FOURTH SECTION
DECISION
Application no. 12628/09
Violina Stancheva DZHIDZHEVA-TRENDAFILOVA
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 9 October 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 14 January 2009,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Violina Stancheva Dzhidzheva-Trendafilova, is a Bulgarian national who was born in 1953 and lives in Sofia. She was represented before the Court by Mr S. Trendafilov, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their agents, Ms N. Nikolova and Mr V. Obretenov, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The competition based on performance appraisal
4. In the State Gazette of 5 February 2008 the Supreme Judicial Council published a notice for a competition based on performance appraisal for five posts of judge at several administrative courts (“the competition”).
5. Fifty candidates applied for the vacant posts.
6. On 15 February 2008 the applicant filed an application to take part in the competition for the vacant posts at the Sofia City Administrative Court and the Sofia Regional Administrative Court. There were two vacant posts in the former and one in the latter.
7. Thereafter, the applicant and all the other candidates were subjected to performance appraisals by the Supreme Judicial Council’s committee on proposals and performance appraisals of judges (“the committee”). Some of these were carried out in the context of a separate competition.
8. On the basis of the committee’s recommendation, on 10 and 31 July 2008 the Council determined an overall rating for each candidate in accordance with section 193(1) of the Judiciary Act 2007. All but two of the candidates obtained the rating “very good”, the highest possible rating. The applicant was one of the forty-eight candidates in that category.
9. At its session on 31 July 2008, under item 1.2 of the agenda, the Council then proceeded to rank the candidates in accordance with section 193(2) and (3) of the Judiciary Act 2007, on a proposal from the committee’s chairman, and listed them in order of merit, grade and length of service. The list contained fifty candidates and the applicant was ranked eighteenth on the list. Out of the seventeen candidates ranked higher than the applicant, at least twelve had applied for the same posts for which she had applied.
10. Finally, under item 1.3 of the agenda, the Supreme Judicial Council, relying on section 194(1) of the Judiciary Act 2007, took a vote in respect of each candidate in order to decide whether or not to promote him or her to the post of judge at the relevant administrative court, until all the vacant posts had been filled.
11. The voting, which was conducted in secret, followed the order in which candidates were ranked on the list and continued until all the vacant posts were filled.
12. According to the full text of the minutes of the Council’s session, the first twelve candidates did not obtain the requisite majority of thirteen votes and their applications were therefore rejected. Candidate number thirteen obtained one of the two vacant posts at the Sofia City Administrative Court. The voting then continued. The applicant, who was eighteenth on the list, obtained twelve votes in her favour for the posts in one of the two courts for which she had applied and eleven votes in her favour for the post in the other court. As the minimum number of votes required were thirteen (see paragraph 21 below), her applications were rejected (items 1.3.18 and 1.3.18.1 on the agenda). The voting then continued. As regards the posts for which the applicant had applied, the candidate ranked twenty-seventh obtained thirteen votes in her favour and was appointed to the post of judge at the Sofia Regional Administrative Court, and the candidate ranked forty‑seventh obtained sixteen votes and was appointed to the second vacant post at the Sofia City Administrative Court (items 1.3.27.1. and 1.3.47. on the agenda). As all the vacant posts had been filled at that point, no voting took place with regard to the remaining three candidates.
13. Other than the number of votes for and against each candidate and the number of abstentions, no further information or reasons were given in the minutes of the session as to why, on what basis and in application of what criteria the Council had voted the way it did for each candidate and why certain judges had been promoted or transferred to the vacant posts while others had not.
2. The appeal to the Supreme Administrative Court
14. On 6 August 2008 the applicant appealed to the Supreme Administrative Court against the decisions of the Council adopted under item 1.3 of the agenda of its session of 31 July 2008 (“the appeal”). She argued that the decisions had been adopted in contravention of the applicable legislation, since the Council was required under section 194(1) of the Judiciary Act 2007 to fill the vacant posts by following the order in which the successful candidates were ranked. She considered that her rights had been violated when, instead of her, the Council had promoted to the vacant posts two persons ranked below her in the list, in twenty-seventh and forty-seventh place. She further considered that the whole competition procedure had been violated because, in comparison with her, those persons were on lower grades and had a shorter period of service.
