AS TO THE ADMISSIBILITY OF
Application no. 41978/98
by Valentin Vasilev BOZHILOV
The European Court of Human Rights (First Section), sitting on 22 November 2001 as a Chamber composed of
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr E. Levits,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 18 April 1998 and registered on 30 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
The applicant, Mr Valentin Vasilev Bozhilov, is a Bulgarian national born in 1941 and living in Sofia.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
The applicant was a member of the Communist Party until February 1990. From March until August 1990 he was a member of the Socialist Party. He has not been a member of a political party since 1 September 1990. In 1995, on the proposal of a Socialist member of Parliament, the applicant was appointed Senior Advisor to the Parliamentary Foreign Policy Committee.
On 14 March 1996 the Bulgarian Government nominated the applicant for the post of Director of the Permanent Secretariat of the Black Sea Economic Co-operation (BSEC), an intergovernmental organisation.
On 25 October 1996 by a decision of the Meeting of Ministers of Foreign Affairs of the BSEC countries the applicant was appointed Director of the Secretariat as of 1 May 1997. The applicant has not submitted further details such as whether an employment contract was signed, or not.
In February 1997 there was a change of Government in Bulgaria.
In March 1997 the applicant attended a meeting of a drafting group of the BSEC in Istanbul. In the minutes he was referred to as Director-elect, appointed as of 1 May 1997.
On 21 April 1997 the Bulgarian Council of Ministers accepted the proposal of the Minister of Foreign Affairs to “withdraw” the applicant’s nomination on the ground that “the nomination of Mr Valentin Bozhilov, approved by the previous Government, [was] not in conformity with the tasks of the new Government”.
The Council of Ministers nominated another person for the post of Director of the BSEC Permanent Secretariat. On 30 April 1997 that person was appointed to the post of Director by a decision of the Meeting of Ministers of Foreign Affairs of the BSEC countries.
On an unspecified date the applicant lodged an appeal with the Supreme Administrative Court against the Council of Ministers’ decision of 21 April 1997. The court held a hearing. On 22 December 1997 the applicant’s appeal was declared inadmissible.
The court held that the impugned Government decision did not constitute an administrative act within the meaning of Article 120 of the Constitution and that, therefore, it was not subject to a judicial appeal. The Council of Ministers had exercised their power set out in Article 105 of the Constitution to conduct Bulgaria’s foreign policy. The applicant’s appeal concerned solely the withdrawal of the mandate given to him by the Council of Ministers to represent the country in the BSEC, which did not entail any administrative or civil consequences for him.
B. Relevant law
Article 120 § 2 of the Constitution provides that a judicial appeal lies against any administrative decision except expressly excluded by law.
The Black Sea Economic Co-operation (BSEC) is an intergovernmental organisation founded by the following participating States: Albania, Armenia, Azerbaijan, Bulgaria, Georgia, Greece, Moldova, Romania, the Russian Federation, Turkey and Ukraine. It was created on 25 June 1992 and has its headquarters in Istanbul, Turkey.
The applicant has not provided detailed information on the organisation’s structure and governing bodies at the relevant time (its Charter came into force only on 1 May 1999, after the period under consideration in the present case).
The applicant submitted excerpts from the “Regulations for the Staff of the Permanent International Secretariat of the BSEC”, apparently in force at the relevant time. Under the Regulations the Director was appointed by the Meeting of Ministers of Foreign Affairs of the BSEC participating States among the nominees proposed by those States. All nominations, accompanied by the candidates’ CV/resumes and other relevant information, had to be notified to the participating States. The Director was appointed in accordance with the rule of rotation. “Geographical distribution and equitable representation [were] also taken into account.”
The duties of the Director were, inter alia, to represent the BSEC International Secretariat in the host country and to supervise the management and the fiscal resources of the Secretariat.
1. The applicant complains, invoking Articles 9, 10, 11, and 14 of the Convention, that he was a victim of a politically motivated dismissal by the Bulgarian authorities and was discriminated against on the basis of his political views.
He submits that all governments of the UDF, a political party, have conducted a discriminatory policy against former members of the Communist party or persons associated with the Bulgarian Socialist Party. Having made his political beliefs known by accepting in 1995 the post of a Senior Adviser of the Parliamentary Foreign Policy Committee in a Parliament dominated by the Socialist Party, the applicant was allegedly the victim of repression after the change of government in 1997.
