European Court of Human Rights rejects application against Bulgaria over Dossier Commission disclosures

Written by on January 11, 2018 in Bulgaria - Comments Off on European Court of Human Rights rejects application against Bulgaria over Dossier Commission disclosures

A seven-judge chamber of the European Court of Human Rights has rejected unanimously a complaint by a lawyer against a 2008 decision by Bulgaria’s Dossier Commission to expose him as having been affiliated with the country’s communist-era secret services.

The case was submitted to the court by Haralambi Anchev, who held several high-ranking posts in Bulgaria in the 1990s, including as deputy prime minister and justice minister for a few months in 1997.

Anchev was checked by the Dossier Commission, once in 2008 and twice in 2014, on the grounds of having held public office. Set up by a 2006 law, the commission is empowered to announce who, in various areas of public life, had worked for Bulgaria’s communist-era secret services.

The European Court of Human Rights found that the system chosen in Bulgaria for exposing those found to have been affiliated with the former security services was tightly circumscribed and surrounded by a number of safeguards.

It had been chosen after 16 years of debate, approved by Parliament with cross-party support, and upheld by Bulgaria’s Constitutional Court.

“Moreover, the statutory scheme remained well within the bounds of the substantial room for manoeuvre to be given to ex-communist States in Eastern Europe in choosing how to deal with the legacy of undemocratic regimes,” the European Court of Human Rights said in a January 11 statement.

Unlike in other formerly communist states, the decisions to expose those who had been affiliated with the former security services are purely declaratory and do not entail sanctions such as banning people from office or disenfranchisement.

Nor did the scheme entail the kind of moral censure to be found under lustration schemes in place in other States.

The court was “not certain either” that exposure in Bulgaria carried the same kind of universal social stigma as in other states.

“A number of public figures have been exposed since 2007 without serious social or financial consequences. Indeed, Mr Anchev himself has continued to be involved in business and public life since his exposure,” the European Court of Human Rights said.

The first investigation in 2008 was triggered by Anchev holding public office. Relying on a registration form, an entry in the registration journal, an index card, a report on Anchev’s recruitment and a proposal to discharge him, the commission decided to expose him as having been affiliated from 1982 to 1990 with one of the departments of the former security services which dealt with information and analysis. The commission published the decision on its website.

Anchev did not seek judicial review, considering it pointless. He did however write an article in a daily newspaper denying that he had been a collaborator, and pointing out that the security services often put false information in files in order to fill their recruitment quotas or for other ulterior motives.

The second and third investigations, triggered by Anchev’s involvement in other high-ranking public activities (with the Supreme Bar Council and as a board member of a private company which had purchased state property), resulted in nearly identical decisions. The commission based both decisions on the same documents it had relied on in the 2008 decision.

Anchev sought judicial review of both decisions, without success. The courts essentially held that the commission did not have to check whether he had in fact consented to be recruited as a collaborator or assess the nature or extent of his collaboration, the statute simply providing for the exposure of affiliation with the former security services if records were found on him.

Exposing his affiliation had therefore been lawful. This conclusion was based on the Supreme Administrative Court’s case-law and on a judgment of 2012 by the Constitutional Court finding the provisions of the 2006 statute constitutional.

Since being exposed in 2008, Anchev has continued to have a role in business and public life, writing articles and taking part in radio or television programmes on questions of civil society. He is also still a member of the Sofia Bar Association, the European Court of Human Rights noted.

The applications were lodged with the European Court of Human Rights on August 11 2008 and November 11 2016.

Anchev’s main criticism was that the statutory scheme which had exposed his affiliation to the security services did not require an individual assessment of the reliability of the records on him or of his precise role, thus leaving the question of whether he had in fact collaborated unanswered.

He relied in particular on Article 8 (right to respect for private life) and Article 13 (right to an effective remedy) to allege that the decisions exposing his affiliation to the security services had stigmatised him and had caused deep upset to his private and social life.

He also alleged under Article 6 § 1 (right of access to court/to a fair trial) that the related judicial review proceedings had deprived him of effective access to a court and had been unfair.

On the right to respect for private life, the European Court of Human Rights found that the exposure of Anchev’s affiliation with the security services, based on the relevant provisions of the 2006 statute, was “in accordance with the law”.

The statute, published in the State Gazette, was accessible and clearly indicated the circumstances in which someone could be checked and exposed.

The process of exposure was also surrounded by a number of safeguards, one of the most important being that the only way in which someone could be exposed was via proceedings before a special independent commission, whose members were elected by the legislature and which could not be dominated by any one political party.

The 2006 statute was regulated in detail and provided for judicial review – which Anchev had in fact made use of on two occasions.

Furthermore, the ECHR accepted that such exposure aimed at improving the transparency of public life and promoting trust in the new democratic institutions after the fall of the communist regime.

Moreover, the Bulgarian authorities had substantial room for manoeuvre (“margin of appreciation”) in choosing how to deal with the legacy of an undemocratic regime.

The system exposing affiliation had been chosen after 16 years of debate and passed by the legislature with cross-party support.

The courts, in particular the Constitutional Court in 2012, had then reviewed the statute carefully, balancing the competing interests at stake.

“Indeed, the chosen statutory scheme remained well within the bounds of that room for manoeuvre,” the European Court of Human Rights said.

Even though the Bulgarian scheme did not provide for an individual assessment of the evidence on each person featuring in the security services’ surviving records, which was Anchev’s main criticism, the Court found that this had been justified.

As many of the files had been covertlydestroyed, the Bulgarian legislature had chosen to provide for the exposure of anyone found to feature in any of the surviving records, even if there had been no other documents showing that he or she had collaborated.

Otherwise, as explained by the Constitutional Court in 2012, collaborators whose files had survived would have been treated less favourably without justification.

Lastly, the Court found that Anchev had been able to access his records almost immediately after his affiliation with the security services had been exposed and had then publicly contested their reliability in the media.

The exposure was not disproportionate because of there having been two additional decisions: the commission could not be faulted for proceeding in a gradual manner given the considerable number of people and institutions it had to investigate and, in any case, the two additional decisions had been identical to the first one.

In view of all those considerations the Court considered that exposing Anchev’s affiliation with the former security services could be seen as “necessary in a democratic society”.

“The complaint under Article 8 was therefore manifestly ill-founded and had to be rejected as inadmissible,” the ECHR said.

The ECHR found that Anchev’s other complaints under Article 13 and Article 6 § 1 were manifestly ill-founded and rejected them as inadmissible.

As concerned the right to an effective remedy, Anchev could, and twice did, seek judicial review of the commission’s decisions to expose him. The manner in which the courts had examined his

claims had, in the circumstances, been sufficiently effective. The lack of a suspensive effect did not in itself make those claims an ineffective remedy.

As concerned the right of access to court, the Court found that the fact that the Bulgarian courts did not examine whether there had been sufficient and reliable evidence against Anchev – because it was immaterial under the 2006 statute – did not fall short of the requirement under Article 6 § 1 to examine all questions of fact and law relevant to the case before it.

To hold otherwise would be tantamount to deriving particular content for substantive domestic legal rights from Article 6 § 1, which was not permissible. Nor did the Court find that the judicial review proceedings were unfair, as Anchev’s arguments were essentially the same as those he had formulated with regard to the alleged lack of effective access to a court.

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