15. On 11 August 2008 the Council officially informed the applicant, by way of an extract from the minutes of the session of 31 July 2008, of its vote of that date by which it had decided not to promote her to the vacant posts. Apart from the number of votes for and against her promotion, no further information or reasons were given as to why the Council had voted the way it had.
16. On 24 and 27 October and 14 November 2008 the applicant supplemented her appeal with the extract from the minutes sent to her on 11 August 2008, together with proof of her grade, length of service and performance appraisal and copies of her employment and insurance records.
17. At a hearing on the applicant’s appeal held on 19 November 2008 the Supreme Administrative Court declared the case ready for decision.
18. In a judgment of 3 December 2008 the Supreme Administrative Court dismissed the applicant’s appeal, holding, inter alia, as follows:
“Section 193(2) of the Judiciary Act provides that the [Council] must rank [the candidates] for each post according to the results of the performance appraisals. Paragraph 3 of the same text stipulates that when several candidates for the same post have the same rating in the performance appraisals, priority is given to the candidate on the highest grade. When the candidates are also on the same grade, priority is given to [the candidate] who has served longest in the judiciary.
The ranking of the candidates for the posts of judge at the Sofia City Administrative Court and the Sofia Regional Administrative Court is in compliance with the law as regards the overall rating [in the performance appraisal], grade and length of service, whereby the requirements of section 193(3) of the Judiciary Act are also taken into account. The order in which candidates are placed [in the ranking, drawn up] in accordance with the criteria in the text cited [above] for determining priority (grade and length of service) does not oblige the [Council] to appoint candidates to the vacant posts in the order in which they were ranked. It is obliged to vote on candidates’ promotion or transfer [to the vacant posts] in the order in which they are ranked until the vacant posts are filled, as required by section 194(1) of the Judiciary Act. Acting on the basis of operational independence, the [Council] decides on promotion to a post at its own discretion, which includes [an assessment] of candidates’ inherent professional and ethical qualities. This [right to] choose is conferred on the appointing body as part of its discretionary powers and is not subject to judicial review.
The complaint concerning the lack of reasoning is manifestly ill-founded. The factual grounds and the specific reasons for adopting the impugned decisions are contained in the documentary evidence in the administrative file and the statements [made by] the members of the [Council]. The positive assessments made in the proposal of the [Council’s] committee on performance appraisals regarding the professional and ethical qualities of [the persons ranked in twenty-seventh and forty-seventh place] were the reasons for the decisions to promote them, [which] predate the adoption of these decisions.
In view of the above considerations, the court holds that the appeal by [the applicant] is manifestly ill‑founded and, as such, should be dismissed.”
19. The judgment was not subject to appeal and therefore became final.
B. Relevant domestic law and practice
1. The relevant provisions of the Judiciary Act 2007
20. The Act came into force in August 2007. The provisions on competitions for career development (promotion) and transfer of judges, as in force at the relevant time and until 1 January 2011, provided as follows:
Part II
Competitions for appointment, promotion and transfer of
judges, prosecutors and investigating judges
...
Section 189
“(1) Vacant posts in the courts ..., other than those [at entry level], shall be ... filled following a competition carried out on the basis of performance appraisal.
...”
Section 192
“(1) The committee on proposals and performance appraisal of judges ... shall appraise the performance of every candidate satisfying the requirements for the available post.
...”
Section 193
“(1) The chairperson of the committee on proposals and performance appraisal of judges ... shall submit to the Supreme Judicial Council a reasoned opinion, summarising the results of the performance appraisal for each candidate.
(2) The Supreme Judicial Council shall rank [the candidates] for each post in accordance with the results of the performance appraisal.
(3) If several candidates for the same post have the same result in the performance appraisal, the candidate on the highest grade shall have preference. If the candidates also share the same grade, preference shall be given to the candidate who has served longest in the judiciary.”
Section 194
“(1) The Supreme Judicial Council shall adopt a decision to promote or transfer judges ... by following the order of ranking until the vacant posts are filled.
(2) The decision under paragraph 1 may be appealed against [to the Supreme Administrative Court].
...”
Part IV
Performance appraisal. ...
Section 196
“A performance appraisal shall be carried out:
...
2. For the purpose of a promotion or transfer;
...”
