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FIFTH
SECTION
CASE OF NEDELCHO POPOV v. BULGARIA
(Application
no. 61360/00)
JUDGMENT
STRASBOURG
22
November 2007
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 Nedelcho Popov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mr M. Villiger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 23 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61360/00) 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 the Bulgarian national Mr Nedelcho Miloshev
Popov, who was born in 1943 and lives in Sofia (“the
applicant”), on 10 April 2000.
- The
applicant was represented before the Court by Ms E. Tancheva, a
lawyer practising in Sofia.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
- The
applicant alleged that he was denied access to a tribunal competent
to examine all issues relevant to whether he had been unfairly
dismissed.
- On
20 May 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- On
20 June 2007 the Court decided that the parties should be invited to
submit further written observations on the admissibility and merits
of the application in the light of the recent judgment in the case of
Vilho Eskelinen and Others v. Finland [GC] (no. 63235/00, 19
April 2007).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's employment
- The
applicant entered the employment of the Council of Ministers on 1
March 1991 as an “Adviser” in its “Local
administration and regional policy” department. Subsequently,
he was promoted to the post of “Chief Adviser” in the
same department. The applicant's employment obligations included,
inter alia, (a) providing expert advice relating to the
preparation of draft legislation and (b) preparing opinions on such
texts. He was also involved in providing technical assistance for
organising national and municipal elections.
- The
applicant's employment contract was initially for an indefinite term.
With an amendment of 22 February 1997 it was changed into a fixed
term contract set to expire on 31 March 1997. The term of the said
agreement was extended twice, the final term having been until 30
June 1997. The applicant's remuneration under the last agreement was
302,500 old Bulgarian levs (approximately 349 German marks at
the relevant time).
- Following
the expiration of the applicant's employment agreement on 30 June
1997 he continued going to work and fulfilling his employment
obligations without any objections from his employer. The applicant
considered therefore that his contract had been transformed into an
employment agreement for an indefinite term (see paragraph 17 below).
B. The applicant's dismissal
- On
29 July 1997 the applicant was served with an order, dated 28 July
1997, for terminating his employment agreement as of 30 July 1997.
The order was signed on behalf of the Minister of State
Administration, instead of the Chief Secretary of the Council of
Ministers, which was the competent officer, according to the
applicant, in employment matters. The basis for terminating the
employment agreement was the expiration of its term.
C. The applicant's appeals against his dismissal
- On
21 September 1997 the applicant addressed a request to the Prime
Minister petitioning him to reconsider the dismissal and to reappoint
him. He received no response to his request.
1. Administrative proceedings
- On
26 March 1998 the applicant initiated an action under the
Administrative Procedure Act. He petitioned the court to declare the
order for his dismissal null and void and to award him compensation
for loss of income.
- The
administrative proceedings went through two levels of jurisdiction.
With a final decision of 30 October 1998 the extended panel of the
Supreme Administrative Court rejected the applicant's action. The
courts found that the order for his dismissal was not an
administrative act of the type that could be challenged under the
Administrative Procedure Act and that he should have initiated a
civil action instead.
2. Civil proceedings
- In
the meantime, on 14 July 1998 the applicant initiated civil
proceedings. He petitioned the courts to recognise the continued
existence of an employment agreement, to declare the order for his
dismissal null and void, to order that he be granted access to his
workplace and to award him compensation for loss of income during the
time he had been denied such access.
- With
a final decision of 19 October 1999 the Supreme Court of Cassation
rejected all but one of the applicant's claims – for loss of
income during the period he was denied access to his workplace. In
respect of the other claims, the courts found that the applicant
should instead have initiated an action for unfair dismissal under
Article 344 of the Labour Code (the “Code”) and should
have done so prior to the expiration of the six month statutory
deadline on 30 January 1998. The courts recognised that prior to the
judgment of the Constitutional Court of 30 April 1998 the applicant
had been barred under Article 360 § 2 (2) of the Code from
initiating such an action for unfair dismissal. However, they
reasoned that if he had nevertheless initiated such an action, the
courts before which the case would have been pending on 30 April 1998
might have taken into account the judgment of the Constitutional
Court and might have examined the case on the merits.
