JOINT DISSENTING OPINION OF JUDGES RANZONI, GUYOMAR AND GNATOVSKYY

1. We regret to be unable to follow the majority in finding that there has been a violation of Article 6 of the Convention in respect of each applicant in the present case. While we find the situation that gave rise to the applicants’ complaints most deplorable and regard it as negatively affecting the functioning of the Spanish judiciary, we consider that Article 6 § 1 of the Convention is not applicable in the circumstances of this case.

2. The case concerns the applicant candidates’ right of access to a court given the failure, for five years, by the Spanish Parliament to convene a plenary session to select members of the General Council of the Judiciary (GCJ) – a situation that “has been described by key stakeholders as unsustainable and anomalous” (see paragraph 63 of the judgment). Inasmuch as the thrust of the applicants’ complaints appears to oppose this deliberate inaction by the legislature, their efforts are certainly laudable. However, we consider that a situation of this nature cannot be resolved by instrumentalising the mechanism of human rights protection created by the European Convention on Human Rights, and, in particular, with reliance on the right to a fair trial provided for by its Article 6.

3. As correctly summarised in paragraph 77 of the judgment with reference to the recent Grand Chamber judgment in Grzęda v. Poland (no. 43572/18, 15 March 2022), for Article 6 § 1 of the Convention under its civil limb to be applicable, there must be a genuine and serious dispute over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law, and the result of the proceedings must be directly decisive for the right in question. In our view, these elements are absent in the present case.

4. The Court’s case-law has already gone quite far in recognising the existence of a “right” under the civil limb of Article 6 by developing a wider approach, according to which the “civil” limb has covered cases which might not initially appear to concern a civil right but which may have direct and significant repercussions on a private pecuniary or non-pecuniary right belonging to an individual ( see Denisov v. Ukraine [GC], no. 76639/11, § 51, 25 September 2018). Most notably, the Court has done so in order to oppose any attacks on the rule of law by protecting judges in matters such as judicial discipline, employment disputes, salary, retirement benefits and so on.

5. The present judgment clearly goes even further by suggesting that when a parliament is entrusted with electing members of a judicial council and fails to do so because of a political deadlock or for some other reason, Article 6 § 1 would require candidates for that judicial council to have individual access to a court. To reach such a conclusion, the majority have gone very deeply into the interpretation of the domestic law, in particular Article 23 § 2 of the Constitution in the light of the exercise of the right under section 573 of Law no. 6/1985 (see paragraph 103 of the judgment). Such interpretation is, as a matter of principle, not the Court’s task. In the present case we find such an interpretation, which is, moreover, not based on any decisions of domestic courts, wholly unconvincing.

6. As mentioned in paragraphs 26–28 of the present judgment, Article 23 § 2 of the Spanish Constitution provides that citizens “have the right of access on equal terms to public functions and positions, in accordance with the requirements determined by law”, i.e. here the procedure relevant to the election of judges to the GCJ established by Law no. 6/1985 (see paragraphs 34 et seq. of the judgment). It seems to be rather evident that the applicants’ complaint has nothing to do with the principle of equal access to public positions. Instead, the real issue at stake is the inaction of Parliament. To find in these circumstances the existence of a “civil right” and, in any event, a right of individual access to a court is a far cry from any direct and significant repercussions on a private pecuniary or non-pecuniary right belonging to the applicants.

7. Furthermore, we are unable to agree with the conclusion that challenging parliamentary inaction could be understood as a “genuine and serious” dispute, or with the assessment that the outcome of the amparo proceedings before the Constitutional Court would be “directly decisive” for the appointment of the applicant candidates to the GCJ. Even assuming that the applicants may have had a judicial remedy in respect of procedural irregularities arising during the process resulting in the shortlisting of candidates for the GCJ, that remedy would relate only to the first stage of the process, but not to the second stage, after the setting-up of a list, namely the selection process by Parliament on the basis of that list. The choice of the Spanish legislator to vest Parliament with the remit of electing members of the GCJ means that there is an inevitable political element in the taking of this decision. In other words, even if the outcome of the amparo proceedings had been positive for the applicants, they could not possibly have been directly decisive for the right in question, as no court could oblige members of Parliament to vote at all, let alone in support of any of the applicants.

8. By way of conclusion we would like to emphasise that excessive use of the line of argument as to the applicability of the civil limb of Article 6, as summarised most recently in Grzęda (cited above), in order to address any dysfunction related to the judiciary, can hardly be considered an appropriate exercise of the powers of the Court.

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence

Represented by

1.

53193/21

Lorenzo Bragado v. Spain

22/10/2021

Juan Luis LORENZO BRAGADO 1962 Santa Cruz de Tenerife

Vicente Jesús TOVAR SABIO

2.

53707/21

Jaén Vallejo v. Spain

Manuel María JAÉN VALLEJO 1953 Madrid

3.

53848/21

Garcia de Yzaguirre v. Spain

Mónica GARCIA DE YZAGUIRRE 1962 Las Palmas de Gran Canaria

4.

54582/21

Estevez Benito v. Spain

Rafael ESTÉVEZ BENITO 1973 Caceres

5.

54703/21

Tardon Olmos v. Spain

Maria TARDON OLMOS 1957 Madrid

6.

54731/21

Baena Sierra v. Spain

Jose Antonio BAENA SIERRA Malaga

[1] The governing body and collegiate representation of the Chamber, consisting of the President of the Congress, four Vice-Presidents and four Secretaries. They are elected by the Chamber at the beginning of the legislature, using a system that favours their distribution among different parliamentary groups. The Bureau is responsible for internal government and the organisation of parliamentary work, such as programming the general lines of action of the Chamber, coordinating the work of its different bodies.

[2] The body through which the parliamentary groups participate in organising the work of the Chamber. It consists of the President of Congress and the spokespersons of the groups. The main function is to set the agenda for the plenary sessions. It must be consulted on, inter alia , the preparation of the calendar and the ordering of work.

[3] Aquilina, K. “The Independence of the Judiciary in Strasbourg: Judicial Disciplinary Case Law: Judges as applicants and national judicial council as factotums of respondent states”, in de Albuquerque P.P., Wojtyczek K. (eds) Judicial power in a globalized world. Liber Amicorum Vincent De Gaetano , Springer, Heidelberg, 2019.

[4] See, for instance, the repeated warnings of Judge Harutyunyan in Harutyunyan, A. “The Independence of Judiciary Within the Political Dimension”, in Elósegui, M., Miron, A. and Motoc, I (eds), The Rule of Law in Europe. Recent Challenges and Judicial Responses , Springer, Heidelberg, 2021, pp. 61-68.

[5] See Seibert-Fohr, A. “Judges’ Freedom of Expression: An Ambivalent Relationship”, in Elósegui, M., Miron, A. and Motoc, I. (eds), The Rule of Law in Europe. Recent Challenges and Judicial Responses , Springer, Heidelberg, 2021, pp. 89-110.