DISSENTING OPINION OF JUDGE PAMBALLIS

The question of the applicability of Article 6 § 1 in its “civil limb” is raised in this case. I agree with the majority that in order for Article 6 § 1 to be applicable, there must be a dispute as to a right recognised under domestic law. Nonetheless, I have to dissent with regard to the applicability of Article 6 § 1 in the present case, and this inevitably leads me to consider the application inadmissible.

The applicability of Article 6 § 1 – that is, the right to a fair hearing – in civil proceedings was raised recently in the case of Baka v. Hungary [1] , which concerned access to a court by a judge.

The applicant (Mr Baka), as President of the Hungarian Supreme Court, criticised proposed legislative reforms affecting the judiciary. The constitutional and legislative changes that followed resulted in the premature termination of his mandate as President. Those changes at the same time precluded the possibility of a judicial review of his dismissal. The Court held that there had been a violation of Article 6 because the applicant ’ s access to a court had been impeded by the transitional provisions of the new legislation.

At the same time, the Court in the Baka case confirmed that in cases raising a dispute concerning judges, the criteria already established in the case of Vilho Eskelinen and Others v. Finland [2] were applicable.

Those criteria are:

(a) the State ’ s national law must have expressly excluded access to a court for a relevant post or category of staff; and

(b) that exclusion must be justified on objective grounds in the State ’ s interest.

In my view, the particular circumstances of the case under consideration, as analysed in the judgment of the majority, falls outside the scope of Article 6. The conditions set out in the Vilho Eskelinen case are fulfilled and the protection enshrined in Article 6 § 1 is excluded.

The first condition, as mentioned above, is that the law must have expressly excluded access to a court.

The majority of the Court, in the present judgment, seek to establish that the fact that no review of the Supreme Council of Judicature (SCJ) ’ s decision was possible does not necessarily mean that the applicant did not have access to a court. The majority ’ s reasoning is that the disciplinary authority, the SCJ, qualified as a court for the purposes of the Eskelinen test and that access to a court was therefore not excluded.

I do not concur with this reasoning. The applicant had no access to a court, under national law, because the decisions of the SCJ are connected with the exercise of its judicial power and they cannot be challenged. Disciplinary proceedings were instituted against the applicant by the SCJ and these proceedings were of a judicial nature. They led to the applicant ’ s dismissal. The applicant did not have a right of access to a court to challenge that decision. Neither the national law nor the Constitution provide for a right of access to a court in cases concerning the dismissal of judges. On the contrary, constitutional provisions exclude judicial review in a general, abstract and foreseeable manner, by stating that the decision of the SCJ is final and binding. The case-law expressly states that the decisions of the SCJ cannot be challenged by means of a recourse under Article 146 of the Constitution [3] .

As mentioned in the Vilho Eskelinen case, the exclusionary legal provision must be of general application, whereas in the Baka case the provision was directed at a specific individual. That is why the Court, in the special circumstances of the particular case, found that the first of the Eskelinen criteria had not been satisfied.

It is my opinion that the first Eskelinen criterion was fulfilled in the present case.

The Court seeks to establish that a judge acting in his official capacity has a “right”, and the deprivation of the judge ’ s powers is considered an interference with the judge ’ s individual rights. In my view, there is no such human right to preserve those powers. A judge is a State organ and the extension of such protection would inevitably lead to the creation of a special right for judges.

The second Eskelinen criterion is that the exclusion must be justified on objective grounds in the State ’ s interest. The Court noted that in order for the exclusion to be justified, it was not enough for the State to establish that the applicant participated in the exercise of public powers, or that there was a special bond of trust and loyalty; the State had to show that that special bond had been called into question. Judges are entrusted with specific responsibilities in the administration of justice. The applicant held the office of President of the Industrial Disputes Court and exercised judicial powers. He participated directly in the exercise of powers conferred by public law and duties designed to safeguard the general interest of the State and other authorities. Public confidence in the judiciary is of paramount importance and should be preserved. The applicant ’ s misconduct has diminished this trust and confidence. Therefore, his exclusion served a legitimate purpose and was justifiable.

[1] [GC], no. 20261/12, ECHR 2016.

[2] [GC], no. 63235/00, ECHR 2007.

[3] Kourris and the SCJ ((1972) 3 C.L.R. 390) and Karatsis v. 1. The Republic of Cyprus, through the Supreme Council of Judicature, 2. The SCJ ((2001) 3 C.L.R. 220).