- The
remainder of the applicant's civil action, in respect of his claim
for loss of income during the period he was denied access to his
workplace, was examined by three levels of jurisdiction. With a final
judgment of 25 September 2003 the Supreme Court of Cassation
dismissed the applicant's claim. The courts found that in so far as
the dismissal of the applicant had never been proven to be unfair in
any other set of proceedings, there was no obligation on the part of
his previous employer to grant him access to his former workplace
after 30 July 1997 and, therefore, that it was not liable to pay him
compensation for loss of income for having failed to do so. The
Supreme Court of Cassation recognised that the applicant had not been
afforded the right to challenge his dismissal prior to the judgment
of Constitutional Court but reasoned that he had been aware of that
restriction at the time he entered Government employment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Labour Code
- Article
69 § 2 of the Code provides that an employment contract
concluded for a fixed term shall be transformed into a contract for
an indefinite term if (a) the employee continues working for five or
more working days after the expiration of the term under the fixed
term contract, (b) without the employer making a written objection
and (c) provided the position is vacant.
- Article
358 § 1 (2) of the Code provides that actions for unfair
dismissal have to be initiated within six months of the date of
termination of the employment agreement.
- Article 360 § 2 (2)(a) of the Code provided, at
the relevant time, that the domestic courts did not have jurisdiction
to review disputes regarding dismissals from certain posts in the
Council of Ministers, including, inter alia, the posts of
“Chief Adviser, ... Principal Adviser, Adviser”.
- In
a judgment of 30 April 1998 (State Gazette no. 52/98) the
Constitutional Court declared unconstitutional the restriction of
Article 360 § 2 (2)(a) of the Code in respect of, inter alia,
the posts of “Chief Adviser, ... Principal Adviser,
Adviser”. The court found the said restriction to be contrary
not only to the Bulgarian Constitution but to a number of
international conventions and charters to which the State was party,
including specifically Article 6 § 1 of the Convention in
respect of the right to a fair trial. The finding of the
Constitutional Court did not have a retroactive effect, but was
allegedly applied in practice to unfair dismissal proceedings pending
before the domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he was denied access to a tribunal
competent to examine all issues relevant to whether he had been
unfairly dismissed as guaranteed by Article 6 § 1 of the
Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. The parties' submissions
1. Government
- In their initial observations the Government, relying
on the Court's judgment in the case of Pellegrin v. France
([GC], no. 28541/95, ECHR 1999 VIII), argued that the
applicant's complaint was incompatible ratione materiae with
the provisions of the Convention as it considered him to have been a
civil servant “whose duties typify the specific activities of
the public service in so far as the latter is acting as the
depositary of public authority responsible for protecting the general
interests of the State or other public authorities” (ibid., §
66).
- In their supplementary observations the Government
maintained their argument that the applicant's complaint was
incompatible ratione materiae with the provisions of the
Convention in view of the post he had held. They claimed that as
Chief Adviser in the “Local administration and regional policy”
department he had been directly involved in the preparation and
adoption of normative acts by the Council of Ministers and had been
influential in the formulation and implementation of the State's
regional policy. Accordingly, the Government considered that the
dispute did not involve the determination of his civil rights within
the meaning of Article 6 of the Convention. Additionally, they argued
that the applicant's special bond of trust and loyalty with the
authorities had been severed after the election in 1997 of a
government different from the one that had appointed him in 1991.
- In their initial observations the Government also
raised an objection of non-exhaustion. Based on the findings of the
domestic courts they argued that, in spite of the existing
restriction at the relevant time, the applicant should have initiated
an action for unfair dismissal prior to the judgment of the
Constitutional Court which might have been examined on the merits had
it been pending before the lower courts. In support of their
argument, they claimed that the applicant should have anticipated the
possible finding in his favour of the Constitutional Court as he
should have been aware that part of the relevant provision of the
Code had been declared unconstitutional in a previous case and that a
second case was pending before the said court when he had been
dismissed. Alternatively, the Government considered that the
applicant should have attempted to expand the scope of the other
proceedings he later initiated by, for example, petitioning the
courts to examine an action for unfair dismissal within those sets of
proceedings.
- On the merits, the Government agreed that prior to 30
April 1998 the order for the applicant's dismissal could not be
challenged before the domestic courts. However, they considered this
to have been in conformity with the Convention and the case-law
developed by the Court. In addition, the Government noted that the
applicant must have been aware of the aforesaid restriction when he
started his employment and that he had therefore consented to it. In
spite of this, he initiated a number of unsuccessful actions which
the domestic courts examined fairly and exhaustively.
2. Applicant
- In his initial observations the applicant objected to
the Government's reliance on the Pellegrin criterion. He noted
that they failed to present a job description for the post he had
held and argued that his functions did not “wield a portion of
the State's sovereign power”. Thus, he considered Article 6 of
the Convention applicable.
- In
his supplementary observations the applicant, relying on the judgment
in the case of Vilho Eskelinen and Others (cited above),
considered Article 6 of the Convention applicable. He argued that
only one of the conditions specified in paragraph 62 of the said
judgment had been met at the time he had been dismissed from service
– the State in its national law had expressly excluded access
to a court for the post he had held because Article 360 § 2 (2)
of the Code precluded challenging the dismissal of a “chief
adviser”. The applicant further argued that the second
condition could not be considered to have been met – that the
above restriction was justified on objective grounds in the State's
interest. He noted in this respect the judgment of 30 April 1998 of
the Constitutional Court which declared unconstitutional the said
restriction when it found it to be contrary not only to the Bulgarian
Constitution but to a number of international conventions and
charters to which the State was party, including specifically Article
6 § 1 of the Convention in respect of the right to a fair
trial.
- In his initial observations the applicant challenged
the Government's objection of non-exhaustion and asserted that at the
time of his dismissal he was barred from initiating an action for
unfair dismissal by virtue of Article 360 § 2 (2)(a) of the
Code. Accordingly, he did not initiate such an action not because he
did not want to or failed to do so, but because he was restricted
from doing so under domestic legislation as it stood prior to
30 April 1998. Subsequent to that date, such an action was
time-barred so he could not have petitioned the domestic courts to
examine it in any of the other sets of proceedings either.
- On the merits, the applicant noted that the Government
had consented that at the time of his dismissal there was a statutory
restriction in place which denied him the opportunity to challenge it
before the domestic courts. As to its justification, he referred to
the findings of the Constitutional Court that the said restriction
was contrary not only to the Bulgarian Constitution but to a number
of international conventions and charters to which the State was
party, including specifically Article 6 § 1 of the Convention in
respect of the right to a fair trial.
B. Admissibility
1. The Government's objections
- The Government, essentially relying on Pellegrin,
argued that the complaint brought by the applicant was outside the
scope of Article 6 of the Convention as it related to his dismissal
from service as a civil servant of the State. They also raised an
objection of non-exhaustion.
- The Court observes that in the Pellegrin judgment
it attempted to establish an autonomous interpretation of the term
“civil service” and introduced a functional criterion
based on the nature of the employee's duties and responsibilities.
