CONCURRING OPINION OF JUDGE ELÓSEGUI

1. First of all, I agree fully with all the conclusions and affirmations of the present judgment. The goal of this concurring opinion is to reaffirm some of the points of its reasoning and to stress “ a fortiori ” the necessity of the Court’s ruling in this matter. In sum: (i) the Court is fulfilling its function under the Convention; (ii) there is ample case-law applicable to this situation (see paragraphs 82-93 of the judgment); (iii) we are dealing here with the applicants’ individual rights; (iv) Article 6 § 1 of the Convention is applicable; and (v) there has been a violation of Article 6 § 1 of the Convention.

2. It can be observed that in recent years the Court has received a huge quantity of applications made by judges seeking to have their rights protected. For instance, in an article written by K. Aquilina in 2021 in the Liber amicorum for Judge Vincent De Gaetano, she cited 39 judgments [3] . In the last two years many more complaints have arrived at the Court. It is a sign that the Court has to continue paying attention to this phenomenon. Many observers of democracy in Europe worry about the symptoms of a reverse of democracy and the rule of law and a lack of separation of powers, not only in democracies in transition but also in the old Western democracies [4] .

3. The present complaint, even though it addresses a question about the functioning of the General Council of the Judiciary (“the GCJ”) in Spain, goes much further because it touches on the very essence of the independence of the judiciary. It is clear that the Venice Commission accepts that there are different ways of appointing the GCJ (see paragraph 61 of the judgment), that is, the body that administers the judiciary, and that intervention by Parliament is among the possibilities. However, the Spanish Parliament has only an instrumental function, and the decision on these appointments is not a legislative act properly speaking (see paragraph 96 of the judgment). Moreover, it is mandatory. Hindering the renewal of the GCJ’s membership for four years because of a lack of agreement between the political parties, and not proceeding to put the list of candidates already approved on the agenda to be voted on in Parliament, amounts to a blockade that is unprecedented in the last forty-eight years of democracy in Spain, since 1975.

4. The judgment finds that persons on the approved list of candidates to be members of the GCJ have the right to a decision on their appointment to the GPJ on the competition for those positions, a process which is still ongoing today. The fact that Parliament has a margin of discretion in relation to the results and the fact that this choice is not based only on criteria of capability and merit, but on the assessment of other capacities which the political parties see fit to include, does not mean that the blocking of those appointments is in accordance with the law, because the renewal of this body is mandatory under the Constitution and the Institutional Law on the Judiciary (see paragraph 34 of the judgment).

5. The Court recognises that the Spanish legislative framework must offer a protective mechanism for candidates who have put themselves forward, and that in the event of a deadlock or failure to respond they must have access to a court in order to protect their right to see the competition finalised and the membership of the Council renewed. The Court also recognises that the deadline for taking into account possible omissions is open-ended, and continues until such time as the outcome of the competition is resolved. It is clear from the applicants’ amparo appeal that their claim was directed against Parliament and its organs. The applicants specifically referred to an alleged violation of specific duties incumbent on the organs of Parliament (see paragraphs 1, 34, 54, 55 and 98 of the judgment). The claim was not related to Parliament’s legislative function or any act of Parliament or omission to legislate.

6. The positions of judges in the Spanish General Council of the Judiciary (who must comprise twelve of the twenty members who make up that body, plus the president of the GCJ who is at the same time president of the Supreme Court, elected subsequently by these twenty members in a free vote) are filled by a public call for applications and their function is a public office, exercised in their capacity as judges and civil servants and involving technical duties; therefore, it is part of their professional career and is not a political office (see paragraphs 34 and 121 of the judgment). In fact, in Spain judges are prohibited from belonging to political parties while in office (see paragraph 31 of the judgment) (unlike in other countries such as Germany, Austria, Liechtenstein and France [5] ). Furthermore, in Spain, access to these administrative bodies is governed by the principles of equality and merit, and the procedures have to be conducted in accordance with the requirements determined by law (see paragraph 28 of the judgment). The procedure for appointment to the Spanish GCJ concerned the progress of the applicants’ professional careers as legal professionals (see paragraphs 42, 43, 56 and 57 of the judgment). In addition, this fundamental right is protected by the legal system itself, which regulates the avenues of appeal available in the event of irregularities in these processes. As regards access to membership of the GCJ, the process is provided for by the Constitution itself and by an Institutional Law, and thus also forms part of the system of fundamental rights under the Constitution. In consequence, the body with competence to protect those rights is the Constitutional Court.

7. The consequences arising from the dysfunction in the renewal of the GCJ are enormous as regards the ordinary functioning of the judiciary. A chain of disruption to the whole judicial system can be observed. Today, of the twenty-one members who made up the GCJ five years ago in 2018, only seventeen remain, on an interim basis (one has reached the age of retirement, another has passed away, the president resigned last year, and another member resigned on 13 March 2023). The president ad interim ended up accepting this last resignation under section 582(1) of the Institutional Law on the Judiciary, according to which members only cease their positions after the five years for which they were appointed, or by means of a resignation accepted by the president of the judges’ governing body.

8. Moreover, this administrative body is in charge of appointments to the Supreme Court and the appointment of the presidents of the High Courts of Justice (judicial bodies of each Autonomous Community, of which there are 17) and of the provincial courts ( Audiencias Provinciales ) (see paragraphs 40-41 of the judgment); as of today, of the 79 positions of judge of the Supreme Court, 22 are vacant (see paragraph 59 of the judgment). In total, there are 80 vacancies in these higher courts. In addition, the GCJ is in charge of the normal competitions for access to the judiciary. It is an objective fact that there is an enormous excess workload caused, among other reasons, by retirements that are not being covered. Currently there are 563 vacancies for judges. Although 382 new judges are expected to take up their functions between now and the end of December 2023, 181 positions will still be vacant. The judges have threatened to embark on a strike, which is unusual in the history of Spain (and the law does not provide for such a right). Spanish lawyers recently conducted two months of indefinite strike action until the Ministry of Justice agreed to a salary increase.

9. In the present judgment the Court reiterates that the right of access to a court under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. In order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law (see Grzęda v. Poland [GC], no. 43572/18, § 299, 15 March 2022). The Court’s examination has taken due account of the fact that the applicants’ claim before the Constitutional Court concerned the selection process for the GCJ, a constitutional body that plays a central role in ensuring the proper functioning of the justice system and that also contributes to the safeguarding of the independence of courts and judges.

10. In the Grand Chamber’s judgment in Grzęda , cited above, the Court set out very clearly a series of principles regarding the functioning of judicial councils that are equally applicable to this Spanish case. In the case of Grzęda the matter concerned the removal of the president of the Polish judicial council. In that judgment (cited above, §§ 325-26), the Court considered that the applicant’s position as an elected judicial member of the National Council of the Judiciary, the body with constitutional responsibility for safeguarding judicial independence, had been prematurely terminated by operation of law in the absence of any judicial oversight of the legality of that measure. The applicant was excluded from access to a court, a fundamental safeguard for the protection of an arguable civil right closely connected with the protection of judicial independence.

11. In the present Spanish case the matter concerns a four-year stoppage in the resolution of an appointment process that was already under way. Nonetheless, this does not imply any difference in the substance of the right protected by the Convention. In fact, the Spanish Government have not convincingly explained why the dispute – arising from the manifestly prolonged, and prima facie unlawful and unjustified, failure to take certain actions with a view to pursuing the process of choosing the judicial members of the governing body of the judiciary – did not merit judicial protection (see, mutatis mutandis , Grzęda , cited above, § 296).

12. In its complicated test based on the Vilho Eskelinen criteria, in short, the Court concludes that there was available amparo appeal to the Constitutional Court and the applicants tried to use it. That means that the Constitutional Court hindered the possibility of delving into the substance of the complaint, using an unconvincing formalistic argument and rejecting the case on the grounds that the complaint was submitted out of time. In addition, although the judgment clearly concludes that there has been a procedural violation of Article 6 of the Convention, in so far as the applicants were unable to access a court in order for the appointment procedure to take place, in reality it is clear that what is in issue is the infringement of a substantive fundamental and constitutional right, as the candidate judges have the right to a decision on their appointment to the GCJ regarding the outcome of the competition in which they participated, in accordance with the provisions of the law.

13. It is part of the role of the European Court of Human Rights to perform its functions in these situations of frontal attack on the Convention, the rule of law, democracy and the separation of powers. The Court has established its competence on numerous occasions to act when the matter concerns individuals whose rights are not being protected and who are not allowed access to the courts to defend themselves. The non ‑ observance of the legal procedure for renewing the composition of the governing body of the judiciary may have – in view of that body’s functions concerning, in particular, judicial appointments – a significant impact on the functioning of the justice system and the respondent State’s compliance with its above-mentioned responsibilities within the Convention system.

14. The raison d’être of the Spanish GCJ as the governing body of the justice system and its contribution to the safeguarding of judicial independence require that the GCJ enjoy autonomy vis-à-vis the political branches of State power. The situation complained of in the present case at the very least had the potential to adversely affect the GCJ’s mission, and this would raise serious rule-of-law issues – including those pertaining to the safeguarding of rights enshrined in and protected by the Convention (see paragraphs 38, 62 and 63 of the judgment).

15. The Court notes that the material available to it (see paragraphs 39 and 61 ‑ 63 of the judgment) discloses that the functioning of judicial councils and, in particular, matters relating to the procedures for selecting their members, are considered essential for the proper functioning of national justice systems; stalemates, deadlocks and other omissions affecting the renewal of the composition of those institutions are regarded as particularly worrying, in particular from a rule-of-law perspective.

16. Even though the matter at issue relates to the functioning of the administrative body which governs judicial appointments and disciplinary procedures, there is a link between this body and the independence of the judiciary itself. As explained above, in Spain this body is in charge of many judicial appointments to the higher courts and of organising competitions for judges of the ordinary courts. GRECO, the Venice Commission and the European Commission have all stressed the necessity of reinforcing the independence of the judiciary in Spain. The judiciary has a special role in society as the guarantor of justice, a fundamental value in a State governed by the rule of law; it must enjoy public confidence if judges are to be successful in carrying out their duties. This consideration has been found to be relevant in relation to the right of access to a court for judges in matters concerning their status or career. Given the prominent place that the judiciary occupies among State organs in a democratic society and the importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary, the Court must be particularly attentive to the protection of members of the judiciary against measures that can threaten their judicial independence and autonomy (see Grzęda , cited above, § 302 with further references).

17. Under the relevant Council of Europe standards, a judicial council’s autonomy in matters concerning judicial appointments must be protected from encroachment by the legislative and executive powers, and its independence must be guaranteed. As the Government mentioned, in accordance with the principle of the autonomy of Parliament, widely recognised in the member States of the Council of Europe, Parliament is entitled, to the exclusion of other powers and within the limits of the constitutional framework, to regulate its own internal affairs (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 142, 17 May 2016).

18. The Convention does not prevent States from taking legitimate and necessary decisions to reform the judiciary (see Gumenyuk and Others v. Ukraine , no. 11423/19, § 43, 22 July 2021). However, any reform of the judicial system or, as in the present case, any manifestly prolonged and prima facie unlawful and unjustified failure to exercise a mandatory non-legislative function vested in Parliament concerning the judiciary (namely, the selection process in respect of judicial members of the governing body of the judiciary) should not undermine its functioning and legitimacy, the proper functioning of the justice system (in particular, as regards the appointment process of judges) or public confidence in the constitutional institutions, in this case Parliament and the GCJ (see, mutatis mutandis , Grzęda , cited above, § 302).

19. Finally, in relation to the margin of appreciation allowed to Spain as a member State of the Council of Europe, and the execution of judgments of the Court, the Spanish legislation has provided since 2015 for an appeal before the Supreme Court for review of the Strasbourg Court’s judgments. That procedure remains open to applicants and the Court does not need to mention it explicitly in each judgment. In this connection, monitoring the execution of the judgment is the task of the Committee of Ministers, but it is up to the applicants in their turn to make use of the remedy provided for in the Spanish legislation itself. In fact, several judgments of this Court against Spain have already been reviewed by the Supreme Court at the request of the applicants. Accordingly, this avenue of appeal reinforces the margin of appreciation of the States since, depending on the type of violation that has occurred, affording redress for the violation of the Convention may once again be in the hands of the domestic courts.