issued by the Registrar of the Court

ECHR 277 (2023)

10.10.2023

A judge’s suspension must be accompanied by the procedural safeguards laid

down in the Convention and by safeguards against abuse

In today’s Chamber judgment¹in the case of Pengezov v. Bulgaria (application no. 66292/14) the

European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 (right to a fair hearing) of the European Convention on Human Rights as

concerned the insufficient extent of the judicial review carried out by the Supreme Administrative

Court,

no violation of Article 6 (right to a fair hearing) of the Convention as concerned the independence

and impartiality of the Supreme Administrative Court, and

a violation of Article 8 (right to respect for private life).

The case concerned a judge’s temporary suspension from his duties on account of his indictment for

irregularities allegedly committed in the performance of his former duties.

The Court noted that following the applicant’s prosecution, he had been suspended from his duties

as a judge, indefinitely and without pay, by a decision of the Supreme Judicial Council that had not

been accompanied by adequate procedural safeguards. In that connection, it found that the scope of

the Supreme Administrative Court’s judicial review had not been sufficient.

Having regard to the length of the criminal proceedings (seven years) and to the absence of legal

remedies for requesting that the suspension (which had lasted two and a half years) be lifted, the

Court found that the applicant had been left in a state of uncertainty as to the duration of his

suspension. Such a situation had also carried an inherent risk for the accused judge’s independence,

which the Court had to take into account as well. Accordingly, the Court found that the applicant’s

suspension from his duties had not been accompanied by adequate safeguards against abuse and

had not been justified on relevant and sufficient grounds; it had therefore not been proportionate to

the legitimate aim pursued (namely, guaranteeing the integrity of the judiciary and maintaining

public confidence in the court system).

A legal summary of this case will be available in the Court’s database HUDOC (link)

Principal facts

The applicant, Veselin Pengezov, is a Bulgarian national who was born in 1959 and lives in Sofia

(Bulgaria). Mr Pengezov is a judge at the Sofia Court of Appeal, of which he was President

(administrative manager) between 2009 and 2014. Between 2004 and 2009 he had been President

of the Sofia Military Court of Appeal.

In 2011 the Public Financial Inspection Agency imposed an administrative fine on Mr Pengezov for a

breach of public procurement laws, accusing him of having awarded the public procurement

contract for the Military Court of Appeal’s IT system on the basis of private agreements when the

situation required a competitive bidding procedure. Subsequently, Mr Pengezov lodged appeals

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

against the decisions taken in that regard and succeeded in having them set aside in 2012, on the

grounds that the offences were time-barred.

In 2014 Mr Pengezov’s term of office as President of the Sofia Court of Appeal expired and the office

was declared vacant. He reapplied. Several days later the Military Appellate Prosecutor’s Office

brought several charges against him in connection with the public procurement process mentioned

above (the criminal investigation into those events had been pending since 2010). According to the

indictment, the acts of which Mr Pengezov was accused had allegedly been committed between

2008 and 2009, when he had been President of the Military Court of Appeal, and then in collusion

with the new president of that court. The Chief Prosecutor asked the Supreme Judicial Council (“the

SJC”) to suspend Mr Pengezov from his duties for the duration of the criminal proceedings.

The following month, the SJC deliberated over that proposal, and in particular over the question

whether the offence with which the applicant had been charged was related to the exercise of his

judicial duties, in which case he should automatically be suspended (subsection 1 of section 230 of

the Judiciary Act) or whether it was unrelated to those duties, in which case the SJC was free to

decide whether or not to suspend him (subsection 2 of section 230). After a vote, the SJC considered

that subsection 2 of section 230 was applicable and ordered Mr Pengezov’s temporary suspension.

Subsequently, Mr Pengezov lodged an application for judicial review with the Supreme

Administrative Court and also requested an interim stay of execution of his suspension, which was

rejected.

A few days later, the SJC rejected Mr Pengezov as the sole candidate for the office of President of

the Sofia Court of Appeal.

In 2015 the Supreme Administrative Court delivered a judgment in the proceedings in relation to the

applicant’s suspension from his duties, finding that the SJC had not overstepped its discretion in

considering that a suspension was appropriate, given the nature of the offences of which

Mr Pengezov had been accused. The applicant lodged an appeal on points of law, which was

dismissed in 2016.

Subsequently, following a 2016 amendment to the Judiciary Act that eliminated the option provided

for in section 230 of suspending judges for offences unrelated to their judicial duties, Mr Pengezov

requested his reinstatement. The SJC granted his request, finding that the applicant’s suspension no

longer had a basis in law as a result of the legislative amendment. The applicant was reinstated as a

judge on 29 November 2016.

In 2020 the Sofia Court of Appeal acquitted Mr Pengezov of all charges against him. Following that

decision, the applicant sought “retroactive” reinstatement for the period from 2014 to 2016, but his

request was denied. In addition, he sought the payment of salary withheld during his suspension.

The SJC granted that request.

In 2022 Mr Pengezov lodged an action under the State Liability Act seeking compensation for the

damage sustained on account of his wrongful prosecution. According to the evidence in the file, that

case is still pending.

Complaints, procedure and composition of the Court

Relying on Article 6 (right to a fair hearing), Mr Pengezov complained about the proceedings in

relation to his suspension. He submitted, in particular, that the scope of the Supreme Administrative

Court’s review of the SJC’s decisions to suspend him had not been sufficient. He further complained

of the Supreme Administrative Court’s lack of independence and impartiality.

Relying on Article 8 (right to respect for private life), he submitted that his suspension from his

duties had been in breach of that provision and that no effective remedy had been available to him

within the meaning of Article 13 of the Convention.

The application was lodged with the European Court of Human Rights on 15 September 2014.

Judgment was given by a Chamber of seven judges, composed as follows:

Pere Pastor Vilanova (Andorra), President,

Yonko Grozev (Bulgaria),

Georgios A. Serghides (Cyprus),

Darian Pavli (Albania),

Peeter Roosma (Estonia),

Ioannis Ktistakis (Greece),

Oddný Mjöll Arnardóttir (Iceland),

and also Milan Blaško, Section Registrar.

Decision of the Court

Article 6 (proceedings concerning the applicant’s suspension)

The Court pointed out that the case concerned the temporary suspension of a judge, which was a

decision that could potentially have grave consequences for the life and career of the person

concerned. It found that on account of his prosecution, the applicant had been suspended from his

duties as a judge, indefinitely and without pay, by a decision of the SJC that had not been

accompanied by adequate procedural safeguards and that had only given brief reasons as to the

necessity of such a measure; moreover, a judge’s indictment by a prosecutor was not subject to

independent judicial review. It also found that, in the appeal proceedings, the Supreme

Administrative Court’s review of the SJC’s decision had been limited; that it had not undertaken its

own examination of the facts; and that it had refused to review the justification for the indictment.

In the Court’s view, although none of these facts – the absence of procedural safeguards and proper

reasons for the SJC’s decision, the limited review carried out by the Supreme Administrative Court

and the absence of judicial review of the indictment – could, on its own, result in a finding of a

violation of Article 6 of the Convention, their cumulative effect appeared problematic in the

particular circumstances of the case, regard being had to the impugned measure, which concerned

the applicant’s suspension from his duties as a judge. It therefore concluded that, although it had

examined the requirements for the lawfulness of the SJC’s decision in formal terms, the scope of the

Supreme Administrative Court’s review had not been sufficient with regard to the purpose of the

impugned decision and the arguments raised by the applicant. There had therefore been a violation

of Article 6 § 1 of the Convention in that regard.

Article 6 (independence and impartiality of the Supreme Administrative Court)

Referring to its judgment in Donev v. Bulgaria², the Court did not consider that the SJC’s disciplinary,

budgetary and administrative powers warranted the conclusion that the judges of the Supreme

Administrative Court lacked independence and impartiality, regard being had to the institutional

safeguards provided for by domestic law, the absence of serious structural deficiencies in the

composition of the SJC and the absence of material evidence pointing to bias on the part of the

judges who had sat in the present case. Moreover, since the applicant had not called into question

the personal impartiality of the judges who had heard his case, the Court considered that his

²Donev v. Bulgaria, no. 72437/11, 26 October 2021.

concerns as to the independence and impartiality of the Supreme Administrative Court could not be

held to be objectively justified. It therefore found that there had been no violation of Article 6 § 1

of the Convention in that regard.

Article 8 (right to respect for private life)

Given the nature and duration of the applicant’s suspension, as well as its negative impact on

various aspects of his private life, the Court considered that the requisite threshold of severity for

Article 8 of the Convention to come into play had been attained.

It further found that the applicant’s suspension had constituted an interference with his right to

respect for his private life, noting that it had had a legal basis (section 230 of the Judiciary Act) and

had aimed to guarantee the integrity of the judiciary and to maintain public confidence in the court

system.

As to whether the measure had been necessary in a democratic society, the Court pointed out that it

had already found, under Article 6 of the Convention, that the applicant had not been afforded any

procedural safeguards at the stage where the SJC had taken its decision and that the scope of the

Supreme Administrative Court’s review had not been sufficient.

It observed, moreover, that the disputed measure had had serious repercussions on the applicant’s

private and professional life. The applicant’s suspension had lasted two and a half years, during

which he had been deprived of his salary and had been unable to engage in other professional

activities owing to disqualifications relating to the office of judge; at the time of his suspension,

domestic law had not provided for any time-limit on such a measure or any means of challenging its

continued justification before an independent authority; the continuation of the criminal

proceedings – which had lasted some seven years, until the applicant’s acquittal – had constituted a

sufficient condition for maintaining his suspension.

Having regard to the length of the criminal proceedings (close to seven years) and to the absence of

legal remedies for requesting that the suspension (which had lasted two and a half years) be lifted,

the applicant had thus been left in a state of uncertainty as to the duration of his suspension. Such a

situation had also carried an inherent risk for the accused judge’s independence, which the Court

had to take into account as well.

Consequently, the Court took the view that the applicant’s suspension from his duties had not been

accompanied by adequate safeguards against abuse and had not been justified on relevant and

sufficient grounds. Accordingly, and despite the margin of appreciation enjoyed by the domestic

authorities in that sphere, the Court considered that the measure imposed on the applicant had not

been proportionate to the legitimate aim pursued. There had therefore been a violation of Article 8

of the Convention.

Just satisfaction (Article 41)

The Court held that Bulgaria was to pay the applicant 4,500 euros (EUR) in respect of non-pecuniary

damage and EUR 1,626.19 in respect of costs and expenses.

Separate opinion

Judge Arnardóttir, joined by Judge Pavli, expressed a concurring opinion.

The judgment is available only in French.

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