However, in its recent judgment in the case of Vilho Eskelinen and
Others (cited above), the Court found that the functional
criterion, adopted in the Pellegrin judgment, did not simplify
the analysis of the applicability of Article 6 of the Convention in
proceedings to which a civil servant was a party or brought about a
greater degree of certainty in this area as intended (ibid., §
55). For these reasons the Court decided to further develop the
functional criterion set out in Pellegrin and adopted the
following approach:
“... in order for the respondent State to be able
to rely before the Court on the applicant's status as a civil servant
in excluding the protection embodied in Article 6, two conditions
must be fulfilled. Firstly, the State in its national law must have
expressly excluded access to a court for the post or category of
staff in question. Secondly, the exclusion must be justified on
objective grounds in the State's interest. The mere fact that the
applicant is in a sector or department which participates in the
exercise of power conferred by public law is not in itself decisive.
In order for the exclusion to be justified, it is not enough for the
State to establish that the civil servant in question participates in
the exercise of public power or that there exists, to use the words
of the Court in the Pellegrin judgment, a “special bond
of trust and loyalty” between the civil servant and the State,
as employer. It is also for the State to show that the subject matter
of the dispute in issue is related to the exercise of State power or
that it has called into question the special bond. Thus, there can in
principle be no justification for the exclusion from the guarantees
of Article 6 of ordinary labour disputes, such as those relating to
salaries, allowances or similar entitlements, on the basis of the
special nature of relationship between the particular civil servant
and the State in question. There will, in effect, be a presumption
that Article 6 applies. It will be for the respondent Government to
demonstrate, first, that a civil-servant applicant does not have a
right of access to a court under national law and, second, that the
exclusion of the rights under Article 6 for the civil servant is
justified.” (ibid., § 62)
- Turning
to the present case, the Court notes that the criterion introduced in
the Vilho Eskelinen and Others judgment in respect of its
competence ratione materiae – whether a civil-servant
applicant has a right of access to a court under national law and, if
so, whether any exclusion of this right is justified – relates
to and is indistinguishable from the merits of the applicant's
complaint that he was denied access to a tribunal competent to
examine all issues relevant to whether he had been unfairly dismissed
from his post as a civil servant.
- The
same consideration applies to the question of whether the applicant
had available a domestic remedy to exhaust.
- Therefore,
to avoid prejudging the merits, these questions should be examined
together.
- Accordingly,
the Court holds that the issue of whether the Court is competent
ratione materiae to examine the applicant's complaint under
Article 6 of the Convention and the question of exhaustion of
domestic remedies should be joined to the merits.
2. Conclusion
- The Court finds that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
- The
Court reiterates that Article 6 § 1 of the Convention secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way it
embodies the “right to a court”, of which the right of
access, that is the right to institute proceedings before courts in
civil matters, constitutes one aspect (see Golder v. the United
Kingdom, judgment of 21 February 1975, Series A no. 18,
p. 18, § 36). However, the right of access to the courts is not
absolute but may be subject to limitations that do not restrict or
reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired (Ashingdane
v. the United Kingdom, judgment of 28 May 1985, Series A no. 93,
p. 24, § 57).
- In
the present case, it is not disputed by the Government (see paragraph
25 above) that at the time of the applicant's dismissal on 30 July
1997 he did not have a right of access to a court under national law
to bring an action for unfair dismissal by virtue of the restriction
imposed by Article 360 § 2 (2)(a) of the Code. The said
restriction persisted for the six month term during which the
applicant could have initiated such an action and the latter was
time-barred by the time it was declared unconstitutional.
- As
to whether the exclusion of the right of access to court was
justified in respect of the applicant, the Court refers to the
finding of the Constitutional Court in its judgment of 30 April 1998
that the restriction of Article 360 § 2 (2)(a) of the Code in
respect of, inter alia, the posts of “Chief Adviser, ...
Principal Adviser, Adviser”, was both unconstitutional and in
violation of a number of international conventions and charters to
which the State was party, including Article 6 § 1 of the
Convention in respect of the right to a fair trial (see paragraph 20
above). Thus, in view of the principle of subsidiarity inherent in
the machinery of the Convention, the Court finds that there was no
justification for the restriction of the applicant's right of access
to a court.
- In
these circumstances and in applying the Vilho Eskelinen and Others
criterion the Court finds that it is competent ratione
materiae to examine the present complaint and, furthermore, finds
that there has been a violation of the applicant's right of access to
a tribunal competent to examine all issues relevant to whether he had
been unfairly dismissed, as guaranteed by Article 6 § 1 of the
Convention.
It
follows that the Government's preliminary objection of failure to
exhaust the domestic remedies must be dismissed.
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 claimed 75,609.12 Bulgaria levs (BGN) or 38,658 euros
(EUR) as compensation for the pecuniary damage suffered as a result
of his inability to challenge before the domestic court his dismissal
and to prove that it had been unfair. The claimed amount represented
the difference between the emoluments he would have received for the
period up to 31 December 2005, had he been reinstated to his previous
post, and the remuneration he actually received holding various other
posts over the given period, plus interest. The applicant presented a
financial expert's report attesting to the aforesaid amount.
- The
applicant also claimed non-pecuniary damage but asked the Court to
determine a fair compensation in this respect.
- The
Government stated that the applicant's claim for pecuniary damage was
excessive. They also argued that there was no direct causal link
between the alleged violation of his right of access to a court and
the compensation claimed.
- The
Court found that the applicant was barred from bringing an action for
unfair dismissal by virtue of a statutory restriction for
civil servants to do so at the relevant time, which represented
a violation of his right of access to a court under Article 6 §1
of the Convention (see paragraph 40 above). However, it would be
speculation to accept that had the applicant had such a right of
action and had utilised it that he would undoubtedly have been
successful. Thus, the Court cannot find a direct causal link between
the violation found and the pecuniary damage sought by the applicant.
- In
respect of non-pecuniary damage, the Court finds that the applicant
must undoubtedly have suffered certain anguish and despair from
having been unable to challenge his dismissal before a court. It
notes, in this respect, his repeated unsuccessful attempts to obtain
redress for his Convention complaints by utilising other rights of
action available to him under domestic employment legislation. Thus,
having regard to the circumstances of the present case and deciding
on an equitable basis the Court awards EUR 2,500 under this head,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed BGN 3,000 (approximately EUR 1,540) for 30
hours of legal work by his lawyer in the proceedings before the Court
at an hourly rate of EUR 50. In addition, he claimed BGN 1,395.73
(approximately EUR 712.54) for translation, certification and
notarisation of documents and for postal expenses. He submitted a
legal fees agreement between him and his lawyer, as well as invoices
and receipts for the translations, certifications, notarisations and
postal expenses.
- The
Government stated that the applicant's claim for costs and expenses
was excessive. Firstly, they noted that the applicant had appointed
his lawyer only after the application had been communicated and that
he had failed to present a timesheet for the work she had performed.
Secondly, they considered that the cost for translation,
certification and notarisation of documents for presentation to the
Court was not a necessary expense as he could have presented them
only in Bulgarian. Thus, they argued that any award in this respect
should be reduced accordingly.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession of the expenses incurred and the above criteria, the
Court considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Decides to join to the merits the issue of
whether it is competent ratione materiae to examine the
complaint under Article 6 of the Convention and the question of the
exhaustion of domestic remedies;
- Declares the application admissible;
- Holds that it is competent ratione materiae
to examine the complaint under Article 6 of the Convention and that
there has been a violation of the said article as a result of the
applicant being denied access to a tribunal competent to examine all
issues relevant to whether he had been unfairly dismissed, and
accordingly dismisses the Government's preliminary objection
based on non-exhaustion of domestic remedies;
- Holds
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts, to
be converted into Bulgarian levs at the rate applicable on the date
of settlement:
(i) EUR
2,500 (two thousand five hundred euros) in respect of non-pecuniary
damage;
(iii) EUR
2,000 (two thousand euros) in respect of costs and expenses;
(iv) any
tax that may be chargeable on the above amounts;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar
President
