AS TO THE ADMISSIBILITY OF
Application no. 13885/04
by Daniela Borisova TENCHEVA-RAFAILOVA
The European Court of Human Rights (Fifth Section), sitting on 5 January 2010 as a Chamber composed of:
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 April 2004,
Having deliberated, decides as follows:
The applicant, Ms Daniela Borisova Tencheva-Rafailova, is a Bulgarian national born in 1959 and living in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In an order of 10 July 2002 the Minister of Health announced, by reference to Article 91 of the 1986 Labour Code (see Relevant domestic and practice law below), a competition for the post of director of the Emergency Medical Centre in Sofia. The order laid down the conditions which the candidates for the post had to fulfil, and the test and the interview which they had to pass. The competition announcement was published on 16 July 2002.
On 1 August 2002 the Minister appointed a commission to make a pre-selection of the candidates. On 27 September 2002, having earlier laid down the manner in which the test and the interview were to be conducted, he appointed another commission to conduct those.
The applicant applied for the post. She and four other candidates were pre-selected. The five of them took part in the test and the interview. On 14 October 2002 the applicant was informed that she had been ranked second. The candidate ranked fist was Dr G.G. The Minister then issued a decision validating the results of the competition. The applicant objected to this decision but did not receive a reply.
On 24 October 2002 the applicant lodged an application for judicial review of the Minister’s decision with the Supreme Administrative Court. She argued that Dr G.G. did not meet all the criteria laid down in the order of 10 July 2002, because he had not had two hundred hours of training in medical management.
In a decision of 3 February 2003 (опр. № 842 от 3 февруари 2003 г. по адм. д. № 10116/2002 г., ВАС, V о.) a three-member panel of the Supreme Administrative Court declared the application inadmissible. After analysing the matter in some detail, it found that the competition had not been governed by the special rules applicable to some other medical posts, but by the general provisions of the Labour Code relating to competitions. In competitions governed by the Labour Code the Minister acted in a capacity of an employer, not as an administrative authority. Therefore, his decisions relating to the competition were not administrative decisions amenable to judicial scrutiny. This applied a fortiori to the commission which had organised the competition. The applicant could challenge the manner in which the competition had been conducted by means of a civil claim: she could seek a declaration that the contractual relationship between the Minister and Dr G.G. had not come into existence because the competition had been tainted by irregularities.
One judge dissented. He disputed the conclusion that the competition had been governed by the general provisions of the Labour Code and not by special rules. However, even assuming that this had been so, in his view, by taking part in the competition the applicant had sought to exercise her right to work, recognised by the Constitution. Therefore, the refusal to appoint her to the desired post had to have a lawful basis. Such basis could be found in the fact that she had not been ranked first. However, this basis was valid only if the competition had been conducted lawfully. If it was tainted by irregularities, each candidate after the first was injured in the exercise of his labour rights, whereas those rights deserved protection from the courts. Since, in view of the former Supreme Court’s and the Supreme Court of Cassation’s case-law (see Relevant domestic law and practice below), the applicant would be unlikely to obtain such protection from the civil courts, as suggested by the majority, she was entitled to obtain it from the administrative courts, in order not to be faced with a denial of justice.
The applicant’s subsequent appeal on points of law was rejected by a five-member panel of the Supreme Administrative Court on 16 June 2003 (опр. № 5921 от 16 юни 2003 г. по адм. д. № 2431/2003 г., ВАС, петчленен с-в). The court fully agreed with the three-member panel’s reasoning, and went on to say that the dissenting judge’s view that the competition had not been governed by the Labour Code was erroneous, as was his view that the Minister’s decisions in connection with employment competitions were subject to review by the administrative courts. Those decisions did not amount to an exercise of public powers affecting the rights of others, and were therefore not administrative decisions amenable to judicial scrutiny.
On 19 June 2003 the applicant brought a civil claim against the Ministry of Health, seeking a declaration that the competition had been tainted by irregularities and that the resulting employment agreement between the Ministry of Health and Dr G.G. was unlawful. However, on 20 June 2003 the Sofia District Court discontinued the proceedings. On appeal, its decision was upheld by the Sofia City Court on 19 August 2003.
The applicant’s subsequent appeal on points of law was rejected by the Supreme Court of Cassation on 18 December 2003 (опр. № 579 от 18 декември 2003 г. по ч. гр. д. № 569/2003 г., ВКС, ІІІ г. о.). The court found that her claim did not concern an employment dispute, because such disputes were only those between the person who had come first in the competition and the employer. The remaining candidates did not have an employment relationship with the employer. The actions carried out by the employer during a competition were simply preliminary steps for the creation of an employment relationship; they could not be challenged before the courts but merely before the employer whose decision was final. The court went on to say that the applicant did not have the requisite legal interest to seek a declaration that the employment of the person who had won the competition was unlawful. Such a declaration would have no impact on her legal sphere, because she could not expect to be employed unless the person ranked first failed to take up his or her duties.
B. Relevant domestic law and practice
Section 3(2) of the 1999 Regulations on the organisation and the operations of the Emergency Medical Centre (Правилник за устройството и дейността на център за спешна медицинска помощ) issued by the Minister of Health, provides that the Centre’s director is employed on the basis of a competition conducted in line with the provisions of the Labour Code.
The manner in which employment competitions are to be conducted is governed by Articles 89 to 97 of the 1986 Labour Code.
Article 90 § 1 provides that the posts to be filled by means of a competition must be set forth in a statute or a statutory instrument, or a decision of the employer. Article 90 § 3 stipulates that those posts can be filled only by means of a competition.
Article 91 specifies the contents of the competition notice and the manner in which it should be published, as well as the rights of the candidates to get acquainted with the job description of the advertised post.
Candidates are admitted to the competition by a commission appointed by the employer (Article 93 § 1). Those who are not allowed to take part in the competition must be informed in writing about the reasons for that; they may object before the employer, who rules on the matter by means of a final decision (Article 93 § 2). Another commission then conducts the competition (Article 94), by assessing the qualities of the candidates and ranking only those who have successfully passed the tests (Article 95 § 1). They have to be notified of that within three days (Article 95 § 2). The individuals ranked first are considered as employed from the date when they receive the notice (Article 96 § 1). They then have to take up their duties within two weeks but for good reasons that time-limit may be extended to three months (Article 96 § 2). If they fail to do so, the employment relationship with them is considered as non-existent, and the individual ranked second is considered as employed (Article 96 § 4).
The former Supreme Court and the Supreme Court of Cassation have held that those who have lost employment competitions cannot challenge those competitions in the civil courts. Such disputes are not employment disputes within the meaning of the Labour Code; nor can they be examined pursuant to claims for declaratory judgment, because the persons concerned do not have the requisite legal interest to bring such claims, as they can not expect to be offered employment even if the competitions are declared unlawful (реш. № 609 от 30 юни 1992 г. по гр. д. № 307/1992 г. ВС, III г. о.; опр. № 319 от 31 май 2005 г. по гр. д. № 219/2005 г., ВКС, III г. о.).
In a line of decisions beginning in January and February 2003, the Supreme Administrative Court adopted the position, initially against the dissent of the same judge who dissented in the applicant’s case, that decisions made by public bodies in connection with employment competitions conducted by them are not administrative decisions subject to judicial review, chiefly because those bodies do not act in their capacity of administrative authorities but are placed on an equal footing vis-à-vis the persons willing to be employed by them (опр. № 590 от 27 януари 2003 г. по адм. д. № 7925/2002 г., ВАС, V о.; опр. № 841 от 3 февруари 2003 г. по адм. д. № 8388/2002 г., ВАС, V о.; опр.№ 844 от 3 февруари 2003 г. по адм. д. № 10741/2002 г., ВАС, V о.; опр. № 845 от 3 февруари 2003 г. по адм. д. № 202/2003 г., ВАС, V о.; опр. № 846 от 3 февруари 2003 г. по адм. д. № 203/2003 г., ВАС, V о.; опр. № 9870 от 4 ноември 2003 г. по адм. д. № 8293/2003 г., ВАС, V о.; опр. № 10238 от 14 ноември 2003 г. по адм. д. № 6090/2003 г., ВАС, V о.; опр. № 6853 от 16 юли 2004 г. по адм. д. № 5694/2004 г., ВАС, IV о.; опр. № 9778 от 24 ноември 2004 г. по адм. д. № 5138/2004 г., ВАС, V о.; опр. № 1650 от 15 февруари 2007 г. по адм. д. № 1249/2007 г., ВАС, V о.; опр. № 1676 от 13 февруари 2008 г. по адм. д. № 1344/2008 г., ВАС, IV о.; опр. № 5860 от 20 май 2008 г. по адм. д. № 4444/2008 г., ВАС, VII о.; опр. № 10511 от 11 септември 2009 г. по адм. д. № 11449/2009 г., ВАС, VII о.).