2. The applicant complains under Article 6 § 1 of the Convention that he was deprived of his right to access to court.
He submits that there was a dispute about his right to remain the nominee for the post of Director of the BSEC’s Permanent Secretariat and, after having been appointed to that post on 25 October 1996, to take up his duties on 1 May 1997. That was a dispute about civil rights. Therefore, the Supreme Administrative Court wrongly refused to examine his case on the merits. He did not have any other opportunity to obtain access to court.
The applicant also complains under Article 6 that the proceedings before the Supreme Administrative Court were unfair. In particular, the minutes of the court’s hearing were inaccurate and incomplete and the court was partial as it wrongly stated in its decision that the applicant had been nominated “as a representative” of Bulgaria in the BSEC. Furthermore, the order terminating the proceedings was not delivered in public.
3. The applicant also complains under Article 13 of the Convention that he did not have an effective remedy against the violations of his rights.
1. Alleged dismissal and discrimination on the basis of political affiliation.
The applicant complains invoking Articles 9, 10, 11 and 14 of the Convention that he was the victim of a politically motivated dismissal by the Bulgarian authorities and was discriminated against on the basis of his political views.
The Court recalls that the right of recruitment to the civil service was deliberately omitted from the Convention. Consequently, the refusal to appoint a person as a civil servant does not as such raise an issue under the Convention.
It must therefore be determined whether the disputed measure amounted to an interference with the exercise of freedom of expression or association - in the form of a “formality, condition, restriction or penalty” - or whether it lay within the sphere of the right of access to the civil service, a right not secured in the Convention. In order to answer this question, the scope of the measure must be determined by putting it in the context of the facts of the case and of the relevant legislation (see the Glasenapp v. Germany judgment of 28 August 1986, Series A no. 104, p. 26, § 49, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 22-23, § 43, and Wille v. Liechtenstein [GC], no. 28396/95, § 41, 28 October 1999, unreported).
In the present case the impugned act is the decision of the Bulgarian authorities to withdraw the applicant’s nomination as a candidate for the post of Director in an international organisation.
The measure complained of thus concerned directly access to service in an international organisation, a sphere which is too remote from the area of protection afforded by the Convention.
Furthermore, the applicable BSEC rules concerning the appointment of its Permanent Secretariat’s Director required that the candidate must be nominated by one of the participating States, on the basis of rotation. It was clear that the choice of those States in general, and the decision of the Bulgarian Government not to maintain their support for the applicant’s nomination in particular, was within their discretionary powers. In these circumstances the Government’s decision, which was based on an overall assessment that the applicant’s appointment was “not in conformity with the tasks of the new Government” cannot be seen as an interference with his rights under Articles 9, 10 or 11 of the Convention or as discriminatory in breach of Article 14 in conjunction with any of those provisions.
It follows that the above complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
2. Alleged lack of access to court and unfairness of proceedings
The applicant complains under Article 6 § 1 of the Convention that the Supreme Administrative Court’s refusal to examine his case on the merits infringed his right of access to court. He further complains that the proceedings were unfair and, generally, that he did not have any access to a court in respect of his grievances.
Article 6 § 1 of the Convention, as far as relevant, provides as follows:
“In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”
The Court must examine whether Article 6 § 1 of the Convention was applicable to the proceedings before the Supreme Administrative Court. Insofar as the applicant complains generally of lack of access to court it must ascertain whether the events complained of as a whole amounted to an infringement of his right to court as embodied in Article 6 § 1 of the Convention.
a) Whether the dispute for which the applicant sought access to the Supreme Administrative Court concerned his civil rights and obligations, within the meaning of Article 6 § 1 of the Convention
The applicant sought access to the Bulgarian courts to challenge the decision of the Council of Ministers withdrawing his nomination as a candidate for a post in an international organisation.
The Court reiterates that, according to its well-established case-law, the right to a court under Article 6 § 1 of the Convention extends only to “disputes” (“contestations” in the French text) over “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for (civil) “rights and obligations” in the substantive law of the contracting states. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see the following judgments: Le Compte, Van Leuven and De Meyere v. Belgium of 23 June 1981, Series A no. 43, pp. 21-22, § 47, Fayed v. the United Kingdom of 21 September 1994, Series A no. 294-B, pp. 45-46, § 56, Masson and van Zon v. the Netherlands, 28 September 1995, Series A no 327-A, p. 17, § 44, Balmer-Schafroth and Others v. Switzerland, 26 August 1997, Reports 1997-IV, p. 1357, § 32, Le Calvez v. France, 29 July 1998, Reports 1998-V, p. 1899, § 56, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, 6 April 2000, unreported, § 43, Mennitto v. Italy [GC] no. 33804/96, 5 October 2000, unreported, §§ 23-27).
In the examination of the question whether a “right” was at stake the Court relies on analysis of domestic law and practice. A relevant issue is whether the contested decision was delivered in the exercise of discretionary powers or affected a clear entitlement arising out of the fulfilment of particular conditions set out by law (see, inter alia, the H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, §§ 37-44).
The Court notes that the impugned decision of the Council of Ministers fell within its discretionary powers as the Bulgarian authorities enjoyed full discretion in their choice of a nominee. The applicant has not shown that he could claim any “right” under Bulgarian law to be nominated by the Bulgarian authorities as a candidate to a post in an international organisation.
He states, however, that when they withdrew his nomination in April 1997, the Bulgarian Government in effect deprived him of an already acquired right , his right to take up on 1 May 1997 his duties as Director in the BSEC. That was a post to which he had been elected on 25 October 1996 by the Meeting of Ministers of Foreign Affairs of the BSEC countries.
The Court considers that regardless of the applicant’s legal position vis-à-vis the BSEC after his appointment on 25 October 1996, he could not claim against the Bulgarian authorities a “right”, in the sense of Article 6 of the Convention, to have their continued support for his nomination. Even assuming that the withdrawal of that nomination might have had repercussions on employment rights and obligations in the relations between the applicant and the BSEC, his dispute with the Bulgarian authorities concerning the withdrawal as such cannot be seen as a dispute over a right.
It follows that the proceedings the applicant sought to institute before the Bulgarian courts were not decisive for the determination of a “right”, within the meaning of Article 6 of the Convention. That provision was thus not applicable.
The applicant’s complaints that the Supreme Administrative Court deprived him of his right of access to court and that the proceedings before it were unfair are incompatible ratione materiae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
b) Whether the events complained of examined as a whole amounted to an infringement of the applicant’s right to access to court
The applicant has centred his complaints on the Council of Ministers’ decision of 21 April 1997. The Court notes, however, that he may also be understood as complaining, more generally, that he did not have access to a judicial body in the determination of the dispute whether he had been unlawfully removed from a post in an international organisation. The applicant stated, inter alia, that after 25 October 1996 he was already a party to an employment contract governed by international law and that he could not obtain access to court in respect of his grievance that he was unlawfully removed from his post.
The Court observes that the applicant’s only attempt to obtain a judicial decision was directed against the Bulgarian Council of Ministers and not against the BSEC or any of its organs. However, the applicant could only claim rights under his alleged employment as Director by challenging acts and decisions of the BSEC. He has not done so.
Furthermore, he has not alleged that there were legal obstacles to him bringing an action against the BSEC, an organisation based in Istanbul, or that the responsibility of the Bulgarian authorities could be engaged in respect of any such impediment if it existed (distinguish Beer and Regan v. Germany [GC], no. 28934/95, § 57, 18 February 1999, unreported).
It follows that the applicant’s complaint that the events complained of amounted to a violation of his right to access to court, insofar as it may fall within the competence of the Court ratione personae and materiae, is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected.
3. Alleged lack of effective remedies
As regards the applicant’s complaint under Article 13 of the Convention that he did not have an effective remedy against the alleged violations of his Convention rights, the Court finds, on the basis of all material before it, that he did not have an arguable claim against Bulgaria for any such violation and that therefore Article 13 was not applicable.
The remainder of the application is thus incompatible ratione materiae with the provisions of the Convention and must be rejected under its Article 35 § 3.
For these reasons, the Court unanimously
Declares the application inadmissible.
Erik Fribergh Christos Rozakis
BOZHILOV v. BULGARIA DECISION
BOZHILOV v. BULGARIA DECISION