Section 197
“The assessment of [a] judge’s ... qualifications shall be carried out on the basis of general and specific criteria.”
Section 198
“(1) The general criteria for the performance appraisal of a judge ... shall be:
1. the number, type and complexity of files and cases;
2. compliance with deadlines;
3. the number of decisions upheld and repealed and the grounds given;
4. the presence of readily comprehensible and justified reasoning of the decisions;
5. the findings of the inspections carried out by the Inspectorate of the Supreme Judicial Council;
6. the existence of reprimands [against] or incentives [for the judge] during the period covered by the performance appraisal;
7. [the judge’s] adherence to the professional ethical rules for judges ...;
(2) For the purpose of the performance appraisal, the overall workload in the relevant court’s area of jurisdiction ..., as well as the workload of the judge being appraised ..., compared with that of other judges ... at the same [court], shall also be taken into consideration.”
Section 199
“(1) The specific criteria for the performance appraisal of judges shall be:
1. compliance with the schedule for conducting court hearings;
2. the ability to conduct court hearings and draft records of proceedings.
...”
Section 202
“(1) The overall rating from the performance appraisal may be positive or negative.
(2) The categories of positive overall rating shall be:
1. Satisfactory,
2. Good,
3. Very good.
...”
Section 207
“(1) The Supreme Judicial Council shall take a decision determining the overall rating [from the performance appraisal].
(2) The decision under paragraph 1 may also contain recommendations to the judge being appraised ..., the implementation of which will be taken into consideration in the next performance appraisal.
...”
Section 208
“(1) In the performance appraisal methodology, the indicators relating to the examination and disposal of files and cases shall be given the greatest weight.”
21. Under section 38(8) of the Act, Supreme Judicial Council’s decisions on proposals for the promotion or transfer of judges must be taken by a majority of the Council’s twenty‑five members. It follows that a minimum of thirteen votes are required for a decision to promote or transfer a judge.
22. The Council’s decisions concerning the appointment, promotion, demotion, transfer or dismissal of judges, prosecutors or investigators are adopted by secret ballot (Article 131 of the 1991 Constitution). All other decisions are adopted by open ballot (section 34(2) of the Judiciary Act 2007). Where a decision of the Council is adopted by secret ballot, it is considered – in the case of a decision not to adopt a proposal submitted to a vote – that the negative opinions, if any, expressed by members of the Council in relation to the proposal constitute the reasons for the Council’s decision (section 34(3) of the Judiciary Act 2007). In the case of a decision to adopt a proposal submitted to a vote, the grounds put forward in support of the proposal are deemed to be the reasons given by the Council (ibid.).
2. Decree No. 1 of 19 December 2007 on the procedure for and organisation of competitions for appointment, promotion and transfer of judges, prosecutors and investigating judges
23. This decree, adopted by the Supreme Judicial Council, regulates in greater detail the procedure established in the Judiciary Act 2007 for organising competitions within the judiciary for entry level posts, promotions and transfers, and for appointment to senior management posts.
24. In respect of promotions and transfers, section 37(4) provides that the performance appraisal must be carried out following the methodology approved by the Council. The latter regulates in significant detail the documentary information and data to be collected in respect of each judge being appraised and the appraisal forms to be completed. It details the performance indicators to be used when appraising judges, the scores to be allocated under each item and the weight that they are to be given in the performance appraisal. In particular, it provides that judges are also appraised on their adherence to the ethical rules for judges.
3. Case‑law concerning the application of the provisions on promotion and transfer of judges
25. In the examination of appeals against Supreme Judicial Council decisions refusing promotion to judges or prosecutors, the Supreme Administrative Court, in a series of judgments in 2008, 2009 and 2010, consistently interpreted the provisions of the Judiciary Act 2007 as meaning that the ranking of the candidates determined the order in which the Council had to vote but could not guarantee the outcome of the vote. In all cases the court held that the Council, as the body in which the power to appoint and promote judges and prosecutors was vested, was free to decide on these matters. Judicial review of the lawfulness of its decisions did not extend to the Council’s assessment of the candidates’ qualities (see, among many others, реш. № 11134 от 27 октомври 2008 г. по адм. д. № 10468/2008 г., ВАС, VІІ о., and реш. № 3548 от 18 март 2010 г. по адм. д. № 16558/2009 г., ВАС, VІІ о.).
