JOINT CONCURRING OPINION OF JUDGES RAVARANI AND MOUROU-VIKSTRÖM

Together with our colleagues we voted in favour of finding no violation of Article 6 § 1 of the Convention. We found, in accordance with the principle of subsidiarity, that the national courts had validly ruled on the procedure for appointing the President of the Murcia High Court of Justice. Indeed, on 27 June 2017, the Supreme Court found that the General Council of the Judiciary (“the Council”) had given sufficient reasons for its decision to appoint Mr M.P.H. as President and not the applicant. In doing so the Supreme Court validated, albeit by a narrow majority, the new and more thorough examination of the merits of the candidates which it had ordered the Council to provide. An international court can hardly call into question the assessment of the candidates’ qualities made at national level, in particular after oral interviews, even if this assessment appears to be questionable.

In this regard, we believe that certain elements are worth noting.

It is true that the national law sought to provide a framework for the appointment of judges called upon to exercise management and supervisory functions, by establishing a number of cumulative criteria, some of them based on objective findings, in accordance with the international requirements and the case-law of the Court [1] . The aim was to achieve transparency in appointments and to avoid the politicisation of the composition of judicial councils and of the positions adopted by them [2] . This perfectly laudable objective is, however, qualified by the discretionary nature of the appointment decision which is retained in the domestic legislation. It should thus be stressed that the call for applications of 14 October 2014 announcing the public competition for the position of President of the Murcia High Court of Justice indicated that the appointment was discretionary while being subject to a list of criteria, some of which were strictly objective (for instance seniority, length of time in office in civil and criminal matters) while others required a far more subjective assessment (ability to exercise leadership and to manage human resources). In this context, we note that the law did not assign any order of preference to the different criteria (objective on the one hand or requiring a subjective assessment on the other). Is there not a contradiction or at least a difficulty in the relationship between these criteria, that is to say, in the discretionary nature of the decision combined with objective criteria? For as long as domestic law allows for a decision ‑ making power that is in fact entirely discretionary, without any obligation to give real weight to objective factors, even if they are provided for by law, it will be virtually impossible to challenge the choices made, however questionable they may be.

It is true that discretionary power is subject to the principle of legality and must be distinguished from arbitrariness, understood as an absolute power which is subject only to the whims of its holder and which reflects a will that is unfettered and often unjust. However, discretionary power nevertheless entails almost total freedom to decide, and as long as domestic law allows judges to be appointed to high office on the basis of such power, it will be very difficult to challenge the decisions taken. To do so, it must be successfully demonstrated that the decision does not meet the legal requirements or is manifestly unreasonable.

We are of course aware of the need, in certain circumstances, to make an appointment dependent on a number of subjective criteria which allow the personal qualities of a candidate to be taken into account. This is without any doubt true with regard to the appointment to the office of president of a court, which requires, in addition to judicial skills, a vision of the role and the means of performing it, as well as skills in communicating with colleagues and the outside world, parties to judicial proceedings and the political authorities. An application for a position involving leadership and management of human resources cannot be assessed simply by examining the candidate’s curriculum vitae, however prestigious and solid it may be, but must take into account his or her personality.

The problem is that in the present case the subjective criteria seem to have overshadowed the objective ones and apparently served as the only basis for the choice of candidate. In such a system, therefore, one subjective criterion can override all the objective criteria, thus making the whole process entirely discretionary.

How can this dilemma be resolved? How can discretionary power be circumscribed in order to avoid completely disregarding objective criteria while leaving a necessary space for subjective criteria? One solution could be to assign a coefficient to each criterion, thus making it possible to weight the various elements (objective on the one hand and requiring a subjective assessment on the other) to be taken into account in the selection process (seniority, posts previously held, variety of experience that could be relevant to the post applied for, vision and action programme for the post, etc.) and thus to avoid making the process entirely subjective.

DISSENTING OPINION OF JUDGE JIMENA QUESADA

1. I regret that I am unable to subscribe to the majority’s opinion that there has been no violation of Article 6 § 1 of the Convention in this case. It seems to me that the admissibility of the application under Article 6 § 1 of the Convention is well argued. However, it is my understanding that the general principles set out in paragraphs 34 and 35 of the judgment have not been consistently applied in the present case and that, consequently, the Court should have found a violation of Article 6 § 1 of the Convention (A). Moreover, as I stated in our deliberations, the violation of Article 6 § 1 is even more obvious and pronounced in the light of Article 14 of the Convention and Article 1 of Protocol No. 12. From this point of view, I consider that in the instant case there has also been a violation of Articles 14 and 6 of the Convention taken together (B), as well as a violation of Article 1 of Protocol No. 12 taken together with Article 6 § 1 of the Convention (C).

2. With due respect to my colleagues, I have not been convinced by their approach to the case, since it is based on an unjustified and uncritical application of the national margin of appreciation doctrine in examining the two decisions of the General Council of the Judiciary (hereinafter “the Council”) as well as the Supreme Court’s judgment of 27 June 2017. By contrast, I note that the majority practically ignored the Supreme Court’s judgment of 10 May 2016 (only briefly mentioned in paragraphs 13-15 and 36), which was essential in order to conduct a fair analysis as to whether the Convention rights at stake had been violated. In other words, it was inappropriate to address the two decisions of the Council and the Supreme Court’s judgment of 27 June 2017 without any substantial reference to the previous Supreme Court judgment of 10 May 2016.

3. As a result, the Court’s assessment could only be incomplete. Bearing this in mind, the circumstances of the case revealed a need for the Court to determine, going beyond a concrete comparison between the merits of the applicant and Mr M.P.H. in a way that would suggest that the Court was acting as a fourth-instance body (as in paragraphs 8 to 11 or 17 of our judgment), whether there was in fact a systemic situation (in terms of arbitrariness in applying objective criteria in the selection and career of judges, politicisation of the judiciary, or gender discrimination in public appointments made by the Council) which our international court must intervene to redress, given its problematic nature as regards the State’s Convention commitments. In this respect, as I intend to argue in the following paragraphs, I have the sincere impression that the Court missed a crucial opportunity to adopt a pilot solution aimed at improving the Spanish judicial system and bringing it into line with Article 6 § 1 of the Convention.

4. Concerning the violation of Article 6 § 1 of the Convention, the majority reiterate in paragraph 35 that “[t]he Court should not act as a fourth ‑ instance body and will therefore not question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable” or “unless no reasons are provided for it or if the reasons given are based on a manifest factual or legal error committed by the domestic court, resulting in a ‘denial of justice’.” In my opinion, unfortunately, the findings included in the Supreme Court’s judgment of 27 June 2017 (and upheld in Constitutional Court Order No. 119 of 13 November 2018) lack adequate legal support, in so far as they endorsed an arbitrary and manifestly unreasonable decision of the Council (its approval decision of 26 May 2016) which clearly and undisguisedly decided not to give effect to the Supreme Court’s judgment of 10 May 2016 (adopted by twenty-three votes to ten, with one dissenting opinion signed by ten judges and one concurring opinion signed by two judges).

5. In order to understand the circumstances of the case and the terms of this controversy, it is important to highlight the fact that the Supreme Court’s judgment of 10 May 2016 (see the fifth legal ground) quashed the Council’s first decision of 29 January 2015 on the basis of two considerations:

- firstly, the Council had ignored the relevance of the four objective merits in respect of which the applicant’s curriculum vitae was clearly superior to that of the candidate (Mr M.P.H.) appointed as President of the Murcia High Court of Justice. These were: seniority in the judiciary (with a difference of more than a thousand positions in the ranking system between the applicant and Mr M.P.H.); practice as a judge in the civil and criminal courts (Mr M.P.H.’s lack of practical experience in the civil courts); judicial experience in collegiate judicial bodies (more than two decades in the applicant’s case as opposed to no experience in Mr M.P.H.’s case); and relevant judicial decisions in the civil and criminal courts (fifty-one for the applicant as judge rapporteur in both types of court, in collegiate bodies, as opposed to only five decisions for Mr M.P.H. as a judge in a single-person judicial body);

- secondly, the Council had given exaggerated and unexplained weight to two of the five subjective merits (aptitude for the direction, coordination and management of material and human resources; participation in governing bodies of the judiciary; knowledge of the situation of the courts in the territorial area concerned; action programme for performance of the role advertised; and complementary legal merits not having a judicial character, including academic activities) which were more favourable to Mr M. P.H. (complementary merits and, above all, the action programme).

