CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juillet 2011

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display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIRST SECTION           CASE OF JURIČIĆ v. CROATIA   (Application no. 58222/09)               JUDGMENT       STRASBOURG   26 July 2011     FINAL   26/10/2011     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Juričić v. Croatia , The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Anatoly Kovler, President,   Nina Vajić,   Elisabeth Steiner,   Khanlar Hajiyev,   George Nicolaou,   Mirjana Lazarova Trajkovska,   Julia Laffranque, judges, and Søren Nielsen, Section Registrar, Having deliberated in private on 5 July 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 58222/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Mirjana Juričić (“the applicant”), on 18 October 2009. 2.     The applicant was represented by Mr V. Miljević, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. 3.     The applicant alleged, in particular, that there had been a violation of her right to a fair hearing. 4.     On 10 November 2010 the President of the First Section decided to give notice to the Government of complaints concerning the equality of arms, a lack of impartiality, and a lack of an oral, public and adversarial hearing. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1954 and lives in Zagreb. 6.     On 26 February 2008 the Committee on the Constitution, Rules of Procedure and Political System of the Croatian Parliament, ( Hrvatski Sabor – Odbor za Ustav, Poslovnik i politički sustav – “the Parliamentary Committee”) published in the Official Gazette (no. 26/2008 of 29 February 2008) a Call for Applications for the Election of Three Judges to the Constitutional Court, inviting prospective candidates to submit their applications. 7.     On 28 April 2008 the applicant, a judge of the Administrative Court, submitted her application for the post of judge of the Constitutional Court. Another eighteen candidates also submitted applications. 8.     The Parliamentary Committee eventually compiled a shortlist of four candidates, namely, Mr   M.J., Mrs D.Š., Mrs S.B. and the applicant, and submitted it to Parliament for a vote. 9.     After a secret ballot in which the applicant received four of the required 77 votes, on 9 May 2008 Parliament adopted a decision electing Mr   M.J., Mrs D.Š. and Mrs S.B., who each received 78 votes, as judges of the Constitutional Court. 10.     On 26 May 2008 the applicant, relying on section 66 of the Administrative Disputes Act (see paragraph 32 below), lodged a request for the protection of a constitutionally guaranteed right ( zahtjev za zaštitu ustavom zajamčenog prava ) with the Administrative Court ( Upravni sud Republike Hrvatske ) contesting Parliament’s decision of 9 May 2008. She argued that S.B. had not proved that she had at least fifteen years of professional experience and thus did not demonstrate that she satisfied all the statutory criteria for election as a Constitutional Court judge set forth in section 5(1) of the Constitutional Court Act (see paragraph 25 below). Therefore, in the applicant’s view, by electing S.B. instead of her, Parliament had breached her right to equality before the law, the right to equality before the State and other public authorities, the right to equal access to public service and the right to equal access to employment guaranteed in Articles 14(2), 26, 44 and 54(2) of the Constitution (see paragraph 23 below), respectively. 11.     On 26 June 2008 the Administrative Court invited M.J. and D.Š. to submit their observations as third (interested) parties ( zainteresirane osobe ). On 7 and 8 June 2008, respectively, they replied that they considered the applicant’s request unfounded and that the election of the Constitutional Court’s judges had been in accordance with the law. They also stated that they did not consider themselves third (interested) parties to the proceedings because the applicant had not challenged their election. 12.     On 15 October 2008 the Administrative Court delivered a judgment whereby it allowed the applicant’s request and quashed Parliament’s decision of 9 May 2008 in its part concerning S.B. The court held that the applicant was entitled to lodge her request even though that court’s judgment did not alter her legal status as unelected candidate. It also held that from the evidence submitted by S.B. to the Parliamentary Committee it could not be discerned whether she had the required professional experience and that therefore the applicant’s right to equal access to public service and her right to equal access to employment, guaranteed by Articles 44 and 54(2) of the Constitution, had been breached by the contested decision. 13.     On 4 February 2009 S.B. lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) against the Administrative Court’s judgment. At the same time she asked the Constitutional Court to order an interim measure that would postpone the effects of the contested judgment until that court had decided on her constitutional complaint. S.B. argued in her constitutional complaint that the impugned judgment of the Administrative Court had breached her right to equality before the law, the right to work and the right to equal access to employment guaranteed in Articles 14(2) and 54(1) and (2) of the Constitution (see paragraph 23 below), respectively. She also argued that the election of the Constitutional Court judges was a political rather than a legal issue. Therefore, Parliament’s decision of 9   May 2008 constituted a so-called act of State ( akt vladanja ) in respect of which the scope of constitutional review was limited to compliance with procedural rules (that is, to formal constitutionality) and was thus very narrow. In particular, she argued that the Administrative Court had not been authorised to assess whether the evidence she had submitted had been sufficient to prove that she had the required professional experience and to question the Parliamentary Committee’s findings in this respect. 14.     On the same day, the Constitutional Court, sitting in a plenary session composed of ten judges (including judges M.J. and D.Š.), ordered an interim measure postponing the effects of the Administrative Court’s judgment of 15   October 2008. In so doing it held, inter alia , that: “...the contested judgment [of the Administrative Court] requires detailed examination of the limits and scope of judicial review of decisions on appointment of State officials, ..., and in that sense, has a wider importance that goes beyond the limits of an individual case.” The decision on the interim measure was published in Official Gazette no. 16/2009 of 5   February 2009 but has never been served on the applicant. 15.     On 13 February 2009 the Constitutional Court served the constitutional complaint together with the request for an interim measure on the applicant. 16.     On 18 February and 3 March 2009 S.B. supplemented her constitutional complaint, alleging a violation of her right to a fair hearing guaranteed by Article 29(1) of the Constitution. On 20 February and 5   March 2006, respectively, the Constitutional Court served the two supplements on the applicant. 17.     On 7 March 2009 the applicant submitted her reply to S.B.’s constitutional complaint and two days later to its supplements of 18   February and 3 March 2009. She argued that because the election of the Constitutional Court judges was regulated by law, it was not a political but primarily a legal issue. Consequently, Parliament’s decision of 9   May 2008 was not an “act of State” and was therefore justiciable, that is, capable of being challenged in legal proceedings. In any event, section 66 of the Administrative Disputes Act entitled the Administrative Court to review any individual decision capable of violating constitutional rights, regardless of its nature or of whether it emanated from the legislative or the executive branch of government. As regards S.B.’s request for an interim measure, the applicant, after having remarked that the Constitutional Court had granted it on the same day the request had been made, argued that under section 67(2) the Constitutional Court Act such a measure could not postpone “the effects of a contested decision” but only its “enforcement” (see paragraph 25 below). Lastly, the applicant asked the Constitutional Court to “hold a public session (hearing)” and invite her to attend it (“ održi javnu sjednicu (raspravu) na koju molim da me se pozove ”). 18.     During the proceedings, the Constitutional Court requested and obtained observations from the Parliamentary Committee, expert opinions from six law-faculty professors and two former judges of that court as well as opinions and information from the Croatian National Bank, the State Central Office for Administration, the Croatian Bar Association, the Ministry of Justice, the State Bureau of Statistics and a private bank Zagrebačka banka d.d.. The remaining nine law faculty professors from whom the Constitutional Court also requested expert opinions did not submit them. The attempt to obtain information from the Danish Red Cross failed because the NGO in question could not be found at the address indicated in the relevant register. 19.     On 31 March 2009 the applicant wrote to the Constitutional Court asking it to serve her with “the expert opinions requested (from individuals and institutions)”, which she had found out about from the media. 20.     On 30 April 2009 the Constitutional Court, sitting in a plenary formation of ten judges (including judges M.J. and D.Š.), held a session to which the applicant was not invited, and adopted a decision whereby it quashed the Administrative Court’s judgment of 15 October 2008. It held that the election of Constitutional Court judges was a hybrid (political and legal) issue and that, even though Parliament’s decision of 9   May 2008 was “an act of State”, the Administrative Court could have reviewed not only whether the prescribed procedure had been followed but also whether the candidates had satisfied the required statutory conditions. Nevertheless, the Administrative Court had overstepped the bounds of its jurisdiction when it had (re)assessed the evidentiary value of the documents S.B. had furnished as proof that she had possessed the required professional experience. By so doing the Administrative Court had not only encroached on matters within the exclusive jurisdiction of Parliament, but had also breached S.B.’s right to work and her right to equal access to employment guaranteed by Article 54(1) and (2) of the Constitution, as well as her right to equality before the law guaranteed by Article 14(2) of the Constitution. 21.     On the same day, the President of the Constitutional Court and her Deputy held a press conference at which they announced that the Administrative Court’s judgment of 15 October 2008 had been quashed, that S.B. remained a judge of the Constitutional Court and that the case would not be remitted to the Administrative Court in order to “stop this agony”. 22.     On 4 May 2009 the Constitutional Court served its decision, together with the opinions and information obtained during the proceedings, on the applicant. On 5 June 2009 the decision of the Constitutional Court was published in the Official Gazette (no. 65/2009). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Constitution 1.     Relevant provisions 23.     The relevant provisions of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows: Article 14 “Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” Article 26 “All nationals of the Republic of Croatia and foreigners shall be equal before the courts and other State or public authorities.” Article 29(1) “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” Article 44 “Every national of the Republic of Croatia shall have the right, under equal conditions, to take part in the conduct of public affairs, and to be admitted to public service.” Article 54 “Everyone shall have the right to work and enjoy freedom of work. Everyone shall be free to choose his or her vocation and occupation, and every job or duty shall be accessible to everyone under equal conditions.” Article 125 “The Constitutional Court of the Republic of Croatia shall consist of thirteen judges elected among eminent lawyers, especially judges, State attorneys, advocates and university professors of law, by the Croatian Parliament for a term of eight years. The Croatian Parliament’s Committee on the Constitution shall conduct proceedings related to candidatures for election to the Constitutional Court of the Republic of Croatia and propose candidates to the Croatian Parliament. The Constitutional Court of the Republic of Croatia shall elect its President for a term of four years.” 2.     The case-law of the Administrative Court 24.     In its judgment no. Zpa-5/2004-5 of 2 December 2004, following a request for the protection of a constitutionally guaranteed right (see paragraph 32 below) the Administrative Court quashed the decision of the National Judicial Council on the appointment of a Municipal Court judge. It held that every candidate satisfying the statutory requirements had the right to equal participation in a competition for public office. Therefore, by appointing a candidate who did not satisfy the statutory requirements to be a judge of a Municipal Court, the National Judicial Council had violated the other candidate’s constitutional right to equal access to public service guaranteed by Article 44 of the Constitution (see the preceding paragraph). B.     The Constitutional Court Act and related subordinate legislation 1.     The Constitutional Court Act (a)     Relevant provisions 25.     The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments ( Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske , Official Gazette of the Republic of Croatia no. 29/2002 of 22   March 2002), which entered into force on 15 March 2002, reads as follows:   II.     CONDITIONS FOR THE ELECTION OF THE CONSTITUTIONAL COURT JUDGES, [THEIR] ELECTION AND TERMINATION OF THEIR OFFICE Section 5 “(1) A Croatian national who is a bachelor of laws with at least fifteen years of experience in the legal profession, and who has become eminent in that profession by virtue of his or her academic or professional work or his or her public activities, may be elected as a judge of the Constitutional Court. (2) A person who has obtained a doctoral degree in legal science and satisfies the other conditions referred to in paragraph 1 of this section may be elected as a judge of the Constitutional Court if he or she has at least twelve years of experience in the legal profession.” Section 6 “(1) The Croatian Parliament’s Committee on the Constitution (hereinafter: ‘the competent committee’) shall institute the procedure for electing judges of the Constitutional Court by publishing a call in the Official Gazette inviting judicial institutions, law faculties, the Bar Association, lawyers’ associations, political parties and other legal entities and individuals to nominate candidates for