19.9.2023 [Section III] Article 6 Civil proceedings Article 6-1 Access to court Applicant’s dismissal from his administrative post as head of investigation department of regional prosecutor’s office: Article 6 in applicable; inadmissible Facts – The applicant held the post of prosecutor until April 1992, when he was relieved of his duties by a decision of the Supreme Judicial Council (“the SJC”). The decision was taken on the basis of the transitional provisions in the 1991 Constitution which provided that judges, prosecutors and investigators in post at the time of its entry into force had security of tenure unless the SJC, a newly created body under the Constitution, deemed, in the three months after it was established, that the individuals in question did not have the required professional qualities. The applicant did not lodge an application for judicial review of the SJC’s decision, despite having the possibility to do so. The applicant subsequently re-joined the Prosecutor’s Office and was appointed as an investigator (investigation department). Following an internal competition, the SJC appointed him to the post of head of a regional investigation department for a five-year term, from 10 June 2004. Under a reform of the Judiciary Act which was enacted in April 2009 and came into force in May 2009, the regional investigation departments were dissolved and became investigation departments within regional prosecutor’s offices. The applicant continued in his role as head of department until the end of his initial five-year term, in application of the final and transitional provisions of the Act. On 10 June 2009 he was appointed head of the investigation department in the regional prosecutor’s office. In September 2013 the head of the regional prosecutor’s office (the regional prosecutor) removed the applicant from his post owing to irregularities in the distribution of cases and a lack of coordination within his department. The applicant continued working in the department as an investigator. In October 2013 the Administrative Court declared inadmissible the applicant’s request for judicial review of the regional prosecutor’s decision. The Supreme Administrative Court upheld the lower court’s decision in November 2013. In parallel, in June 2013 the applicant lodged an application to have the SJC’s decision of April 1992 removing him from his post as prosecutor declared null and void. In December 2013 the Supreme Administrative Court rejected his application. In April 2014 it rejected his subsequent appeal on points of law. Law – Article   6 §   1: (1)     Alleged lack of access to a court to challenge the applicant’s removal from his post as head of department – The first question that the Court had to address was whether the applicant had a “right” which could be said, at least on arguable grounds, to be recognised under domestic law. In assessing this question, the Court had to take as a starting-point the provisions of the domestic law and their interpretation by the domestic courts. Before the domestic courts, the applicant had submitted that he had been entitled to remain in his post as head of the investigation department unless it was established that he had committed a fault or had failed in his duties. Having noted that under the domestic legislation appointment to or removal from that post was entirely at the discretion of the regional prosecutor, the domestic courts had considered that the applicant could not be said to have been entitled to be kept in his post and that his legitimate rights and interests had not been affected, so that the legality of the decision in issue could not be subject to judicial review. The applicant had been appointed as head of a regional investigation department on 10   June 2004, for a five-year term. Under the transitional provisions of the law amending the Judiciary Act, to the effect that regional heads of departments would remain in their posts until the expiry of their initial term, the applicant had been able to continue exercising his functions until 9 June 2009. His appointment on 10 June 2009 as head of department had thus been made in application of the amended version of the Judiciary Act, which did not specify the duration of the term of office for this administrative post or any substantive or procedural conditions for its termination. Furthermore, it appeared that a clear distinction was made in domestic law between the conditions applicable to administrative roles such as head of department, for which no detailed regulations existed and which were therefore at the discretion of the relevant administrative heads, and those applicable to the role of prosecutor itself and to the posts of administrative heads. Appointment to posts of administrative head of a prosecutor’s office or of a court, the promotion of judges, prosecutors or investigators and the termination of their duties were governed by detailed substantive and procedural rules, compliance with which was subject to judicial review by the domestic courts. In view of these elements of domestic law, the administrative courts’ finding that the applicant could not be said to have had an arguable right to remain in his post as head of department appeared neither arbitrary nor manifestly unreasonable. The present case had therefore to be distinguished from other cases in which the Court had concluded that the applicants had a “right” to continue performing their duties in so far as the domestic law set out the conditions under which these duties could be brought to an end in advance or even laid down a pre-determined term. Nor was it possible to infer a right for the applicant to remain in his post from the constitutional principles relating to the independence and irremovability of prosecutors, since the domestic law had clearly excluded administrative posts such as head of department from the scope of that protection; this arrangement was hardly surprising, having regard to the hierarchical structure of the Prosecutor’s Office in Bulgaria. The Court observed that the reduction in the applicant’s salary of approximately 6% as a result of the contested decision was not significant, and that it apparently corresponded to the removal of certain of the applicant’s previous tasks and responsibilities and was thus intrinsically linked to the role of head of department. The Court also considered that the criticisms made in the regional prosecutor’s decision, which had not been made public, could have had only limited repercussions on the applicant’s reputation, which did not appear to be sufficient for Article 6 to be applicable. Thus, in the light of the specific domestic legal framework applicable to the administrative post of head of department held by the applicant, particularly the discretion enjoyed by the regional prosecutor and the absence of rules governing the early termination of such duties, having regard to the relatively limited consequences on the applicant’s salary and career and noting, moreover, that judicial independence was not at stake in the present case, the Court considered that the post held by the applicant was rather an “advantage which it was not possible to have recognised in the courts” and that the applicant therefore had no arguable right to remain in that post. It followed that Article 6 was not applicable. In the light of that conclusion, it was not necessary for the Court to determine whether, in view of the applicant’s status as a prosecutor, the “right” claimed by him was “civil” within the autonomous meaning of that concept in the Court’s case-law. Conclusion : inadmissible (incompatible ratione materiae ). (2)     Alleged lack of independence and impartiality of the Supreme Administrative Court in the proceedings to have the 1992 decision to dismiss the applicant declared null and void – It was not disputed that Article   6 in its civil limb was applicable to the proceedings in question. With regard to the general principles relating to the guarantees of independence and impartiality under this provision in its case-law, the Court referred to its judgment in Ramos Nunes de Carvalho e Sá v.   Portugal [GC]. In the Donev v.   Bulgaria judgment, the Court had examined a similar complaint to that raised by the applicant in the present case concerning the Supreme Administrative Court’s independence and impartiality vis-à-vis the SJC, given the powers that that body exercised over all judges, even those on the bench of the Supreme Administrative Court. The Court had found that the applicant’s fears could not be regarded as objectively justified and concluded that there had been no violation of Article 6. With regard to the objective independence and impartiality of the Supreme Administrative Court, the Court saw no reason to come to a different conclusion in the present case. Furthermore, the applicant had not cast doubt on the subjective impartiality of the judges who had ruled on his case. Nor did the applicant’s arguments concerning the conclusions reached and the reasoning in the Supreme Administrative Court’s decisions allow for a finding of a lack of independence and impartiality on the part of that court. Moreover, the Supreme Administrative Court had addressed the applicant’s main arguments and had delivered duly reasoned decisions which did not appear to be arbitrary. Conclusion : inadmissible (manifestly ill-founded). (See also Baka v.   Hungary [GC], 20261/12 , 23   June 2016, Legal Summary ; Miryana Petrova v.   Bulgaria , 57148/08 , 21   July 2016; Regner v.   Czech Republic [GC], 35289/11 , 19   September 2017, Legal Summary ; Denisov v.   Ukraine [GC], 76639/11 , 25   September 2018, Legal Summary ; Ramos Nunes de Carvalho e Sá v.   Portugal , 55391/13 and 2   others, 6   November 2018, Legal Summary ; Broda and Bojara v.   Poland , 26691/18 and 27367/18, 29   June 2021; Donev v.   Bulgaria , 72437/11 , 26   October 2021)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .