Information Note on the Court’s case-law 188
August-September 2015
Tsanova-Gecheva v. Bulgaria - 43800/12
Judgment 15.9.2015 [Section IV]
Article 6
Administrative proceedings
Article 6-1
Access to court
Allegedly insufficient review by the domestic courts of appointment to court presidency: no violation
Facts – The applicant is a judge at the Sofia City Court, of which she was Vice-President and then President ad interim. When the post of President was advertised she applied, but the Supreme Judicial Council appointed a different candidate. The candidature and appointment of the other candidate received widespread media coverage and were vehemently criticised by numerous journalists and public figures, as the woman in question had been portrayed as a close friend of the then Minister of the Interior. The applicant appealed against the decision of the Supreme Judicial Council to the Supreme Administrative Court. The latter, ruling as a bench of three judges, found in her favour, but solely on the grounds that the vote had taken place by secret ballot. A five-judge bench of the Supreme Administrative Court quashed that judgment, taking the view that the decision of the bench of three judges had not been based on the applicable law. It gave a ruling on the merits and dismissed the applicant’s appeal against the Supreme Judicial Council’s decision.
In the Strasbourg proceedings the applicant complained that the scope of the judicial review conducted by the Supreme Administrative Court had been insufficient.
Law – Article 6 § 1
(a) Applicability of Article 6 – Neither Article 6 nor any other provision of the Convention or its Protocols guaranteed a right to be promoted or to hold public office. However, the Court had previously accepted, in circumstances similar to those of the present case, that the right to a lawful and fair recruitment or promotion procedure and the right to equal access to employment and to public office could be regarded as rights that were recognised, at least on arguable grounds, under domestic law, in so far as the domestic courts had acknowledged their existence and had examined the grounds raised by the persons concerned in that regard. That was the situation in the present case.
(b) Scope of the judicial review and alleged lack of reasons for the judgments of the Supreme Administrative Court – The European Court’s task consisted solely in verifying whether the applicant had had access to a court satisfying the requirements of Article 6 and, more specifically, whether the scope of the judicial review conducted by the Supreme Administrative Court had been sufficient.
The Supreme Administrative Court had been entitled to set aside the decision on several grounds of unlawfulness linked to the procedural and substantive requirements laid down by law, and to refer the case back to the Supreme Judicial Council for a fresh decision in conformity with possible directions issued by the Supreme Administrative Court regarding any irregularities found. However, it had not been empowered to review all aspects of the Supreme Judicial Council’s decision. In particular it could not, except where there had been an abuse of powers, call into question the choice made by the Supreme Judicial Council as to who had been the best candidate for the post, and could not substitute its own assessment for that of the Supreme Judicial Council.
Nevertheless, it was not the role of Article 6 to guarantee access to a court that could substitute its opinion for that of the administrative authorities. In that regard particular emphasis had to be placed on the respect to be accorded to decisions taken by the administrative authorities on grounds of expediency and which often involved specialised areas of the law. In the present case, although the domestic case-law conferred quite broad discretion on the Supreme Judicial Council when it came to assessing candidates’ qualities and choosing the person best qualified for the post, the Supreme Administrative Court had in fact reviewed whether that choice had involved an abuse of powers, that is, whether it had been made in breach of the purpose of the law. The court had also reviewed compliance with the conditions expressly laid down by the law.
With regard first of all to the nature of the decision in question, it had concerned the appointment of the President of a court. That issue unquestionably entailed the exercise of the discretion enjoyed by the Supreme Judicial Council, the authority specifically mandated to ensure the autonomous operation of the judiciary, particularly with regard to appointments and the disciplinary rules governing members of the judiciary, with the aim of ensuring judicial independence. With that aim in mind the legislature had granted the Supreme Judicial Council wide powers of discretion. In the light of these considerations, it was all the more important for the decision of the Supreme Judicial Council to be accorded the respect normally due to decisions taken by the administrative authorities on grounds of expediency.
Furthermore, the Supreme Judicial Council’s decision had been taken following a selection procedure that contained a number of procedural safeguards. The law and the internal regulations of the Supreme Judicial Council laid down detailed rules on the conduct of the procedure, with the aim of guaranteeing a transparent and fair selection process based on candidates’ professional qualities. These included rules designed to ensure that the process was conducted publicly, such as the requirement to publish the vacancy notice, the list of candidates and the transcript of the Supreme Judicial Council’s deliberations, as well as rules on the conduct of the vote. Candidates had to be assessed by the proposals and evaluation committee, and could apprise themselves of the findings of that committee and raise objections. They were given an interview by the Supreme Judicial Council, in the course of which they could present their application and reply to members’ questions. The Supreme Administrative Court had reviewed compliance with these rules, of its own motion and in response to the parties’ submissions. More generally, it had responded to the main arguments raised by the applicant, who, moreover, had not made any submissions concerning the alleged links between the other candidate and the then Minister of the Interior or the Minister’s possible interference in the appointment procedure. The Supreme Administrative Court had also confirmed that the reasons given by the Supreme Judicial Council in that regard had been sufficient.
It was true that the allegations regarding the lack of transparency and interference by the political authorities in the appointment procedure in question, and the criticisms made in that regard by the competent international bodies, were a cause for concern. However, while the Court was mindful of the importance of the procedures for appointing and promoting judges and their impact on the independence and proper functioning of the judicial system, it was not its task to express a view on the appropriateness of the choice made by the Supreme Judicial Council or the criteria that should be taken into account.
In view of these considerations, the scope of the Supreme Administrative Court’s review had been sufficient for the purposes of Article 6 of the Convention.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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