4. Ethical rules for judges
26. The ethical rules for judges, adopted by the Supreme Judicial Council on 10 March 2004 and replaced on 27 May 2009 by the Judicial Officers’ Code of Ethics, detailed the special requirements imposed on judges as to the manner in which they were to conduct themselves in their professional, private and public lives.
5. Composition of the Supreme Judicial Council
27. The Supreme Judicial Council has the power to appoint, promote, demote, transfer and dismiss – including by way of disciplinary punishment – judges, prosecutors and investigators (Article 129 § 1 and Article 130 § 6 (1) and (2) of the 1991 Constitution). The Council consists of twenty‑five members. The presidents of the Supreme Court of Cassation and of the Supreme Administrative Court and the Chief Prosecutor are members as of right (Article 130 § 1). The remaining twenty‑two members have to be lawyers possessing high professional and moral qualities and having at least fifteen years of professional experience (Article 130 § 2). Eleven of them are elected by the National Assembly and eleven by the judicial authorities (Article 130 § 3). Out of the latter eleven members, the judges elect six, the prosecutors four and the investigators one (section 17(3) of the Judiciary Act 2007). The term of office of the Council’s members is five years, and is not immediately renewable (Article 130 § 4 of the Constitution). The Council’s sessions are presided by the Minister of Justice, who cannot however take part in voting (Article 130 § 5).
C. Other relevant material
28. The European Commission has repeatedly expressed concern about appointment and promotion decisions in the Bulgarian judiciary. In its 2011 Report to the European Parliament and the Council on Progress in Bulgaria under the Cooperation and Verification Mechanism, it stated, inter alia: “The quality and transparency of several important appointments within the judiciary since the beginning of this year have been questioned, leading to unprecedented public protests and a debate on possible constitutional amendments. In addition, allegations of corruption within the judiciary are still not pursued in a systematic way as recommended by the Commission.”
COMPLAINTS
29. The applicant complained, relying on Articles 6 and 13 of the Convention, that the decisions of the Supreme Judicial Council and the Supreme Administrative Court in her case had been arbitrary and in contravention of domestic legislation, and that the proceedings had been unfair. In particular, the Council had failed to adhere strictly to the order of ranking determined on the basis of the results of the performance appraisal and had failed to give any reasons for thus departing from the ranking. Furthermore, the Supreme Administrative Court had upheld the Council’s unlawful decision arbitrarily, without providing full judicial review.
30. In her submissions of March and April 2010 in reply to the Government’s observations, the applicant also formulated new complaints which she had neither made in her application nor raised in the domestic proceedings. These concerned: (a) the allegedly unequal standing of the parties to the proceedings before the Supreme Administrative Court and the lack of independence of its judges resulting from the fact that the Council, the other party to the proceedings, was vested with the power to decide on the careers of all Bulgarian judges; and (b) an allegation that the Council had not in fact voted on the application of one of the candidates who had then been promoted.
THE LAW
A. Complaints submitted in March and April 2010
31. The Court, noting that these complaints were submitted more than six months after the judgment of the Supreme Administrative Court of 3 December 2008, which was the final decision in the applicant’s case, finds that they must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention as being submitted out of time.
B. Remaining complaints
1. The parties’ submissions
(a) The Government
32. Referring to the Court’s decisions in the cases of Trencheva‑Rafailova v. Bulgaria ((dec.), no. 13885/04, 5 January 2010) and Pitkevich v. Russia ((dec.), no. 47936/99, 8 February 2001), the Government submitted that Article 6 of the Convention did not apply in the present case.
33. Alternatively, the Government invited the Court to reject as unfounded the applicant’s allegations of unfairness and arbitrariness in the proceedings before the Supreme Administrative Court. In particular, that court had interpreted section 194(1) of the Judiciary Act 2007 and the remaining relevant domestic provisions as meaning that the Supreme Judicial Council was obliged to vote on the candidates in the order in which they had been ranked but was by no means required to appoint them solely on the basis of their ranking. The ranking did not guarantee an appointment. The Council was vested with the power to make a free assessment of the candidates by means of a final vote. In the applicant’s case only two Council members had voted for her appointment; twelve others had voted against and the remaining five had abstained.
