Published on 19 September 2022

THIRD SECTION

Application no. 49918/20 Eloy VELASCO NUÑEZ against Spain lodged on 4 November 2020 communicated on 31 August 2022

SUBJECT MATTER OF THE CASE

On 19 July 2013 the Supreme Court, following contentious-administrative proceedings, annulled the results of State specialisation examinations for judges held in 2011.

In 2017, following a call for applications, the applicant, who had passed his specialisation examination in 1990, the results of which had not been annulled, was appointed a judge at the Criminal Appeal Chamber of the Audiencia Nacional on the basis of his qualifications and experience.

Unsuccessful applicants for the position who had taken the specialisation examination in 2011 brought contentious-administrative proceedings against the General Council of the Judiciary (CGPJ) challenging the applicant’s appointment. They argued, in particular, that the appointment to the Criminal Appeal Chamber should have been made based on the results of the specialisation examination and seniority. The applicant was summoned to and appeared before the Supreme Court as a co-defendant. While rejecting most of the arguments of the plaintiffs, on 3 April 2019 the Supreme Court upheld the claim related to the results of the specialisation examination. Considering that the plaintiffs’ specialisation results should have been taken into account, the Supreme Court ordered that the applicant be dismissed from the position and that the CGPJ designate other judges, who had more seniority in the service, to the Criminal Appeal Chamber.

The applicant filed a motion for annulment of the Supreme Court’s judgment, arguing a violation of Articles 23 (right to equal access to public functions and positions) and 24 (right to a fair trial) of the Constitution. The motion was rejected by a decision of 24 May 2019. His amparo appeal before the Constitutional Court was eventually declared inadmissible on 15 June 2020, on the grounds that the applicant had failed to duly justify the constitutional relevance of the complaints raised.

The applicant complains that the judgment of the Supreme Court of 3 April 2019 upset legal uncertainty, its outcome being unforeseeable in view of that Court’s judgment of 19 July 2013.

QUESTION TO THE PARTIES

Did the Supreme Court give the applicant a fair hearing, as required by Article 6 § 1 of the Convention, in view of its decision of 3 April 2019 to dismiss him from his position? In particular, did it upset the principle of legal certainty, which is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 46, 20 October 2011, and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 238, 1 December 2020), when recognising the examination results that it had annulled on 19 July 2013? Did it explain the reasons for changing its previously adopted position (see, mutatis mutandis , Ştefan et Ştef v. Romania , nos. 24428/03 and 26977/03, § 35, 27 January 2009)?