FIRST SECTION
DECISION
Application no. 58740/11
F.G.
against Greece
The European Court of Human Rights (First Section), sitting on 25 April 2017 as a Chamber composed of:
Kristina Pardalos, President,
Ledi Bianku,
Aleš Pejchal,
Armen Harutyunyan,
Pauliine Koskelo,
Tim Eicke, judges,
Michail Margaritis, ad hoc judge,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 29 August 2011,
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, Mr F.G., is a Greek national who was born in 1946 and lives in Athens. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Ms S. Asimakopoulou, a lawyer practising in Athens.
2. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mr K. Georgiadis, Senior Advisor at the State Legal Council.
3. Mr L.-A. Sicilianos, the judge elected in respect of Greece, withdrew from sitting in the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Mr Michail Margaritis to sit in his place (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court).
4. On 3 December 2013 the application was communicated to the Government.
A. The circumstances of the case
5. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
6. At the time the events took place the applicant was a legal counsellor at the State Legal Council (Νομικό Συμβούλιο του Κράτους).
7. On September 2008, there were three vacant posts at the rank of vice-president of the State Legal Council. The first step of the selection procedure consisted of a proposal by the Minister of Economics and Finance, which included a list of all eligible legal counsellors ranked on the basis of seniority. Among the thirty-six legal counsellors who fulfilled the formal criteria, the applicant was ranked sixth.
8. At its meeting of 8 September 2008, the Cabinet of Ministers (“the Cabinet”), following the proposal by the Minister of Economics and Finance, unanimously decided to appoint as vice-presidents to the State Legal Council Mr N.M., Mr D.A. and Mr N.K, who were second, eighth and fourteenth respectively on the list. The reasoning of the decision stated that they “[had] proved superior to the rest of their colleagues under consideration for the posts, as [was] clear from the relevant proposal of the competent Minister, which [had been] accepted by the Cabinet following assessment of each of the eligible legal counsellor’s files and the ministers’ discussion ...”
9. The proposal of the Minister of Economics and Finance included the qualifications of the eligible staff members, in particular the year of their appointment, their ranking and salary changes, their assignments and disciplinary proceedings and it concluded that:
“... having assessed all of the above-mentioned facts relating to the service of the persons under consideration, as well as other details of their personal service files and ... their general academic training, their moral character, their diligence and their administrative qualifications; having also taken into account the generally formulated opinion for each one and their seniority ranking, I PROPOSE that the following be chosen and promoted to fulfil the three (3) vacant posts of vice-president of the State Legal Council ... [the names of the three accepted candidates followed, handwritten]”.
10. From the minutes of the Cabinet meeting it appears that its duration was forty-five minutes and included other items on the agenda as well.
11. On 10 September 2008, the Presidential Decree by which the procedure was completed was issued and published in the Official Gazette.
12. On July 2009, the same procedure was followed for filling another two vacant posts to the rank of vice-president of the State Legal Council. Thirty-one legal counsellors were eligible for promotion, including the applicant, who was ranked fourth on the list on the basis of seniority.
13. At its meeting of 1 July 2009, the Cabinet, following the proposal by the Minister of Economics and Finance, unanimously decided to appoint to the vacant posts Mr B.K. and Mr I.S., who were sixth and tenth respectively on the list. The reasoning of the decision, as well as the Minister’s proposal, were identical to the 2008 procedure.
14. The duration of the Cabinet meeting was one hour and forty minutes and the agenda included other items as well.
15. On 2 July 2009, the Presidential Decree by which the procedure was completed was issued and published in the Official Gazette.
2. Proceedings before the Supreme Administrative Court
(a) First set of proceedings
16. On 14 November 2008, the applicant lodged an application for annulment (αίτηση ακύρωσης) of the Presidential Decree dated 10 September 2008 with the Supreme Administrative Court (Συμβούλιο της Επικρατείας), on the grounds of lack of sufficient reasoning in the contested decision and of his having been manifestly superior to two of the three promoted legal counsellors, who had been ranked lower than him on the list and yet had been promoted.
17. On 13 April 2009, the applicant was informally informed that the State Legal Council had applied to have the case examined by the Plenary of the Supreme Administrative Court and that the President had agreed to grant that request. On the same date, the applicant filed a written submission contesting that decision, relying, on one hand, on the fact that his views on the subject had not been heard prior to the decision and, on the other hand, on the fact that such a referral would result in further delay in the examination of his case. In particular, the applicant maintained that he had only a few years left before he reached compulsory-retirement age and the delay in the examination of his case would further diminish his chances of serving as vice-president of the State Legal Council. From the material in the Court’s possession, it appears that the applicant did not receive a reply to his submission. By a decision of the President of the Supreme Administrative Court dated 21 April 2009, the case was referred to the Plenary of that court.
18. The date of hearing before the Plenary of the Supreme Administrative Court was scheduled for 25 September 2009. The Court adjourned the hearing until 5 February 2010. On that date, the case was again adjourned on the grounds that there were three pending applications raising similar issues to the case under consideration and it would be better to examine the cases together. The hearing eventually took place on 7 May 2010.
19. By its judgment no. 1973/2011, published on 20 June 2011 and finalised on 25 August 2011 (δημοσίευση και καθαρογραφή), the Supreme Administrative Court dismissed the application for annulment of the Presidential Decree dated 10 September 2008. In its reasoning the court first pointed out that the application for annulment was admissible, as Article 90 § 6 of the Greek Constitution, which excluded the possibility of applications for annulment of decisions relating to promotions of judges, could not be applied by analogy. It then observed that owing to the State Legal Council’s special institutional role and the nature of the role of its President and vice-presidents, the Cabinet, when choosing the candidates who, in their view, had more substantive qualifications for those posts, enjoyed a wide degree of discretion, without being obliged to provide specific justification for their decisions, except for cases where an omitted candidate had been manifestly superior to the promoted candidates. It then noted that according to the minutes the Cabinet had chosen the candidates to be promoted by taking into account not only the competent Minister’s proposal but also other details from the candidates’ files and following discussion among its members. Lastly, it pointed out that from the material in their possession, the applicant had not been manifestly superior to the promoted candidates.
(b) Second set of proceedings
20. On 22 October 2009, the applicant lodged an application for annulment of the Presidential Decree dated 1 July 2009 with the Supreme Administrative Court, on the grounds of lack of sufficient reasoning in the contested decision and because he had been manifestly superior to the two promoted legal counsellors who had been ranked lower than him on the list.
21. By a decision of the President of the Supreme Administrative Court dated 1 March 2010, the case was referred to the Plenary of that court. The hearing was scheduled for 7 May 2010.
22. By its judgment no. 413/2011, published on 4 February 2011 and finalised on 4 March 2011, the Supreme Administrative Court dismissed the application for annulment on the same grounds as those stated in judgment no. 1973/2011 (see paragraph 18 above).
3. Subsequent developments
23. On 13 July 2010, the applicant, following a procedure similar to the one described in paragraphs 6-15 above, was appointed President of the State Legal Council.
B. Relevant domestic law
1. The Greek Constitution
24. The relevant Articles of the Greek Constitution read as follows:
Article 88
“2. The remuneration of judicial functionaries shall be commensurate with their office. Matters concerning their rank, remuneration and their general status shall be regulated by special statute ...”
“5. Retirement from the State legal service shall be compulsory upon attainment of the age of sixty-five years for all judges and prosecutors up to and including the rank of judge of a court of appeal or deputy prosecutor of a court of appeal, or a rank corresponding thereto. In the case of judges and prosecutors of a rank higher than the one stated, or of a corresponding rank, retirement shall be compulsory upon attainment of the age of sixty-seven years. In the application of this provision, 30 June of the year of retirement shall in all cases be taken as the date of attainment of the above age limit.”
Article 90
“5. Promotions to the posts of President or vice-president of the State Legal Council, of the Court of Cassation and of the Court of Auditors, shall be effected by Presidential Decree issued on the proposal of the Cabinet, upon selection from among the members of the respective Supreme Court, as specified by law ... The mandate of the President of the Council of State, of the Court of Cassation and of the Court of Auditors ... may not exceed four years, even if the judge or prosecutor holding this office has not reached the retirement age.”
Article 100A
“Matters relating to the establishment and functioning of the State Legal Council, as well as matters relating to the service status of functionaries and staff members who serve therein, shall be specified by law. The competence of the State Legal Council pertains mainly to the judicial support and representation of the State and to the recognition of claims against it or to the settlements of disputes with the State. The provisions of Articles 88 paragraphs 2 and 5, as well as of Article 90 paragraph 5 shall apply accordingly to the main staff of the State Legal Council.”
2. Law 3086/2002
25. The relevant sections of Law 3086/2002 (Organisation of the State Legal Council) and the status of its officers and employees, published in Official Journal A/324, read as follows:
Section 2
“The State Legal Council is responsible for judicially supporting the State ...”
Section 35
“1. The ranks of hierarchy of the State Legal Council’s members are the following: President, vice-president, legal counsellor, senior advisor, legal representative A, legal representative and associate legal assistant (Πρόεδρος, Αντιπρόεδρος, Νομικός Σύμβουλος, Πάρεδρος, Δικαστικός Αντιπρόσωπος Α΄. Δικαστικός Αντιπρόσωπος και δόκιμος Δικαστικός Αντιπρόσωπος).
2. Among members at the same rank, seniority is precedent, in accordance with the provisions of paragraph 1 of the preceding article ...”
Section 44
“2. Promotions
a) For the promotion of a member of the State Legal Council to a higher rank the following are required:
i) Vacancy in the higher rank, if places are structurally distinct,
ii) Completion of the statutory time in the rank currently occupied ...
iii) Possession of the necessary qualifications for the higher rank.
b) Promotion of members of the State Legal Council to the ranks of judicial representative A and senior advisor takes place by election among those who possess the necessary formal requirements and qualifications:
i) character and courage, ii) academic training, iii) judgment, perception and skills in understanding cases, iv) skills in formulating proposals and pleas, v) diligence, hard work and service performance, vi) decent behaviour in general and in particular in courts and in their relations with other services and authorities, vii) decent social behaviour, to an absolutely satisfying degree, so as to fully respond to the duties of the higher rank
c) Promotion of members of the State Legal Council to the rank of legal counsellor takes place following a “free vote” (κατ’ απόλυτη εκλογή). Deemed as eligible for promotion by free vote among those who possess the formal requirements are the members who possess the following to an excellent degree:
i) character and courage, ii) academic training, iii) diligence, hard work and service efficiency, and following a comparison, those who are promoted to fill the vacant posts are elected.
...
e) Promotion to the posts of President and vice-president is effected by Presidential Decree following a proposal by the Cabinet, which, upon the recommendation of the Minister of Economy and Finance, selects the ones who must be promoted among those who fulfil the legal requirements.
...
i) The post of vice-president of the State Legal Council is occupied by a legal counsellor who has been promoted following three years of service in the rank of legal counsellor.
j) The post of President of the State Legal Council is occupied by a vice-president or a legal counsellor who has been promoted following four years of service in the rank of legal counsellor.”
Section 48
“The members of the State Legal Council automatically retire from service:
...
b) the legal counsellors, who correspond to judges of the Court of Cassation, the vice-presidents, who correspond to vice-presidents of the Court of Cassation, and the President of the State Legal Council, who corresponds to the President of the Court of Cassation, [at the end of their] sixty-seventh year.
...
d) For the implementation of provisions a) and b) of the present paragraph, the day of retirement age is reached is considered to be 30 June of the year the member of the State Legal Council retires.”
3. Presidential Decree 18/1989
26. The relevant section of Presidential Decree 18/1989, which codifies the laws relating to the Supreme Administrative Court, reads as follows:
Section 47
“Legitimate interest. 1. An application for annulment against an administrative act can be lodged by any individual or legal person who is concerned by the act, or whose legitimate interests, even if non-pecuniary in nature, are infringed upon.”
Section 48
“An application for annulment can be lodged for the following reasons:
1) Incompetence on the part of the administrative authority which issued the act;
2) Infringement of an essential procedural requirement which had been set for the act;
3) Infringement of an essential provision of law;
4) Abuse of authority, when the administrative act per se bears all the elements of legality, but has been manifestly issued for other purposes than those for which it was enacted.”
4. Case-law of the Supreme Administrative Court
27. According to the case-law of the Supreme Administrative Court, when domestic law affords to civil servants the right to be considered eligible for promotion, this constitutes a sufficient legitimate interest enabling them to lodge an application for annulment for one of the reasons cited in Section 48 of Presidential Decree 18/1989 (see, for example, decision no. 2809/2012 of the Supreme Administrative Court).
COMPLAINTS
28. The applicant raised various complaints under Article 6 § 1 of the Convention. Firstly, he argued that the Supreme Administrative Court, by confirming the validity of the Cabinet decisions which, in the applicant’s view, had lacked sufficient reasoning, had infringed his right to access to a court. He further complained of the independence of the Supreme Administrative Court and the length of the proceedings before it. Lastly, he argued that the principle of equality of arms had been violated in his case.
THE LAW
29. The applicant complained under Article 6 of the Convention that his right to access to court had been violated by the Supreme Administrative Court’s judgments nos. 413/2011 and 1793/2011 by which it had been held that a limited judicial review had been sufficient as regards the administrative acts by which Mr N.M., Mr S.C. and Mr N.K in 2008, and Mr V.K. and Mr I.S. in 2009, had been promoted to the rank of vice-president of the State Legal Council. He also argued that the Supreme Administrative Court had not been “an independent and impartial tribunal” within the meaning of Article 6 of the Convention, as the Presidents and vice-presidents of that Court had been appointed by the executive. The applicant further complained that the principle of equality of arms had been breached in his case as the Supreme Administrative Court had decided to relinquish jurisdiction in favour of the Plenary of that court without having heard his views on the issue of relinquishment. Lastly, the applicant complained that the duration of the two set of proceedings before the Supreme Administrative Court had been excessive.
30. The Government contested those arguments.
31. Article 6 § 1 of the Convention, in its relevant part, provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
1. Submissions of the parties
(a) The Government’s submissions
32. As their main submission, the respondent Government firstly raised an objection that the complaints were incompatible ratione materiae with the provisions of the Convention.
33. The Government contested the applicability of Article 6 on two grounds, namely whether the proceedings before the domestic court were “directly decisive” for the applicant’s rights and whether he had a “right” which was “civil” in nature.
34. As regards the first grounds, the Government maintained that the results of the proceedings before the Supreme Administrative Court had not been directly decisive in relation to a civil right of the applicant. Even if the Supreme Administrative Court had annulled the contested procedure, this would not automatically have led to his promotion to the position of vice-President of the State Legal Council, but to a new procedure.
35. As regards the second grounds, the Government maintained that the dispute had been purely administrative in nature and not civil. Relying on the Court’s judgment in Pellegrin v. France ([GC] no. 28541/95, ECHR 1999-VIII), they submitted that a vice-president’s duties entailed direct participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State and that this position required the existence of a special bond of trust and loyalty between the civil servant and the State. In this connection, they contested the need for the Court to implement the criteria stated in the Court’s judgment in Vilho Eskelinen and Others v. Finland ([GC] no. 63235/00, ECHR 2007-II), which, in the Government’s view, was not pertinent in this particular case.
36. As regards the merits, the Government maintained that the proceedings before the Supreme Administrative Court had been equitable and that its judgments had been sufficiently reasoned. The applicant had not only not been deprived of his right of access to a court, but had in fact been able to have his case examined on the merits by the Plenary of the Supreme Administrative Court. The Supreme Administrative Court had ensured control of the statutory limits of exercise of administrative discretion, while at the same time acknowledging that those promotions had been subject to a limited scope of judicial review owing to the nature of the posts. In the Government’s view, the applicant complained of the outcome of the domestic proceedings and therefore, this part of the application should be rejected as inadmissible, as it was not the Court’s task to deal with errors of fact or law allegedly committed by domestic courts.
37. In addition, the Government also pointed out that the Supreme Administrative Court had satisfied the requirement of an independent tribunal and that the relinquishment of the section’s jurisdiction in favour of the Plenary had been due to the great importance of the case.
38. In respect of the complaint concerning the length of the proceedings, the Government submitted that they had not lasted an unreasonably long time. The delay in the first set of proceedings before the Supreme Administrative Court could be explained by its excessive workload, the complexity of the case which had raised serious issues of interpretation of the Greek Constitution and the Convention and the need to examine the applicant’s two applications for annulment together owing to their similar nature. As regards what was at stake for the applicant, the Government pointed out that even if the cases had been discussed earlier and the contested decisions of the Cabinet had been annulled, it would not have mattered for the applicant who had, in the meantime, been promoted to President of the State Legal Council. Taking into account the time that the proceedings before the Supreme Administrative Court had needed in order to be completed, there still would not have been sufficient time to repeat the promotions’ procedure before the applicant had been promoted to President of the State Legal Council.
(b) The applicant’s submissions
39. The applicant disputed the Government’s submissions. Relying on the Court’s judgment in Vilho Eskelinen and Others (cited above) and the criteria mentioned therein, he maintained that the civil character of his right was undisputed and he insisted that Article 6 applied as a rule in disputes concerning the careers of civil servants. In addition, he argued that Article 6 was applicable to this case, based on the fact that the domestic courts had proceeded with the examination of the case.
40. The applicant argued that the lack of sufficient reasoning in the Cabinet decisions regarding the promotions of legal counsellors ranked below him in the list for promotion to the posts of vice-president of the State Legal Council, had rendered the application for annulment ineffective and thus he had been deprived of his right of access to court. In this respect, he contested judgments nos. 1973/2011 and 413/2011 of the Supreme Administrative Court which held that the nature of those posts had rendered the provision of specific justification unnecessary, reversing the general principle of justification of the adverse administrative acts enshrined in Article 17 of the Code of Administrative Procedure. He also complained that the annulment of the decisions taken by the Cabinet regarding promotions in a situation where one candidate had been manifestly superior to the promoted candidate was an illusory and ineffective remedy, as such grounds were rarely accepted by the Supreme Administrative Court and in any case, it was not possible to comment on the details of the personal files of the other members, which were not accessible.
41. In addition, the applicant argued that the Plenary formation of the Supreme Administrative Court had not satisfied the requirements of independence. In particular, relying on the constitutional provision which stipulates that the vice-presidents and President of the Supreme Administrative Court are chosen by the Cabinet by selection from among the members of that court, he maintained that the domestic court had lacked independence in hearing his case in so far as the President and the two vice-presidents of the Supreme Administrative Court had been promoted in one of the two meetings of the Cabinet that he complained about.
42. The applicant also contended that the principle of equality of arms had been violated in his case, since his application for annulment had been referred to the Plenary Supreme Administrative Court following a request by the Legal Council of State, without him having had the opportunity to express his views.
43. Lastly, the applicant complained about the duration of proceedings before the Supreme Administrative Court, especially as regards the first set of proceedings, whose duration was two years and seven months. He argued that the prompt examination of his case had been necessary, as the applicant had been due soon to reach the compulsory-retirement age of sixty-seven years old and thus he would no longer have been eligible for promotion, should the decision of the Cabinet have been annulled.
2. The Court’s assessment
(a) Principles established by the Court’s case-law
44. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (contestation in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016).
45. Article 6 § 1 does not guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005‑X, and Boulois v. Luxembourg [GC], no. 37575/04, § 91, ECHR 2012).
46. As to the “civil” nature of the right, the Court had held, before its Vilho Eskelinen judgment, that employment disputes between the authorities and public servants whose duties typified the specific activities of the public service, in so far as the latter was acting as the depositary of public authority responsible for protecting the general interests of the State, were not “civil” and were therefore excluded from the scope of Article 6 § 1 of the Convention (see Pellegrin, cited above, § 66). Following the functional criterion adopted in Pellegrin, employment disputes involving posts in the judiciary were excluded from the scope of Article 6 § 1 because, although the judiciary was not part of the ordinary civil service, it was nonetheless considered part of typical public service (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001).
47. By further defining the scope of the “civil” concept in Vilho Eskelinen, the Court developed new criteria for the applicability of Article 6 § 1 to employment disputes concerning civil servants. According to these criteria, in order for the respondent State to be able to rely before the Court on the applicant’s status as a civil servant in excluding the protection embodied in Article 6, two conditions must be fulfilled. First, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest. In order for the exclusion to be justified, it is not enough for the State to establish that the civil servant in question participates in the exercise of public power or that there exists, to use the words of the Court in Pellegrin, a “special bond of trust and loyalty” between the civil servant and the State, as employer. It is also for the State to show that the subject matter of the dispute in issue is related to the exercise of State power or that it has called into question the special bond. Thus, there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the respondent Government to demonstrate, firstly, that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified (see Vilho Eskelinen and Others, cited above, § 62).
48. The Court also notes that the criteria set out in the Vilho Eskelinen judgment have been applied to all types of disputes concerning civil servants and judges, including those relating to recruitment/appointment (see Juričić v. Croatia, no. 58222/09, 26 July 2011), career/promotion (see Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, 9 October 2012), transfer (see Ohneberg v. Austria, no. 10781/08, § 25, 18 September 2012) and termination of service (see Baka, cited above, § 109).
49. As regards the criterion set out in the Court’s case-law that the result of the proceedings must be directly decisive for the right in question, the Court had previously held in cases concerning recruitment or promotion procedures that in so far as the proceedings would not result in the applicant’s appointment or promotion but in the annulment of a third person’s appointment or promotion, they had only remote consequences for the applicant and, therefore, Article 6 was not applicable (see Revel and Mora v. France (dec.), no. 171/03, 15 November 2005, and Tencheva‑Rafailov v. Bulgaria (dec.), no. 13885/04, 5 January 2010). However, the Court later considered that an applicant who possessed all the necessary qualifications for a post and could legitimately expect to obtain it, could invoke Article 6 as the outcome of the proceedings would be directly decisive for his or her right to participate in a recruitment procedure conducted in compliance with the principles of legality and transparency, where such right was arguably recognised under the domestic law (see Fiume v. Italy, no. 20774/05, § 35, 30 June 2009; see also Majski v. Croatia (no. 2), no. 16924/08, § 50, 19 July 2011 and Juričić, cited above, § 52, in which the Court found Article 6 applicable in relation to the right to equal participation in a competition for public office and implicitly rejected the Government’s objection that the proceedings were not directly decisive for the right in question). Similarly, in Tsanova-Gecheva v. Bulgaria (no. 43800/12, 15 September 2015), the Court held that the proceedings were decisive for the applicant’s right to a lawful and fair promotion procedure in so far as they could end up to the annulment of the contested procedure and to the organisation of a new competition for the post, if the domestic courts had granted the applicant’s appeal (see also Dzhidzheva-Trendafilova cited above, § 43, 9 October 2012).
(b) Application of the above principles to the present case
(i) Existence of a right
50. As regards the existence of a right in the present case, the Court notes that the domestic proceedings concerned the dispute by the applicant in respect of the Cabinet decisions to appoint some of his colleagues to the vacant posts of vice-president of the State Legal Council, posts for which the applicant was also eligible. In particular, the applicant complained of the procedure under which legal counsellors who had been ranked below him in the list had been promoted to vice-presidents on two principal grounds that: a) there had not been sufficient reasoning of the contested decisions in so far he had been omitted and b) he had been manifestly superior to the promoted candidates. It appears, therefore, that the applicant implicitly invokes a right to be promoted.
51. 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 the administration of justice (see Harabin v. Slovakia (dec.), no. 62584/00, 29 June 2004). The Court has however accepted, in circumstances similar to those of the present case, that the right to a lawful and fair promotion procedure (Dzhidzheva-Trendafilova, cited above, § 43, Fiume, cited above, § 35, and Penttinen v. Finland (dec.), no 9125/07, 5 January 2010) or to equal participation in a competition for public office (Juričić, cited above, § 52) could be considered as recognised rights in domestic law, at least arguably where the domestic courts had recognised their existence and had examined the relevant complaints of the applicants (Tsanova-Gecheva, cited above, § 84). This appears to be the case in the present application, since the domestic law gave the legal counsellors who possessed the formal requirements specified in the relevant provisions “to an excellent degree” the right to be considered eligible for promotion. Additionally, the Supreme Administrative Court did not dismiss the applicant’s complaints against the decisions by which his colleagues were promoted as lacking a legal basis but proceeded with the examination of the relevant applications for annulment. Before rejecting the complaints, the Supreme Administrative Court examined them on the merits and in so doing it determined the dispute over the applicant’s right to participate in a lawful and fair promotion procedure.
52. Accordingly, in the light of the domestic legislative framework, the Court considers that the applicant could arguably claim to have had a right to participate in a lawful and fair promotion procedure.
(ii) Existence of a dispute
53. The Court further observes that the parties devote a significant part of their submissions to the “civil” nature of the alleged right of the applicant to be promoted arguing on the applicability of the criteria stated in the Court’s judgment in Vilho Eskelinen and Others (cited above). However, the Court considers that there is no reason for it to proceed with the examination of the “civil” character of the applicant’s right to participate in a lawful and fair promotion procedure, because it finds that Article 6 is not applicable on other grounds.
54. In this connection, the Court notes that the applicant lodged the two applications for annulment for the Cabinet’s omission to promote him in the post of vice-president on November 2008 and October 2009 respectively. The joint hearing took place on May 2010 and the judgments were published in 2011. The Court equally notes that in July 2010 the applicant was appointed President of the State Legal Council following a procedure similar to the one he contests. It follows that even if the Supreme Administrative Court had accepted the applicant’s argument that the reasoning stated in the appointment decision had been insufficient or that his candidacy had been manifestly superior than that of the promoted candidates, such an outcome would not have resulted in the applicant’s appointment but in a new procedure for the appointment of vice-presidents in which, in any event, the applicant could not have participated as he was already at the time President of the State Legal Council. The Court therefore finds that the proceedings were not directly decisive for the applicant’s right in question since his appointment to the post of President.
55. The Court has now to determine whether the above conclusion could exclude the applicability of Article 6 for the period that elapsed from the time the applicant lodged his first application for annulment until the time he was appointed President of the State Legal Council. In this connection, the Court notes that while the domestic proceedings until July 2010 could potentially lead to a determination of his civil right to participate in a lawful and fair promotion procedure for the post of vice-president, in the sense that they could lead to the annulment of the previous procedure and to a new competition for the post in which the applicant could take part, this situation was no longer possible following the applicant’s appointment as President shortly after the hearing of the case.
56. Even assuming that the existence of a “dispute” must be determined by reference to the time when the applicant instituted the domestic proceedings, as it is the case as far as existence of a “right” is concerned (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 89, ECHR 2001‑V, and Dzhidzheva-Trendafilova, cited above, § 45), the Court notes that in this case, it was not subsequent case-law developments that removed, retrospectively, the arguability of the applicant’s claim (see a contrario Dzhidzheva-Trendafilova, cited above, § 45) but the actions of the applicant himself. In this connection, the Court considers that the applicant, by participating in the competition for the post of President in 2010 and accepting the relevant position, in reality rendered the domestic proceedings no longer decisive for his right in question. It can therefore be concluded that there was not this kind of direct relationship between the domestic proceedings in question and the right of the applicant.
57. In this connection, the present case is distinguishable from the Court’s judgment in Majski v. Croatia (no. 2) (no. 16924/08, 19 July 2011), where the domestic proceedings were directly decisive for the applicant’s right to be appointed, since there had been only two candidates for promotion and should the appointment of the other person have been annulled, the applicant would have been appointed. It is also distinguished from the Court’s judgments in Fiume and Tsanova-Gecheva (both cited above), where the respective applicants would have been able to participate in new competitions, had they been annulled by the domestic courts, and could have legitimately have expected to have been appointed.
58. The Court, therefore, concludes that the domestic proceedings could not have resulted in a determination of the applicant’s civil rights and obligations and it cannot be said that the outcome of those proceedings was directly decisive for such rights and obligations. It follows that the applicant’s complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 May 2017.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy