Court appeals




Press release: The Supreme Administrative Court obliged the Minister of Interior to respond to an information request by Ivan Yonchev - colonel of the reserve - to access his personal file

On July 30, 2004 the Fifth division of the Supreme Administrative Court issued Decision 7146 on administrative court case 2568/2004. The court confirmed the first instance decision, by which the Sofia City Court had declared null and void the refusal of the Head of Human Resources to provide access to personal data of the colonel of the reserve, Ivan Yonchev. Thus, the file was referred back to the Minister of Interior for reconsideration.

In practice this continued the procedural games, comparable to a Greek Olympic gymnastic competition, which impeded the colonel from exercising his constitutional right of access to his own personal data collected as an officer - a right also guaranteed and arranged by the Personal Data Protection Act.

The story began on September 1, 2001 when the loyal officer appeared on a test in the Institute of Psychology of the Ministry of Interior in relation to his departure as a police observer of the UN mission in Kosovo. These tests for selection and re-selection are taken regularly by officials working in the system of the Ministry of Interior. They can be only taken at the Institute of Psychology, which turns it into the last and only institution, which determines whether a person is psychologically healthy. In the middle of September, Mr. Yonchev learned that the result of his test was negative. His attempts to receive access to the results of the psychological expertise turned out to be unsuccessful and he received only the conclusions.

The biography of the colonel in reserve until that moment had been impressive. He had served in UN observer missions in Cambodia, Angola, Bosnia, former Yugoslavia, and Kosovo. During his last mission he had spent thirteen months in Kosovska Mitrovica and due to his impressive results he had been promoted to a colonel by the Director of the National Police Department. Mr. Yonchev had also been assigned chief inspector of the police observers in the region. The collonel served the remaining eleven months in the "High-risk escort" group within the Special operation section of the International police headquarters in Pristina.

Clearly enough, a man of such character was worried by and could not agree with the vague conclusion of the psychologists: ... exhaustion of all psychological resources and lowered abilities to cope with continuous hardship and stress . Yonchev turned consecutively to the Agency for psychological recruitment of personnel and human resources "Nikanor" and to the leading Bulgarian company in the area of psychological studies "Diaconsult", managed by formed experts of the Institute of Psychology.

The results of both examinations were opposite to the initial one. In the meantime, knowing that the internal rules of the MI would allow him to retake the test after one year, he continued to improve his English and other qualities necessary for a special operation officer. By October 2002, when he was allowed to retake the psychological test, he had managed to complete orienteering instructor cources, trained alpinism, shooting at the Ministry of Interior Center for battle training and athletics, to pass a basic skin-diving course, a pyrotechnical exam, thus acquiring an "Explosive license", and to perform forty one parachute jumps, making them a total of ninety one in his career. A week after retaking the test he took and passed an English exam, drivers and shooting tests before a UN commission, and then traveled to Zuerich, where he completed a specialized course on guarding high-ranked officials at the Israeli International security school. When he returned to Bulgaria however, he learned that the results from his psychological test were yet again negative. Like before, all his attempts to receive the examination results and the new expertize were unsuccessful.

This is how faith brought the colonel of the reserve - already retired after the two negative test results - to the office of Access to Information Programme (AIP). Assisted by the legal team of AIP, on February 12, 2003 Ivan Yonchev filed a written request under the Personal Data Protection Act to the Ministry of Interior. The colonel wished to obtain access not only to the test results, but also to his entire personal file.

In response he received a written refusal, signed by the Head of Human Resources and grounded by the provision of Art. 1 para. 4, giving an opportunity for data controllers to abide to special regulations when processing and disclosing personal data collected for certain purposes. Applicable in this case was an unpublished guidelines of the Minster of Interior from 1996, according to which the personal files of all acting and retired officials are highly confidential and restricted from public access.

With the assistance of AIP the refusal was appealed; we adduced a bunch of arguments, some of which were that:
- every person has the right to access all personal data related to him under art. 26 para 1 of the PDPA;
- the guidelines of the Minister could not be considered special laws in the sense of art.1 para. 4 of the PDPA, because it had not been promulgated and thus was not normative under the law.
- information can only be classified as "highly confidential" and constitute state secret under the provisdions of the Protection of Classified Information Act (PCIA). The list of items subject to classification under Art. 25 of PCIA does not include the personal files of Ministry of Interior officials.

On March 16, 2003, as we were awaiting a decision for the appointment of the first court hearing on the case, the Minister of Health promulgated Regulation 6 for the sites of specialized medical and psychological examinations and the places of periodic health check-ups. The entire Section III of the Regulation describes the procedures for conducting medical and psychological check-ups of officials working for the security services, public order services and other units of the Ministry of Defense, Ministry of interior, Ministry of Justice, and Ministry of Transportation. Under the provision of Art. 16 para. 6 of the Regulation, access to documents related to check-up is granted to the medical staff, which conducted the examination, the examined person, and authorized officials from the institution, which requested it. There is no doubt that the Regulation is applicable in this case, because it refers to specialized institutions for psychological diagnostics of the listed ministries, which undoubtedly includes the Institute of Psychology of the Ministry of Interior.

In relation to the claims of confidentiality of personal files by the Ministry of Interior, the final provisions of Regulation 6 are of special interest. They state that the Regulation is adopted in line with the PCIA and is co-ordinated with the State Commission of Information Security.

Probably having realized that - after being reviewed on merits - the refusal would be declared null and void, the Ministry of interior used a procedural trick, leading only to a prolongation of the court proceedings. In a court hearing the representative of the ministry asked the court to cease the proceedings and not to review the appeal, because the refusal was not a normative act, since it had been signed by the Head of Human Resources, who was not a personal data controller according to PDPA. Of course, the MI lawyer did not explain why the request had been signed by the Head of Human Resources, when they knew the minister was the only authorized person to respond.

So, in September, seven months after the personal data request, the Sofia City Court declared the refusal of the Head of Human Resources null and void and returned the file to the minister for reconsideration. The motives of the court were that even before the Minister of Interior was explicitly defined as a personal data controller by the amendments of the Ministry of Interior Act (MIA), he acted as such under the Rules for the implementation of MIA, because the procedure for keeping and processing personal files had been determined by him. The lawfulness of the refusal was not reviewed by the court.

Instead of deciding on the request, the minister filed a cassation appeal against the judgment of the Sofia City Court before the Supreme Administrative Court, which led to a further delay of eight months. As a result, the SAC confirmed the first-instance decision, declaring the refusal null and void and obliged the minister to reconsider the request of Ivan Yonchev.

In 2003 in the middle of his judicial saga, one of the most prepared Bulgarian rangers, Ivan Yonchev, became a member of the International Bodyguard Association (IBA), Unfortunately, neither this fact, not his impressive biography prevented our institutions from delivering another blow. After a five-month struggle, he was not allowed to join the Bulgarian armed forces in Kerbala, since the recruitment committee of the Ministry of Interior did not approve him. Despite that, Ivan Yonchev is currently in Iraq, recruited by the United States as a security consultant of an american bodyguard company. His struggle with the Ministry of Interior for obtaining access to his personal file and the results of the two psychological tests in particular will come to an end only in case the minister decides to abide to the law and disclose the requested information. Otherwise, the colonel of the reserve will embark on yet another litigation campaign.

English Version • Last Update: 25.09.2004• © 1999 Copyright by Interia & AIP