the election of one or more judges of the Constitutional Court (hereinafter: ‘the call’). An individual may also put himself or herself forward as a candidate. (2) The call shall set down the conditions for electing a judge of the Constitutional Court set forth in the Constitution and this Constitutional Act, the time-limit for submission of a candidate’s nomination to the competent committee, and the enclosures to be delivered with the nomination. (3) After the time-limit referred to in paragraph 2 of this section expires, the competent committee shall examine whether the candidates satisfy the conditions for being elected as judges of the Constitutional Court set forth in the Constitution and this Constitutional Act, and shall reject invalid candidatures.   (4) The competent committee shall hold a public interview with each candidate who satisfies the conditions for being elected as a judge of the Constitutional Court and shall, on the basis of information collected and the results of the interviews, compile a shortlist of candidates for judges of the Constitutional Court. The shortlist shall, as a rule, comprise more candidates than the number of judges ... who are to be elected.   (5) The competent committee shall submit to the Croatian Parliament, together with its proposal, the list of all candidates who satisfy the conditions for being elected as judges of the Constitutional Court. The proposal of the competent committee shall contain reasons showing why the committee gave a particular candidate priority over other candidates.   (6) Representatives in the Croatian Parliament shall vote individually for each proposed candidate. (7) A candidate proposed for election to the Constitutional Court shall be considered to have been elected as a judge of the Constitutional Court if a majority of the total number of representatives in the Croatian Parliament have voted for him.”   III.     PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT – GENERAL PROVISIONS Section 27(6) “A judge of the Constitutional Court may not abstain from voting, unless he has participated in the enactment of a statute or subordinate legislation or the adoption of a decision upon which the Constitutional Court is required to rule.” Section 34 “Unless provided otherwise by this Constitutional Act, in the proceedings before it the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as subsidiary rules.”   IV.     REVIEW OF THE CONSTITUTIONALITY OF STATUTES AND THE CONSTITUTIONALITY AND LEGALITY OF SUBORDINATE LEGISLATION Section 50   “(1)     The Constitutional Court may, in a [plenary] session, conclude to decide the merits [of a case] on the basis of a public hearing.   (2)     A public hearing shall be scheduled by the President of the Constitutional Court. (3)     The participants in the proceedings and the representatives of State authorities, local government and associations, as well as [other] persons whose participation at the public hearing is required, shall be summoned to the public hearing. (4)     The failure of the summoned participants ... and other summoned persons to attend [the hearing] shall not prevent the Constitutional Court from continuing the proceedings and reaching a decision, if it considers that the conditions for doing so exist. (5)     In justified cases, the Constitutional Court may postpone the public hearing and schedule a new one.”   V.     PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS Section 62 “(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person vested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional rights’)... (2) If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. (3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [ revizija ] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” Section 67   “(1) The constitutional complaint, as a rule, does not prevent the application of the contested decision. (2) The Constitutional Court may, at the request of the complainant, postpone the enforcement [of the contested decision] until it decided on the constitutional complaint, if the enforcement would cause the complainant a harm that would be difficult to repair, and the postponement is not contrary to the public interest nor would cause greater harm to anyone.” Section 68 “(1)     A panel composed of six judges shall decide on a constitutional complaint. (2)     ... (3)     The panel may only decide unanimously and with all its members present. (4)     If the panel does not reach a unanimous decision, or if the panel considers that the issue [raised in] the constitutional complaint is of wider importance, the constitutional complaint shall be decided by the [plenary] session of the Constitutional Court.” Section 69 “The judge rapporteur shall: - ... - serve, if need be, a copy of the constitutional complaint to interested persons and invite them to respond to it, ...” 26.     Section 72 provides that, if a constitutional complaint is successful, the Constitutional Court must quash the impugned decision and remit the case to the competent authority. (b)     The Constitutional Court’s practice 27.     On 8 April 2011 the Constitutional Court for the first time in its history held a public hearing in the proceedings following an individual constitutional complaint. The complainant Mr. P.T., who had taught a denominational (Catholic) religious education course in a public school, had been dismissed from his job because the Catholic Church had revoked his canonical mandate of catechist after he had remarried. The President of the Constitutional Court explained a decision to hold a public hearing by saying that the Constitutional Court’s decision in that case “[went] beyond the limits of a particular case” and “[would] mark future relations with religious communities”. 2.     The Constitutional Court Rules 28.     The relevant provision of the Rules of the Constitutional Court ( Poslovnik Ustavnog suda Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 181/2003 and 30/2008 – “the Constitutional Court Rules”) reads as follows: Rule 31 “(1) In the proceedings before the Constitutional Court ... a judge rapporteur is authorised to: ....     4. seek expert opinions on particular cases from jurisconsults of the Constitutional Court, ...” C.     The Administrative Disputes Act 29.     The Administrative Disputes Act ( Zakon o upravnim sporovima , Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part provides as follows: 30.     Section 34 reads as follows: “The [Administrative Court] decides administrative disputes in closed session. The [Administrative Court] may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue. For the same reasons a party may ask that an oral hearing be held.” 31.     Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court, the provisions of the Civil Procedure Act should apply mutatis mutandis . 32.     Section 66 reads as follows:   “A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.” D.     The Civil Procedure Act 33.     The relevant part of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows: Section 71 “A judge ... shall be disqualified from exercising his functions: 1. if he or she himself or herself is a party...; ... 5. if, in the same case, he or she participated in the proceedings before a lower court or some other authority; ... 7. if other circumstances exist which cast doubt on his or her impartiality.” 34.     The grounds enumerated in section 71 subparagraphs 1-6 are considered absolute grounds for withdrawal, in that the judge concerned is automatically disqualified from sitting. 35.     Section 72(1) provides that, from the moment he or she becomes aware of an absolute ground disqualifying him from sitting, the judge must take no further part in the case and bring the circumstances which disqualify him or her from sitting to the immediate attention of the president of the court of which he or she is a member, whereupon the president designates another judge to hear the case. 36.     Section 73(6) provides that the party has to make a request for withdrawal of a judge as soon as he or she learns of a reason for withdrawal and at the latest before the conclusion of the trial before the first-instance court, or, if there was no trial, before the decision is rendered. 37.     Section 73(7) provides that the withdrawal of a judge of a higher court may be requested by the party in the legal remedy or in the reply to the legal remedy. 38.     Section 74(1) reads as follows: Section 74 “Unless the law provides otherwise, the party’s request for withdrawal [of a judge] shall be decided by the president of the court.” 39.     Section 75 reads as follows: Section 75 “When a single judge, the president of the panel, a member of the panel or the president of the court learns that his or her withdrawal has been requested, he shall immediately stop all work on the case, and, if the withdrawal was requested on the ground provided in section 71(1), subparagraph 7 of this Act, he or she may, until a the request is decided, undertake only those actions which entail the risk of a delay.” THE LAW I.     ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS 40.     The applicant complained that the above-mentioned proceedings had not been fair because: (a) a public hearing had not been held, (b) the proceedings had not been adversarial and the principle of equality of arms had not been respected in that the expert opinions of eminent lawyers and opinions and information obtained from various institutions by the Constitutional Court had been served on her only after the proceedings had ended, and (c) the Constitutional Court had not been impartial given that judges M.J. and D.Š. had sat in the panel of that court that delivered the decision in her case even though these two judges had acted as third parties in the previous proceedings before the Administrative Court, in which they, inter alia , had expressed their opinion that the election of the three judges to the Constitutional Court had been lawful. The applicant relied on Article   6   §   1 of the Convention, which reads as follows: “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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” 41.     The Government contested these arguments. A.     Admissibility 42.     The Government disputed the admissibility of these complaints arguing that Article 6 was inapplicable. In addition, they argued that the applicant had failed to exhaust domestic remedies in respect of her complaint concerning the alleged lack of impartiality. 1.     Applicability (a)     The arguments of the parties (i)     The Government 43.     The Government first referred to the Court’s case-law according to which Article 6 § 1 of the Convention was applicable to disputes over civil “rights and obligations” which were, at least on arguable grounds, recognised under domestic law (see James and Others v. the United Kingdom , 21 February 1986, § 81, Series A no. 98). 44.     In that connection the Government first argued that in the Croatian legal system there was no right to be elected as judge of the Constitutional Court. Such a right was not recognised by the Constitution, the Constitutional Court Act or any other domestic legislation. In particular, the constitutional guarantee of equal access to public service, provided for in Article 44 of the Constitution (see paragraph 23 above), did not imply the right to be admitted to public service, that is, to be appointed to the position of a State official. It followed that the applicant could not have had the right to be elected to the Constitutional Court. 45.     In any event, the Government explained, a judge of the Constitutional Court was one of the highest State officials who wielded a portion of the State’s sovereign power. The procedure for election of a Constitutional Court judge thus did not involve determination of “civil” rights and obligations within the meaning of Article 6 § 1 of the Convention. 46.     The Government further noted that the Administrative Court’s judgment of 15 October 2008, by which it had quashed Parliament’s decision of 9 May 2008, had not resulted in the applicant’s election as judge of the Constitutional Court instead of Mrs S.B. That was expressly acknowledged by the Administrative Court itself, which in its judgment stated that its ruling did not alter the applicant’s legal status as unelected candidate (see paragraph 12 above). Her status would not have been altered even if the Constitutional Court had upheld the Administrative Court’s judgment. In that case the post of Constitutional Court judge would have remained vacant. A new call for applications would have been published and a new election procedure conducted. For the Government, that meant that the proceedings in question had not been directly decisive for the applicant’s “rights and obligations”. 47.     Lastly, the Government submitted that under Croatian law there was no right to challenge a decision of Parliament on the election of a Constitutional Court judge either. Such a decision could only be reviewed under section 66 of the Administrative Disputes Act (see paragraph 32 above), if it was not in accordance with the constitutionally guaranteed rights or freedoms. However, the right to use that remedy had no features of private law and thus had no elements which could make it akin to a “civil” right required to render Article 6 applicable. 48.     Having regard to the foregoing, the Government considered that Article 6 was not applicable in the present case. (ii)     The applicant 49.     The applicant conceded that in the Croatian legal system there was no right to be elected as a judge of the Constitutional Court. However, in the proceedings complained of she had attempted to protect her constitutional right to equal access to the public service, as guaranteed by Article 44 of the Constitution. 50.     She further disagreed with the Government’s argument that the proceedings in question had not been directly decisive for her “rights and obligations”. She explained that had the Constitutional Court upheld the Administrative Court’s judgment of 15 October 2008, Parliament could either have decided to compile a new shortlist from the candidates that had initially not been shortlisted, or publish a new call for applications and initiate a new election procedure. In either case she would have had a chance to run for the post again and hope to be elected. (b)     The Court’s assessment 51.     The Court reiterates that Article 6 § 1 of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. The right of access, namely the right to institute proceedings before a court in civil matters, constitutes one aspect of this “right to a court” (see, notably, Golder v. the United Kingdom , 21 February 1975, §§ 28-36, Series A no. 18). This right extends only to “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see James and Others , cited above, § 81). Therefore, in order to establish whether the civil head of Article   6 is applicable in the present case, and, consequently, whether the applicant could rely on the guarantees of that Article, the Court should first examine whether she had a “right” which could arguably be said to be recognised under Croatian law, and secondly whether that right was a “civil” one. (i)     Existence of a right 52.     The Court notes in this connection that, according to the Administrative Court’s case-law, every candidate satisfying the statutory requirements has the right to equal participation in a competition for public office, which right is a corollary of the right to equal access to the public service guaranteed by Article 44 of the Constitution (see paragraph 24 above). It also notes that in the present case the Administrative Court found in its judgment of 15 October 2008 that the applicant’s constitutional rights to equal access to the public service, and to equal access to employment, as guaranteed by Articles 44 and 54(2) of the Croatian Constitution, had been violated by S.B.’s election (see paragraph 12 above). While it is true that the Administrative Court’s judgment was subsequently quashed following S.B.’s constitutional complaint, the Constitutional Court in its decision of 30 April 2009 did not call into question the applicant’s entitlement to rely on those constitutional rights. In these circumstances, the Court considers that the applicant had a “right” which could arguably be said to be recognised under Croatian law (see, for example, Kübler v. Germany , no. 32715/06, § 46, 13 January 2011; Lombardi Vallauri v. Italy , no. 39128/05, § 62, ECHR 2009 ‑ ... (extracts), and Fiume v. Italy , no. 20774/05, § 35, 30   June 2009).   (ii)     Civil nature of the right 53.     As regards the “civil” nature of the right, the Court held that the approach developed in the case of Vilho Eskelinen and Others v.   Finland ([GC], no. 63235/00, ECHR 2007 ‑ IV, see paragraph 54 below) also applied to the right of access to public office (see, notably, Kübler , cited above, §   45; and, implicitly, Josephides v. Cyprus , no. 33761/02, § 54, 6 December 2007; Lombardi Vallauri , cited above, § 62, and Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010). 54.     Before the judgment in the Vilho Eskelinen case, the Court held 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 excluded from the scope of Article 6 § 1 of the Convention (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999 ‑ VIII). Likewise, employment disputes involving posts in the judiciary were also excluded from the scope of Article   6 § 1 because the judiciary, while not being part of the ordinary civil service, was nonetheless considered part of typical public service (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001). 55.     In the Vilho Eskelinen case the Court revisited the applicability of Article 6 § 1 and held that it was for the Contracting States, in particular the competent national legislature, and not the Court, to identify expressly those areas of public service involving the exercise of the discretionary powers intrinsic to State sovereignty where the interests of the individual must give way. If a domestic system barred access to a court, the Court would verify that the dispute was indeed such as to justify the application of the exception to the guarantees of Article 6. If it did not, then there was no issue and Article 6 § 1 would apply (see Vilho Eskelinen and Others , cited above, § 61). 56.     Following the Vilho Eskelinen case, the Court found Article 6 to be applicable to disputes concerning payment of judges’ salaries and other benefits (see Petrova and Chornobryvets v. Ukraine , nos. 6360/04 and 16820/04, § 15, 15 May 2008) as well as to those concerning their transfer (see Tosti v. Italy (dec.), no. 27791/06, 12 May 2009) and removal from office (see Olujić v. Croatia , no.   22330/05, §§ 31-44, 5   February 2009, and G. v. Finland , no. 33173/05, § 34, 27 January 2009), in cases where the domestic law allowed access to a court to challenge relevant decisions. In this connection the Court notes that Croatian law allows decisions of the Croatian Parliament on the election of Constitutional Court judges to be challenged before the judicial authorities in so far as those decisions may be contrary to the constitutional rights to equal access to the public service, and to equal access to employment. In the present case the applicant contested the impugned decision before the Administrative Court by lodging a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraphs 10 and 32 above). (iii)     Conclusion 57.     In the light of the foregoing, the Court finds that Article 6 of the Convention under its civil head is applicable to the present case (see, mutatis mutandis , Josephides , cited above, § 55; Penttinen , cited above; Kravchenko and Others (military housing) v. Russia , nos. 11609/05, 12516/05, 17393/05, 20214/05, 25724/05, 32953/05, 1953/06, 10908/06, 16101/06, 26696/06, 40417/06, 44437/06, 44977/06, 46544/06, 50835/06, 22635/07, 36662/07, 36951/07, 38501/07, 54307/07, 22723/08, 36406/08 and 55990/08, § 23, 16 September 2010, and Kübler , cited above, § 46) and, consequently, that the applicant cou