The applicant complains under Article 6 § 1 and Article 13 of the Convention that she was denied access to a court.
The Court considers that the applicant’s complaint falls to be examined solely under Article 6 § 1, because where the right claimed is a civil one, the requirements of Article 13 are less strict than, and are absorbed by, those of Article 6 § 1 (see, among many other authorities, Yanakiev v. Bulgaria, no. 40476/98, § 76, 10 August 2006).
Article 6 § 1 provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
A summary of the relevant principles may be found, with further references, in the Court’s decisions in the cases of Revel and Mora v. France ((dec.), no. 171/03, 15 November 2005) and of Sultana v. Malta ((dec.), no. 970/04, 11 December 2007).
The Court must first address the issue whether the claim asserted by the applicant concerned a “civil right” which could arguably be said to be recognised under Bulgarian law.
The applicant does not appear to claim to have had an unconditional right to be appointed to the post that she wished to obtain, and the Court considers that no such right existed. Indeed, the Supreme Court of Cassation specifically found, in line with its constant case-law, that the applicant could not expect to be offered employment unless the person ranked first failed to take up his or her duties, which was not the case.
It appears that the right, if any, asserted by the applicant, was the right to take part in a lawfully organised and fair employment competition.
In the recent case of Fiume v. Italy the Court was satisfied that the right to a lawful and transparent employment competition was recognised under Italian law (see Fiume v. Italy, no. 20774/05, §§ 35 and 36, 30 June 2009). However, the question whether a right exists cannot be answered in the abstract, but solely by reference to the domestic law of the country concerned, having regard to the wording of the applicable legal provisions and their interpretation by the domestic courts (see, among other authorities, Masson and van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327, and Fodor v. Germany (dec.), no. 25553/02, 11 December 2006). In this connection, the Court cannot overlook that in Fiume the Italian courts had accepted the applicant’s claims for examination and had specifically found that he could legitimately expect to obtain the post for which he had applied (see Fiume, cited above, §§ 9, 13, 15 and 34), whereas here the Bulgarian courts refused to examine both the application for judicial review and the civil claim brought by the applicant, and held that she did not have a right to be offered employment. Those rulings are a strong indication against the existence of a right arguably recognised under Bulgarian law, especially when account is taken of the fact that they were not isolated but in line with the courts’ case-law. However, even assuming that a right to a lawfully conducted employment competition may be derived from the applicable provisions of the 1986 Labour Code, the Court is not persuaded that that right can be considered as “civil” within the meaning of Article 6 § 1. In as much as those taking part in employment competitions governed by that Code cannot unconditionally expect to be offered employment, their procedural rights in relation to the conduct of those competitions have only an indirect bearing on their careers and hence on their pecuniary rights (compare with Revel and Mora, and with Sultana, both cited above, and contrast with Fiume, cited above, §§ 9 and 35 in fine).
In view of foregoing considerations, the Court is not satisfied that the claim asserted by the applicant concerned a “civil right” within the meaning of Article 6 § 1.
It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer
TENCHEVA-RAFAILOVA v. BULGARIA DECISION
TENCHEVA-RAFAILOVA v. BULGARIA DECISION