Legal summary

June 2023

Lorenzo Bragado and Others v. Spain - 53193/21, 53707/21, 53848/21 et al.

Judgment 22.6.2023 [Section V]

Article 6

Constitutional proceedings

Article 6-1

Access to court

Civil rights and obligations

Dismissal of amparo appeal, as out of time and without examining merits, against Parliament’s failure to pursue appointment process of a new General Council of the Judiciary, by magistrates on final candidate list: violation

Facts – The six applicants, all serving magistrates, were included in the final list of candidates to be considered for the renewal of the composition of the General Council of the Judiciary (GCJ), the governing body of the Spanish judiciary, whose mandate was expiring in December 2018. The GCJ’s twelve-member composition had to be fully renewed every five years by Parliament. The appointments to the GCJ have not yet been carried out and the matter has not been put for a Plenary vote, despite the explicit requirements of domestic law.

In October 2020 the applicants lodged an amparo appeal before the Constitutional Court alleging a continuous and continuing omission or inaction on the part of Parliament and its organs, to take specific actions required by law with a view to pursuing the selection process vis-à-vis their position as candidates to be considered for appointment to the GCJ. Their appeal was declared inadmissible as having been lodged outside the statutory three-month time-limit under section 42 of Institutional Law no. 2/1979.

Law –

(1) Applicability of Article 6 – The relevant general principles had been recently summarised in Grzęda v. Poland [GC].

(a) Existence of a “right” – Before the Constitutional Court the applicants had claimed a right to a lawful procedure in the timely examination of their admissible candidacies for access to public office - specifically, a right to have an outcome to proceedings relating to their candidacies having been adversely affected by (what they argued to have been) a manifestly prolonged, continuing and prima facie unlawful and unjustified non‑pursuance of the mandatory selection process. Their claim did not concern the voting or its results, but rather a preceding part of the parliamentary procedure. As the Constitutional Court had taken no stance on the merits of their claims, including as to the existence or scope of the “right” under Spanish law whose protection had been sought. It had rejected the amparo appeal solely as having been lodged belatedly, and not because of the non-existence or irrelevance of the right.

According to the domestic legal procedure, the examination of the applicants’ candidacies had been predicated on the mandatory and specific course of action of the Parliament within a specific timeframe: namely, the convening of a plenary session to examine the matter of the GCJ membership. To continue to satisfy the eligibility requirements for their candidacies, the applicants had had, at least, to be serving in an active judicial capacity throughout the selection process. However, that selection procedure had remained pending before Parliament, at the initial stage, over three consecutive legislature terms between December 2018 and October 2020, when the applicants had complained to the Constitutional Court. The applicants had remained, for a manifestly prolonged period, in a state of uncertainty. Considering the wording of the relevant provisions and the content of the applicants’ Constitutional Court claim, their arguments had been sufficiently tenable, and their right to have their candidacies examined could be said, at least on arguable grounds, to be recognised under domestic law.

The applicants’ claim had been based on the alleged violation of the legally established procedure applicable to the parliamentary stage of the selection process. The alleged breach of their right of access to public office, under Section 573 of Law no. 6/1985 (right for any judge or magistrate in active service in the judicial career to present his or her candidacy to be elected a judicial member of the GCJ), could arguably constitute a violation of the “requirements determined by law” within the meaning of Article 23 § 2 of the Constitution (right of access on equal terms to public functions and positions, in accordance with the requirements determined by law).

Furthermore, section 42 of Law no. 2/1979 had provided for the possibility of lodging an amparo appeal with the Constitutional Court vis à-vis Parliament or its organs, seeking the protection of individual constitutional rights. Given the circumstances of the case, the applicants’ amparo appeal had appeared to be the/an appropriate remedy. The “right” asserted by them, on at least arguable grounds, had been accompanied by a further, procedural, right to have it enforced through a national court.

In the context, it could not be said that the dispute had not been genuine and serious merely because the amparo appeal had been rejected on a procedural ground. The case had been based on factual and legal elements, which had not been manifestly without any prospect of success, frivolous or otherwise clearly unmeritorious. It raised prima facie complex legal issues, including issues regarding the interpretation and application of the statutory time-limit.

Lastly, the proceedings had been “directly decisive” for the applicants’ rights, within the meaning of the Court’s case-law. Had the case been examined on the merits and ended in a favourable outcome, this could have resulted in the acknowledgment of the violation of their rights and/or in their candidacies being finally considered in the parliamentary procedure. Given the circumstances of the case it had not been established that the mere fact that the proceedings had concerned inaction or a failure to act necessarily prevented the amparo remedy from being directly decisive for the right sought to be protected.

Accordingly, in the circumstances of the case the applicants had a “right”, which had been recognised under national law at least on arguable grounds, to participate in a procedure for membership of the GCJ and to have their candidacies examined by Parliament in a timely manner according to domestic law.

(b) “Civil” nature of the right –

(i) Alleged “political” nature of the right – The applicants’ claim before the Constitutional Court had concerned their candidacies as serving magistrates in a procedure for membership of the GCJ. Such membership by no means had implied any “political obligations” or the exercise of any “political rights”. Nor was it classified as a “political office”. One of the key manifestations of the GCJ’s contribution to the governance of the judiciary and safeguarding judicial independence was its jurisdiction over the area of judicial appointments. Membership of the GCJ had been subject to the limitations applicable to judges and magistrates as regards incompatible activities and excluded the simultaneous performance of other governmental responsibilities in the judicial field.

Furthermore, the procedure for selecting members of the GCJ from serving magistrates and judges had not been intended to be “political” or, a fortiori , politicised or instrumentalised for political reasons or ends. The selection process had to comply with certain criteria, such as merit and capacity, which were generally applicable for equal access to public functions or positions and the civil service under the law. Importantly, the applicants’ domestic claim had been related to the part of the procedure preceding any actual voting by members of parliament (or the results thereof). That specific part of the procedure vested in its organs had not been related to Parliament’s core, legislative, function.

(ii) The Eskelinen test – The impugned proceedings had not concerned the applicants’ main professional activities as magistrates but an unfulfilled opportunity for them to be considered by Parliament for the membership of the GCJ. As in its judgments concerning proceedings relating to unsuccessful applications within recruitment procedures to judicial posts and to recruitment procedures to other posts in the national public/civil service, at this point in its assessment the Court focused on the Eskelinen test. It noted, however, the appointment procedure for membership of the GCJ had concerned the progress of the applicants’ career as legal professionals. Consequently, the Eskelinen test was prima facie pertinent to the facts of the case.

‒ The first condition of the Eskelinen test (whether national law had “excluded” access to a court) – Section 42 of Law no. 2/1979 provided a remedy in respect of a violation of constitutional rights vis-à-vis certain forms of parliamentary activities. Even though the scope of that type of constitutional review was limited, it had not been clearly shown that access to a court was expressly excluded. Section 41(2) of that Law provided a general framework for various types of amparo appeals and for the possibility to challenge “omissions”. Although the Constitutional Court had taken no specific stance on whether or not the continuous and continuing omission or inaction alleged by the applicants had been justiciable under section 42 or, more specifically, whether or not the applicants’ amparo appeal had fallen within its scope, the material before the Court clearly showed that an omission could be subject to review under section 42.

‒ Conclusion as to the Eskelinen test – It had not been convincingly substantiated by the Government that access to the Constitutional Court had been excluded in respect of the specific claim lodged with it by the applicants. On the basis of the case-file the Court was satisfied that their claim could have been adjudicated by it. Therefore, the first condition of the Eskelinen test had not been met. It was thus not necessary to examine the second condition of that test.

Conclusion ‒ Article 6 under its civil head is applicable.

(2) Merits – Having regard to the text of the Constitutional Court’s decision and the material before the Court, it appeared that here had not been (settled) jurisprudence concerning the statutory time-limit and which would be foreseeably applicable to the specific factual and legal context raised in the applicants’ amparo appeal. Moreover, the Constitutional Court had been the only level of jurisdiction able to deal with the situation complained of within their amparo appeal. Given the above, the evident general importance of the matter, the apparent novelty or rareness of the legal issues raised before the Constitutional Court, and the particular circumstances of the case and with due regard to the aims of legal certainty and the proper administration of justice, it had been reasonable to expect that any rejection of the amparo appeal for the sole non-compliance with the statutory time-limit would need to be based on adequate reasoning. It had been essential for the Constitutional Court to explain whether (i) section 42 had been applicable to a situation concerning inaction or an omission and a continuous and continuing situation, (ii) the three-month time limit had been applicable and if so, how it had been to be calculated and (iii) the rationale for the approach to be adopted.

While putting forward, as dies a quo , two dates related to distinct events – the date of expiry of the mandate of the previous composition of the GCJ and a date related to the most recent election to Parliament – the Constitutional Court had omitted to put forward even a basic justification for the relevance of those dates vis-à-vis the scope of the amparo appeal before it. Its reference thus to the first date had not been foreseeable. In this regard the thrust of the amparo appeal had concerned the claim about the subsequent – continuous and continuing – delay (lasting some two years already, at the time) in convening a plenary session in order that a vote could be taken on the basis of the list.

In conclusion, the unforeseeable interpretation and application of section 42 of Law no. 2/1979 and the resulting adverse impact on a fundamental safeguard of access to a court for the protection of the applicants’ arguable civil right, which had been closely connected with the observance of the legal procedure for renewing the composition of the GCJ and with the proper functioning of the justice system, had impaired the very essence of their right of access to a court, given the circumstances of the case.

Conclusion : violation (four votes to three).

Article 41: finding of a violation sufficient just satisfaction in respect of non-pecuniary damage.

(See also Savino and Others v. Italy , 17214/05 and al., 28 April 2009, Legal summary ; Tsanova-Gecheva v. Bulgaria , 43800/12, 15 September 2015, Legal summary ; Vilho Eskelinenand and Others v. Finland [GC], 63235/00, 19 April 2017, Legal summary ; Cătăniciu v. Romania (dec.), 22717/17, 6 December 2018, Legal summary ; Bara and Kola v. Albania , 43391/18 and 17766/19, 12 October 2021, Legal summary ; Grzęda v. Poland [GC], 43572/18, 15 March 2022, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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