34. The Government maintained that this clear interpretation of domestic law was also to be found in a number of other judgments and was, moreover, consonant with the manner in which similar issues were regulated in the Civil Servants Act, the Ministry of the Interior Act and the Labour Code.
(b) The applicant
35. The applicant replied that, following the Court’s judgment in the case of Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑II), there was no doubt that Article 6 applied in her case. Bulgarian law provided for judicial review of decisions on the promotion of judges, and Article 6 was therefore applicable.
36. The applicant further maintained that the Council had refused to promote her in violation of domestic law and procedure and that the Supreme Administrative Court had given an arbitrary judgment upholding the Council’s decision without providing full judicial review, thus leaving unfettered discretion to the Council and opening the door to corruption and political influence in the judicial system. Acknowledging that the Court was not a fourth instance in matters of interpretation of domestic law, she submitted, inter alia, that the interpretation of sections 193 and 194 of the Judiciary Act 2007 given by the Supreme Administrative Court had been utterly arbitrary and in violation of Article 6, which required a genuine, not a formalistic and superficial examination of the dispute. In the applicant’s view, the wording of section 194 made it clear that the Council was bound by the ranking produced as a result of the performance appraisal procedure and did not have discretion. It would make little sense to set out in law detailed performance appraisal rules and provide for strict ranking of candidates in the context of promotion procedures and, at the same time, to allow discretion in reaching a promotion decision. In this respect, the Supreme Administrative Court had probably followed its earlier practice and had failed to revise it in the light of the Judiciary Act 2007. The applicant also submitted that the impugned decision by the Council had not been accompanied by reasons and that the Supreme Administrative Court had failed to acknowledge this major procedural deficiency.
37. The applicant further maintained that the performance appraisal procedure before the Supreme Judicial Council had been unfair as the calculation of the relevant work experience had not followed clear rules – in the case of certain candidates the total length of their work experience had allegedly been taken into account, while for others, including herself, only the work experience as a judge had been considered relevant.
2. The Court’s assessment
(a) Complaints concerning the procedure before the Supreme Judicial Council
38. In so far as the applicant complained, relying on Articles 6 and 13 of the Convention, of the manner in which the performance appraisal and promotion procedures had been carried out by the Supreme Judicial Council, the alleged lack of clear and transparent criteria in that respect, the Council’s decision not to appoint her, and the alleged lack of effective remedies in that regard, the Court observes that neither Article 6 nor any other provision of the Convention or its Protocols guarantees, as such, a right to appointment or promotion in the civil service (see Glasenapp v. Germany, 28 August 1986, §§ 48-49, Series A no. 104; Kosiek v. Germany, 28 August 1986, §§ 34-35, Series A no. 105; Vogt v. Germany, 26 September 1995, § 43, Series A no. 323; and Wille v. Liechtenstein [GC], no. 28396/95, §§ 40-41, ECHR 1999-VII), or the right to hold a public post related to administration of justice (see Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004). Nor do they guarantee, as such, a right to a fair competition procedure in an employment or a civil service context. As for Article 13 of the Convention, it applies only to claims which fall within the scope of one of the substantive provisions of the Convention or its Protocols (see, among other authorities, Kaplan v. the United Kingdom, no. 7598/76, Commission’s report of 17 July 1980, Decisions and Reports (DR) 21, pp. 35-36, § 173; M. v. France, no. 9984/82, Commission decision of 17 October 1985, DR 44, p. 54; and McKenzie v. the United Kingdom, no. 22301/93, Commission decision of 1 December 1993, unreported). It follows that, while promoting the best candidates for judicial posts and ensuring objectivity in competitions for such posts is undoubtedly important for the independence of judges and the proper functioning of national judicial systems, these issues cannot be examined by the Court in the context of a complaint by an unsuccessful candidate for a judicial post against the decision refusing her application for promotion.
39. Therefore, the applicant’s complaints, in so far as they concern the Supreme Judicial Council’s procedure and decision and the alleged lack of effective remedies in that respect, are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
40. It remains to be examined whether, as alleged by the applicant, there was a breach of Article 6 § 1 of the Convention in that the proceedings before the Supreme Administrative Court determined her civil rights in an arbitrary and unfair manner.