6. In short, in its judgment of 10 May 2016 the Supreme Court called into question the Council’s first decision of 29 January 2015 in so far as:

- on the one hand, no reasons had been given as to why the impact of the four objective criteria had been disregarded (clear superiority of the applicant);

- on the other hand, no reasons had been given as to why, given that the subjective merits of both candidates were quite similar, one of these subjective merits (the action programme, more favourable to Mr M.P.H.) had been given decisive weight in the overall assessment.

7. In addition, the Supreme Court’s judgment of 10 May 2016 strongly criticised the laudatory assessment of Mr M.P.H.’s merits, stating that:

- the action programme had already received the highest possible rating ( una valoración máximamente favorable );

- this highly favourable assessment of the action programme and its oral presentation, ignoring the other criteria (and particularly the objective ones), was unreasonable, as attributing such decisive weight to an “interview” would open the door to complete arbitrariness.

8. Since, as indicated above, the majority virtually ignored the Supreme Court’s judgment of 10 May 2016 (whose existence is mentioned in paragraphs 13-15 and 36), in spite of its relevance in the instant case, it is worth citing the content of the following substantial part of the sixth legal ground:

“... the laudatory assessment of the merits of [Mr M.P.H.] contained in the impugned appointment decision clearly provides only weak support for the decision ultimately adopted. ... In fact, the only truly relevant information (of the information set out in the contested plenary resolution) that could be specifically applicable to [Mr M.P.H.] and not to the plaintiff is that concerning the assessment of the so-called ‘action project’, which, it is clear, secured the highest possible rating from the majority of the Plenary Council.

Nevertheless, however much the aforementioned margin of appreciation of the selection body on this specific point is highlighted and respected, this factor alone cannot carry the weight that is being attributed to it. After all, if this information were capable, on its own and independently of the other factors, of substantiating the final decision, it would really be unnecessary to analyse the other assessment criteria. It would be sufficient to ask potential applicants to provide an action project and then invite them to an interview to present and discuss it, without the need to assess any other issues. ... [W]hen, as has happened here, the weight of the decision is placed on the most purely subjective considerations and criteria, to the detriment of the objective parameters outlined in the call for applications itself, this can and should be fully explained in order to dispel any suspicion of possible arbitrariness or misuse of power, in an area such as this in which even appearances are important and what is at stake is the public’s confidence in the proper assignment of senior judicial posts.”

9. However, in its second decision (dated 26 May 2016), the Council not only failed to give reasons why the impact of the objective criteria had been disregarded and preference had been given to some of the subjective criteria, but it also insisted on extolling the subjective merits of Mr M.P.H., in terms of both quantity (more than five pages for Mr M.P.H. and less than one page for the applicant) and quality (with highly laudatory remarks concerning Mr M.P.H. and pejorative ones concerning the applicant, see infra ).

10. Despite this, the Supreme Court held in its judgment of 27 June 2017 that this second decision of the Council was correctly reasoned and complied with the previous Supreme Court judgment of 10 May 2016. On this point, it is worth emphasising that the judgment of 27 June 2017 was adopted by seventeen votes to fifteen (as indicated in paragraph 18 of our judgment). Similarly, Constitutional Court Order No. 119 of 13 November 2018 (which upheld the Supreme Court’s judgment of 27 June 2017) was adopted by six votes to five (four judges expressed their dissent in three separate opinions). By the way, no reference is made in our judgment to the content of the dissenting opinions appended to that order of the Constitutional Court (comprising almost one hundred pages) (see, by contrast, Muñoz Díaz v. Spain , no. 49151/07, §§ 17-20, 8 December 2009, with reference to a dissenting opinion appended to the relevant Constitutional Court judgment adopted by five votes to one – that dissenting opinion was then somehow endorsed by the Court in finding a violation of the Convention by six votes to one).

11. In this context, I feel that the Court has paradoxically acted as a fourth ‑ instance body in upholding the findings contained in the Supreme Court’s judgment of 27 June 2017, which at the same time endorsed the exclusive focus on the subjective criteria (mainly on the action programme) by the Council in its second decision (as shown in the lengthy paragraph 17, in conjunction with paragraph 37, of our judgment). In particular, the Supreme Court’s judgment of 10 May 2016 (fifth legal ground) examined in detail all nine merits (objective and subjective) with regard to both the applicant and Mr M.P.H. and, as a result, it did not require the Council to revise its decision on the subjective merits but rather to give reasons why the objectives merits had been set aside, in order to avoid arbitrariness (sixth legal ground). From this point of view, I find that the Supreme Court’s judgment of 27 June 2017 was not consistent with the previous Supreme Court judgment of 10 May 2016. Of course, national courts enjoy considerable flexibility in selecting the arguments and reasons they deem essential for the cases before them, but the gap between the objective merits of the applicant and the subjective merits of Mr M.P.H. was more than obvious (in favour of the applicant) and, consequently, the Court’s international supervision had to be exercised.

12. As regards Article 6 § 1 of the Convention, it is evident that in the present case the disregarding of the objective criteria (clearly favourable to the applicant), in contrast to the preference given to, and exaltation of, the subjective criteria (in favour of Mr M.P.H.), was based on an arbitrary and manifestly unreasonable selection of arguments and, accordingly, a finding was required to the effect that that provision had been violated. From this perspective, without prejudice to the Contracting Parties’ margin of appreciation as regards the system of judicial appointments in which discretion plays an important role, the Court’s case-law stressing the need to place greater emphasis on objective criteria so that the selection and career of judges are based on merit and ability should not be overlooked (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 117-29 and 221-22, 1 December 2020). That is also the philosophy behind Regulation No. 1/2010 of the plenary Council regulating the assignment of discretionary posts in the judiciary. Article 3 of that Regulation provides that “the proposals for appointment to posts of a discretionary nature shall be adjusted to take account of the principles of merit and aptitude for the exercise of the judicial function and, where appropriate, for the governmental function of the post in question” (paragraph 1), and that the appointment procedure “shall, on the basis of objectiveness and transparency, guarantee equality of access to [these posts] for those persons who meet the necessary conditions and possess the necessary abilities” (paragraph 2).

13. This case-law, alongside the international standards in this field which the Court takes into account (especially those of the Council of Europe, the European Union and the United Nations), should lead States Parties to the Convention to establish such criteria for judicial selection and careers with greater objectivity in the relevant rules and calls for candidates; thus, the rulings of the national courts (some of which are extremely attached to traditional parameters of “technical discretion” which inhabit the fine line between discretion and arbitrariness, making it difficult to control the latter) should be consistent with these same objective criteria. This is irrespective of the fact that each State can foresee that the reviewing court (in the instant case, the Supreme Court), by virtue of the margin of appreciation, “must have the power to quash the impugned decision, and either take a fresh decision or remit the case to the same body or a different body” (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13, 57728/13 and 74041/13, §184, 6 November 2018; see also Oleksandr Volkov v. Ukraine , no. 21722/11, § 125, 9 January 2013).

14. In the present case, the Supreme Court’s severe criticism (again, in the fifth and sixth legal grounds of its judgment of 10 May 2016) in relation to the Council’s first decision and the consequent quashing of that decision could apparently have been accompanied by the adoption of the eventual solution by the national court itself (awarding the post directly to the applicant, as advocated by the two judges who signed a concurring opinion appended to the Supreme Court’s judgment of 10 May 2016) instead of the case being remitted to the Council. Furthermore, such an approach by the Supreme Court would have been more consistent with the adoption of a judicial decision within a reasonable time under Article 6 § 1 of the Convention. Having failed to do so, the Supreme Court was confronted with a new Council decision (the contested one of 26 May 2016) in respect of which the review exercised by the Supreme Court itself (judgment of 27 June 2017) and then by the Constitutional Court (Order No. 119 of 13 November 2018) was manifestly insufficient, as it failed to fulfil the obligation to state reasons deriving from Article 6 § 1 of the Convention (see Ruiz Torija v. Spain , no. 18390/91, § 29, 9 December 1994, and Hiro Balani v. Spain , no. 18064/91, § 27, 9 December 1994).

15. Hence, both the national highest courts (Supreme Court and Constitutional Court) resigned themselves to endorsing the Council’s decision, since they did not exercise the full control required by Article 6 § 1 of the Convention despite the Council’s defiant tone. In particular, that second Council decision contained some preliminary considerations (briefly mentioned in paragraph 14 of our judgment, but without any inferences being drawn) that actually anticipated a declaration of intent not to accept the jurisdictional control of the Supreme Court (as a “third body”, see infra ) or to comply with the judgment of 10 May 2016. It is worth citing this preliminary remark from the Council:

“This Council considers that in no circumstances can it be accepted that where the legislature does not limit discretion, or where the Council does not impose limits on itself, a third body, whatever it may be, can arrogate constitutional functions that are outside its remit by depriving and degrading the constitutional body on which that function is conferred to the point of rendering its function indistinguishable and unrecognisable from that of a simple administrative body”.

16. Admittedly, the Court recognised the particular importance of the responsibilities entrusted to the Council by the Constitution in a key area from the perspective of the rule of law and the separation of powers (see, mutatis mutandis , Ramos Nunes de Carvalho e Sá , cited above, § 195). However, in its decision of 26 May 2016 the Council adopted a stance that is hardly compatible with the requirements of the rule of law and the judicial review to which the acts of the Council itself are subject (see sections 1(3)(b) and 12(1)(b) of the Judicial Administrative Proceedings Act). The aforementioned statements of the Council do not stand up to the slightest criticism under Article 6 § 1 and the entire European Convention architecture that underpins the Council of Europe. Quite rightly, the dissenting opinions (fifteen out of thirty-two judges) appended to the Supreme Court’s judgment of 27 June 2017 criticised this behaviour by the Council (which sought to set itself up as a “ solutus judice ”) from a rule-of-law perspective.

17. In this sense, looking beyond the resolution of the specific case, the usefulness of the Convention mechanism consists in establishing elements likely to reinforce the three pillars of the Council of Europe (rule of law, democracy and human rights) and ensuring that they permeate the functioning of the judicial systems of its member States. This consideration is not negligible, since the Council’s supposed strength in resisting the jurisdictional control of the Supreme Court may paradoxically become its weakness, viewed from the same perspective of the rule of law and the separation of powers. In effect, a judicial council with such an “absolute” configuration is likely to be more vulnerable to politicisation, given that political parties may be tempted to enact legislation, notably in matters concerning judicial appointments, that would make councils of the judiciary less autonomous in the face of possible encroachment by the legislative and executive powers (see Grzęda v. Poland [GC], no. 43572/18, § 346, 15 March 2022).

18. In this regard, the Court takes into consideration the Plan of Action adopted by the Committee of Ministers (1253rd meeting of the Ministers’ Deputies) on 13 April 2016 on Strengthening Judicial Independence and Impartiality, the first line of action of which postulates that “measures should be taken to de-politicise the process of electing or appointing persons to judicial councils, where they exist, or other appropriate bodies of judicial governance. Members should not represent political factions or be politically partisan in the performance of their functions. They should also not be subject to, or be susceptible to, political influence either from the executive or legislature” (see Grzęda , cited above, § 125). In the same vein, the 2022 Rule of Law Report (Country Chapter on the rule of law situation in Spain) from the European Commission emphasised that “the fact that the renewal of the Council for the Judiciary is pending since December 2018 remains a concern” and that “there have been further calls to modify the Council’s appointment system in line with European standards” (Luxembourg, 13 July 2022, SWD(2022) 509 final). Regrettably, the instant case is no stranger to this problematic context.

19. For these reasons, in the light of the circumstances of the case, I consider that the Court should have found a violation of Article 6 § 1 of the Convention.

20. As I have already said, I believe that the Court should have found not only an autonomous violation of Article 6 § 1 of the Convention, but also a violation of Article 14 taken together with Article 6 § 1 of the Convention. The reasons for this are twofold.

21. Firstly, in view of the applicant’s manifestly superior merits with regard to all the objective criteria, compared with the more advantageous position of the male candidate (Mr M.P.H.) only with regard to some of the subjective criteria, it cannot be accepted that there were objective and reasonable circumstances to justify making that distinction in favour of the latter by giving him preference for appointment to the post of President of the Murcia High Court of Justice. On the contrary, that favourable treatment was based on subjective and unreasonable considerations which were given disproportionate weight. The prohibition enshrined in Article 14 encompasses differences of treatment based on an identifiable characteristic, or “status” (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017). For the purposes of Article 14, a difference in treatment based on a prohibited ground is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Mazurek v. France , no. 34406/97, §§ 46 and 48, 1 February 2000).

22. In the present case, despite the fact that the differential in favour of the applicant in terms of objective merits was clearly greater than the differential in favour of the other candidate regarding the subjective merits, the difference in treatment to the detriment of the applicant was not objectively and reasonably justified in the specific circumstances, and thus amounted to discrimination against the applicant on grounds of sex. As a matter of fact, the infringement of Article 14 taken in conjunction with Article 6 § 1 is even more obvious when account is taken of the fact that only one woman, as opposed to sixteen men, held the presidency of one of the seventeen High Courts of Justice in Spain, so that Article 14 actually entailed a positive obligation to make a distinction in favour of the applicant. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, 6 April 2000; Runkee and White v. the United Kingdom , no. 42949/98, § 35, 10 May 2007; and D.H. and Other v. the Czech Republic [GC], no. 57325/00, § 175, 13 November 2007). The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different (see J.D. and A. v. the United Kingdom , nos. 32949/17 and 34614/17, § 84, 24 October 2019).

23. Secondly, the violation of Articles 14 and 6 of the Convention taken together also occurred in so far as both the Supreme Court in its 2017 judgment and the Constitutional Court in its 2018 order upheld statements by the Council which reflect a pattern of gender inequality with regard to the applicant. In particular, in comparing the action programme of the male candidate (Mr M.P.H.) with the applicant’s action programme, the Council referred to “the paucity of the action programme” submitted by the applicant, which, it claimed, contained “sparse, generic and very trivial proposals” and found that, as a result, the difference between both candidates was “indisputable, obviously indisputable, overwhelming even” ( indiscutible, rabiosamente indiscutible, avasalladora incluso ) in favour of Mr M.P.H., who had “a vision and understanding of the organisational challenges of the Murcia High Court of Justice far superior” to that of the applicant, as well as “a level of preparation commensurate with that superiority.” Regarding this issue, our judgment observes that the Council “stated that the most significant element for its decision was the presentations with the candidates, which were recorded” (see paragraph 15). Nonetheless, the call for candidates for the post of President of the Murcia High Court of Justice issued by the Council on 14 October 2014 referred in its sixth point to an “appearance” at a “public hearing” ( comparecencia en audiencia pública ) although, in reality, there was only an oral presentation of the action programme and proposals without any questions being put to the candidates. In other words, no real interview took place, since the Council did not put any questions enabling it to seek clarifications if, for example, it considered that some of the proposals were “sparse, generic and very trivial”, etc.

24. These are undoubtedly statements and adjectives (as also mentioned in paragraph 15 of our judgment, but again without any inferences being drawn) which are hardly acceptable or identifiable in the practice of administrative selection procedures for the civil service, even when subjective merits are being compared and, logically, even more so when objective merits are being compared. Given that, in comparing the respective action programmes of both candidates, the Council’s subjective assessment contained these pejorative adjectives relating to the applicant, we should ask: would it be acceptable for the Council to have used similar, or even stronger, adjectives in relation to the male candidate (Mr M.P.H.), in ascertaining that he did not possess one of the objective merits (for example, not having served on collegiate bodies), that he lacked practical experience in relation to one of those objective merits (practice in the civil courts), or that there was a very wide gap separating him from the applicant with regard to other objective merits (seniority in the judiciary and number and type of judgments)? The question is recurrent, and the answer is obvious.

25. In my view, not only was the applicant assessed unfairly in terms of merit and ability in the process of appointment to the post of President of the Murcia High Court of Justice (despite the discretionary nature of the selection procedure for a post with a judicial and governmental component), without this having been corrected by the national courts in the light of Article 6 § 1 of the Convention, but she also suffered a kind of secondary victimisation on account of the Council’s statements referred to above (and especially the words “indisputable, obviously indisputable, overwhelming even”) in its second decision (see, mutatis mutandis , J.L. v. Italy , no. 5671/16, § 142, 27 May 2021).

26. This should have led the Court to find a violation of Article 14 in conjunction with Article 6 § 1 of the Convention.

27. Finally, in the present case, I consider that there has also been a violation of Articles 1 of Protocol No. 12 and 6 § 1 of the Convention taken together. Indeed, the violation of Article 14 in conjunction with Article 6 § 1 (see supra ) is even more marked in the light of Protocol No. 12 when we take into consideration the fact that the national legislation requires “a balanced representation of women and men in appointments” (see section 16 of Organic Law 3/2007 of 25 February 2007 on effective equality between women and men), as well as the implementation of “measures favouring the promotion of women of merit and ability” (Article 3(1) in fine of Regulation No. 1/2010, cited above). This is consistent with Protocol No. 12, the Preamble to which provides that “the principle of non-discrimination does not prevent States Parties from taking measures in order to promote full and effective equality, provided that there is an objective and reasonable justification for those measures.”

28. In principle, the Court has held that “the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12” (see, for example, Napotnik v. Romania , no. 33139/13, § 70, 20 October 2020, and Negovanović and Others v. Serbia , nos. 29907/16 and 3 others, § 75, 25 January 2022). Nevertheless, “[t]he Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background ... Irrespective of this scope, however, the final decision as to the observance of the Convention’s requirements rests with the Court itself” (see Paun Jovanović v. Serbia , no. 41394/15, § 77, 7 February 2023). Lastly, the margin of appreciation has manifested itself precisely in terms of anti-discriminatory judicial policy in favour of women in situations of comparable merits and ability (see, again, section 16 of Organic Law 3/2007 and Article 3 of Regulation No. 1/2010). Consequently, in the present case, there was a failure on the part of the national courts to implement the undisputed interpretation of the existing legislation on this matter (see Paun Jovanović , cited above, § 92).

29. In order to understand the gender equality background to the present case under Article 1 of Protocol No. 12, we could hypothetically swap the positions of the applicant and the male candidate. That is to say: suppose the differential in terms of the male candidate’s objective merits had been greater and the differential in terms of the applicant’s subjective merits had been smaller. In such a case: would the Council have given preference to the female candidate? Again, the question is recurrent, and the answer obvious. In any event, without recourse to such a hypothesis, the actual situation (higher objective differential in favour of the applicant compared with the lower subjective differential in favour of the male candidate) should have led to the conclusion that, if the existing legislation on effective equality were implemented, the applicant would have been appointed to the post. Nonetheless, no reasons were given by the Council (or by the Supreme Court in its 2017 judgment or the Constitutional Court in its 2018 Order endorsing the Council’s final decision) as to why, even though the gap between the objective merits of the applicant and the male candidate (Mr M.P.H.) was much wider than the gap between the male candidate and the applicant in terms of subjective merits, the national rules on effective equality were not applied. Those rules should have been applied, a fortiori , in order to avoid a kind of unlawful reverse discrimination in favour of the male candidate.

30. In conclusion, there has also been a violation of Article 1 of Protocol No. 12 in conjunction with Article 6 § 1 of the Convention.

[1] See Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 117 et seq., 1 December 2020.

[2] See Grzęda v. Poland [GC], no. 43572/18, §§ 301 et seq., 15 March 2022.