(b) Complaints concerning the proceedings before the Supreme Administrative Court
41. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
(i) Applicability of Article 6
42. The Court must first address the issue whether the claim asserted by the applicant concerned a “right” which could arguably be said to be recognised under Bulgarian law and, if so, whether that right was a “civil” right within the meaning of Article 6. The scope of application of Article 6 extends only to disputes over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law. Article 6 § 1 does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States (see, among other authorities, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV).
43. The applicant claimed before the Supreme Administrative Court that she had a right under domestic law to an automatic decision by the Council appointing candidates strictly in the order of their ranking under section 193 of the Judiciary Act 2007. The applicant also invoked a general right to a lawful and fair promotion procedure. Her claim that these alleged rights had been breached by the Council was the subject matter of the domestic judicial proceedings (see paragraphs 14‑19 above).
44. The Court observes that, in accordance with the Supreme Administrative Court’s consistent jurisprudence, the Judiciary Act 2007 did not provide for a right to be promoted on the sole basis of the ranking obtained in the performance appraisal procedure (see paragraph 25 above).
45. It is nonetheless noteworthy that the impugned proceedings took place relatively soon after the entry into force of the Judiciary Act 2007 and that it is only with hindsight that the consistency of the domestic practice denying the existence of the above‑mentioned alleged right can be observed. This point is significant as the existence of a “right” must be determined by reference to the time when the applicant instituted the domestic proceedings in issue. In principle, later case‑law developments cannot remove, retrospectively, the arguability of the applicant’s claim (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 89, ECHR 2001-V).
46. The Court further notes that there may be doubts as to whether the proceedings before the Supreme Administrative Court were decisive for the determination of the applicant’s alleged right to be appointed. The Court observes that, even if the Supreme Administrative Court had accepted the applicant’s argument that the correct interpretation of domestic law was that the Council should have automatically appointed the candidates by order of their ranking, it is difficult to see how that could have affected the outcome of the applicant’s case, seeing that she did not argue, and could not possibly have argued, that such an approach would have resulted in her appointment. In particular, there were only five vacant posts, the applicant had applied for three of them, she was ranked number eighteen and, among those ranked higher than her, at least twelve candidates had applied for the same posts for which she had applied (see paragraphs 4‑9 above).
47. It is significant, however, that the Supreme Administrative Court did not deal with the above-mentioned issue and examined the applicant’s submissions on the correct interpretation of domestic law.
48. The Court also takes into consideration the fact that the applicant invoked a general right to a lawful and fair promotion procedure and that the Supreme Administrative Court dealt with this argument on the merits, implicitly recognising such a right under domestic law (see paragraph 18 above, and distinguish Trencheva‑Rafailova, cited above, where the courts refused to examine a challenge to the outcome of a competition for admission to employment).
49. The Court accepts, therefore, that the dispute before the Supreme Administrative Court was a dispute about a “right” within the meaning of Article 6 of the Convention and its case‑law (see Fiume v. Italy, no. 20774/05, § 35, 30 June 2009, and Juričić v. Croatia, no. 58222/09, § 52, 26 July 2011, with further references).
50. That being so and seeing that Bulgarian law provides for judicial examination of such disputes, it can be accepted that the right was a “civil” one and that Article 6 applied (see Vilho Eskelinen and Others, § 61, and Juričić, §§ 53‑56, both cited above).
(ii) Whether the Supreme Administrative Court decided arbitrarily or the proceedings were otherwise unfair
51. In the applicant’s case, the Supreme Administrative Court gave a detailed answer to the applicant’s main argument, mentioned above. It adopted the view that the Council, as the body vested with the power to appoint, promote and dismiss judges, was not bound by the ranking resulting from the performance appraisal procedure and that appointment decisions were based on voting in the Council. It interpreted the relevant provisions of the Judiciary Act 2007 as meaning that the voting had to be carried out in the order in which candidates had been ranked until the vacant posts were filled, and did not accept that the law predetermined the outcome of the voting. The Supreme Administrative Court also examined the applicant’s other arguments of alleged unlawfulness or procedural irregularities and set out its reasons for rejecting them (see paragraph 18 above). While Article 6 requires that courts should adequately state the reasons on which they have based their decisions, this requirement does not include an absolute rule that a detailed answer to every argument must be given (see, for example, Helle v. Finland, 19 December 1997, § 55, Reports of Judgments and Decisions 1997‑VIII, and Goranova‑Karaeneva v. Bulgaria, no. 12739/05, § 67, 8 March 2011).
52. The Court reiterates that it is not a court of appeal from the decisions of the domestic courts. Its task under the Convention is to ascertain whether the proceedings as a whole were fair (see García Ruiz v. Spain [GC], no. 30544/96, §§ 28‑29, ECHR 1999‑I, and Kern v. Austria, no. 14206/02, § 61, 24 February 2005). It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The role of the Court is, above all, to verify whether the effects of such interpretation are compatible with the Convention (see Miragall Escolano and Others v. Spain, no. 38366/97, §§ 33‑39, ECHR 2000‑I).
53. It is true that, in the context of complaints about arbitrary interference with rights protected under several Convention provisions, the Court has accepted that, even though it has only limited power to review compliance with domestic law, it may draw appropriate conclusions under the Convention where it observes that the domestic courts have applied the law in a particular case manifestly erroneously or so as to reach arbitrary conclusions (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007‑I; Kuznetsov and Others v. Russia, no. 184/02, §§ 70‑74 and 84, 11 January 2007; Păduraru v. Romania, no. 63252/00, § 98, ECHR 2005‑... (extracts); Sovtransavto Holding v. Ukraine, no. 48553/99, §§ 79, 97 and 98, ECHR 2002‑VII; Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000‑I; and Tsirlis and Kouloumpas v. Greece, 29 May 1997, §§ 59‑63, Reports 1997‑III).
54. It is not necessary in the present case to define the threshold between errors of law, which are outside the Court’s control, and arbitrariness in violation of the Convention. It is sufficient to observe that the view taken by the Supreme Administrative Court on the correct interpretation of the Judiciary Act 2007 was maintained consistently and without variations in Bulgarian judicial practice (see paragraph 25 above) and that it was based on relevant arguments, such as that the Act’s legal provisions could not be interpreted as eliminating the significance of voting, which was the statutory method whereby the Supreme Judicial Council took its decisions, that the result of the performance appraisal was only one of the elements in the promotion procedure, and that the judicial review of the Council’s decision did not extend to the Council’s assessment of candidates’ qualities. The Court notes in particular that had the legislator intended the Council’s decision to be a mere rubber stamp of the ranking proposed by the Committee set up under Section 192 of the Judiciary Act 2007, this would have been clearly reflected in the text of the Act.
55. The applicant criticised this approach, underlining the importance of clear and transparent criteria for the promotion of judges. As the Court has already found, however, despite the seriousness of these issues and their impact on the independence of judges and the proper functioning of national judicial systems, they fall outside the Court’s competence in the context of a complaint by an unsuccessful candidate for a judicial post (see paragraphs 38‑39 above). In a case concerning such a complaint, even if the system of promotion of judges in Bulgaria has been the subject of criticism (see paragraph 28 above), it is not the Court’s role to express a view on the correctness or desirability of a given approach to the promotion of judges, as enshrined in domestic law and practice, or to instruct the national courts on how to interpret domestic law.
56. As to the applicant’s argument that the Supreme Administrative Court did not provide the requisite scope of judicial review, the Court refers to its observations, above, to the effect that the consistent interpretation of the relevant provisions by the domestic courts was based on the understanding that the Council was vested with the right to make a final assessment of the candidates by way of voting, irrespective of the ranking proposed by the Committee. The applicant has not alleged that in the domestic proceedings in her case she made specific allegations of corruption or undue political pressure tainting the Council’s decision or that, had she done so, the Supreme Administrative Court would have refused to take them into consideration. Therefore, the applicant’s grievance about the allegedly insufficient scope of the judicial review is indistinguishable from her submissions, examined above, about the allegedly wrong and arbitrary interpretation of the relevant domestic law.
57. In sum, the Court does not find it established that, given the state of the relevant domestic law on the promotion of judges, the Supreme Administrative Court decided arbitrarily, as alleged by the applicant, or that the proceedings were otherwise unfair. It concludes that the applicant’s remaining complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy