CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 28 septembre 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s403582AA { width:8.67pt; display:inline-block } .s7EDD3AD2 { width:153.53pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     THIRD SECTION DECISION Application no. 70501/17 José Antonio GARCÍA SAÍZ against Spain   The European Court of Human Rights (Third Section), sitting on 28   September 2021 as a Committee composed of:   Darian Pavli, President,   María Elósegui,   Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to the above application lodged on 6 September 2017, 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 José Antonio García Saíz, is a Spanish national who was born in 1978 and lives in Cuenca. He was represented before the Court by Mr J.L. Fuertes Suárez, a lawyer practising in Madrid. 2.     The Government were represented by their Agent, Mr. A. Brezmes Martínez de Villarreal, Agent of Spain before the European Court of Human Rights. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant participated in a public competitive examination in 2009 for a position as a public servant dealing with occupational risk prevention for a regional government. The notice of the examination specified the degree that successful candidates were required to have. The applicant submitted a diploma in occupational risk. He was excluded from the public selection procedure, as he had not provided evidence of the required degree. 5.     The applicant appealed against that decision, first to the regional administration, and afterwards to the High Court of Justice (“the High Court”), which dismissed his appeal. The Supreme Court, by a judgment of 20   July 2015, subsequently dismissed a cassation appeal by the applicant and upheld the High Court’s judgment. No further action was taken by the applicant at that time. 6.     By a judgment of 4 November 2015, the Supreme Court upheld a substantially identical claim brought by another person who had also applied for the same public examination, and found that the diploma in occupational risk was valid as a substitute for the degree. The applicant learned of that judgment when it was published in the Official Gazette of the Autonomous Community, and he filed a motion for annulment of the 20   July 2015 judgment, as he considered that his rights had been violated. 7.     The Supreme Court dismissed the motion by a decision of 18   July 2016, on the following grounds: “FIFTH. There is no doubt as to the identical nature of the cases considered in both judgments. The proponent of the incident makes this clear. It cannot be maintained that different matters are examined and decided in the two [judgments]. The essential issue in the proceedings was the same: to ascertain whether the qualification that both appellants had acquired under the regulations of Royal Decree 39/1997 that allowed them to work in the field could be considered equivalent to the qualification of Senior Technician in Occupational Risk Prevention. And while the judgment of 20 July 2015 upheld the decision of the lower court and rejected that possibility, the judgment of 4   November 2015 arrived at the opposite conclusion. The contradiction is, therefore, clear, but it is not possible to annul the first judgment. In fact, the appellant did not lodge a motion for annulment against it when it was pronounced. And the one lodged now does not allege any incongruity or lack of reasoning in the first judgment, or any other formal defect. Neither is it argued that, in itself and by its arguments, [the first judgment] violated his fundamental right to equality before the law or any other [fundamental right]. The lack of reasoning is argued in relation to the second judgment and the applicant is seeking to project the reasoning and conclusion [of that judgment] to maintain the need of annulling the first one. In dismissing the cassation appeal on 20 July 2015, we did not deviate from any precedent, and we decided on the sole basis of the argument that the applicant had raised against the Albacete lower court’s decision, which had also relied on a previous decision ... Therefore, the fact that a later judgment arrived at a different conclusion with different reasoning does not render the first one invalid. It is perfectly understandable that Mr García Sáiz should wish to have the same criteria that have benefited Ms Martínez Vicente applied to him, but the annulment motion is not the way to achieve that, because it must be stressed that the subsequent adoption of a different interpretation from the one previously put forward does not imply that the first one gave rise to any discrimination”. 8.     The applicant lodged an amparo appeal (appeal for the protection of fundamental rights) with the Constitutional Court. By a decision of 8   March 2017, the amparo appeal was deemed inadmissible for lack of constitutional relevance. Relevant domestic law 9.     Regarding the motion for annulment, the Organic Law of the Judiciary regulates these actions in Article 241, as follows: Article 241 “1. Motions for annulment will generally not be admitted. However, in exceptional cases, those who are legitimate parties or who should have been may present a written request for a motion for annulment to be issued, on the grounds of a violation of a fundamental right referred to in art. 53.2 of the Constitution, provided that the complaint could not have been filed prior to the issue of the ruling that draws this case to a close and that this ruling is not subject to ordinary or extraordinary appeal. Competence to hear such incidents will fall to the same Court or Tribunal that issued the ruling that has become final. The deadline for requesting annulment is 20 days, to be counted from notification of the ruling or, in any event, from the point of taking knowledge of the defect in question; however, in the latter case, the annulment of the proceedings cannot be requested more than five years subsequent to the notification of the ruling. The court or tribunal will declare any other motions, seeking to raise other points of law, inadmissible. Rulings declaring motions inadmissible will not be subject to any form of appeal.” COMPLAINTS 10.     The applicant complained under Article 6 § 1 of the Convention and Article   1 of Protocol No. 12 to the Convention that he had been denied the right to be designated as a public servant because his diploma had not been considered equivalent to the one required in the notice of a public examination. Months after the dismissal of his cassation appeal, the Supreme Court, in dealing with a substantially identical claim, had taken the side of the appellant and delivered a judgment reaching an opposite finding to what had been previously decided in the applicant’s original claim. THE LAW The Government’s objections 11.     The Government submitted that the applicant had not exhausted domestic remedies as required by Article 35   §   1 of the Convention. In particular, the applicant had applied for the Supreme Court’s judgment to be declared void one year after it had been delivered and six months after the second judgment forming the basis for his claim before the Court. Spanish law had established a twenty-day time-limit for filing a motion for annulment, to be calculated either from the date of delivery of the judgment or from the moment that the defect had become known. In the present case, the applicant had not complied with that time-limit, as he had undoubtedly had prior knowledge of the second judgment, since both cases had been handled by the same representative ( procurador ) before the Supreme Court and also by the same lawyer in the High Court. Therefore, it was to be presumed that his lawyer would have informed him about the second judgment before its publication in the Official Gazette of the Autonomous Community. 12.     The applicant submitted that the above argument was an ad hominem attack based on mere conjecture. He had only known about the conflicting judgment when it had been published in the Official Gazette of the Autonomous Community, and any reference to another date derived from unsubstantiated claims. 13.     The Court notes that no evidence has been provided as to the specific date when the applicant had knowledge of the second judgment. In particular, it is an undisputed fact that the applicant was not an appellant in the second case, and was never officially notified of the second judgment. Legal practitioners intervening in cases for different clients do not have any obligation to inform their other clients of the result of a particular case; in fact, this may lead in some instances to serious malpractice. Also, the Court considers that the fact that the Supreme Court decided on the merits of the motion for annulment without rejecting it outright on account of a missed deadline is sufficient to find that the applicant complied with the deadline, taking into account the fact that more than one year had already passed by that time. 14.     Therefore, the Court considers that the applicant has properly exhausted domestic remedies as required by Article 35 § 1 of the Convention, and dismisses the Government’s objection in this regard. The complaints under Article 6 of the Convention 15.     The applicant asserted that the unjustified change in criteria in the second judgment fell foul of Article 6 of the Convention, arguing that there had been an unexplained contradiction going beyond a mere development of the case-law. 16.     The relevant part of Article 6 reads as follows:   Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 17.     The Government rejected the applicant’s argument. Citing, among other authorities, Nejdet Şahin and Perihan Şahin v. Turkey ([GC], no.   13279/05, 20 October 2011) and Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, 29 November 2016), the Government pointed out that the criteria set out in those judgments for considering whether there were profound and long-standing discrepancies in case-law which hindered legal certainty under Article 6 of the Convention had not been met in the present case. The discrepancy raised by the applicant had only related to a very particular issue, and only the two judgments considered in the present case existed on the matter. It was unlikely that further judgments on that issue would be decided, as the provisional law that had regulated the matter had been superseded in 2010. Thus, the Supreme Court had merely developed its position on the question and had considered it under a new light. 18.     The Court firstly states that it is for the national courts to resolve problems of interpretation of domestic legislation (see, among many other authorities, Brualla Gómez de la Torre v. Spain , 19 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII), and that its role is limited to verifying the compatibility of such interpretation with the Convention. In Nejdet Şahin and Perihan Şahin (cited above, §§ 50-51) the Court stated that, save in the event of evident arbitrariness, it was not its role to question the interpretation of the domestic law by the national courts. Similarly, it is not in principle its function to compare different decisions of national courts, even if given in apparently similar proceedings; it must respect the independence of those courts (ibid.; see also Ādamsons v. Latvia , no.   3669/03, § 118, 24 June 2008). The Court has already acknowledged that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention. Similarly, in Lupeni Greek Catholic Parish and Others (cited above, § 116) the Court reiterated that the criteria to be followed in its assessment of the circumstances in which contradictory decisions by different domestic courts ruling at final instance entailed a violation of the right to a fair hearing, as enshrined in Article 6 § 1 of the Convention, consisted in establishing, firstly, whether “profound and long-standing differences” existed in the case-law of the domestic courts; secondly, whether the domestic law provided for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism had been applied and, if appropriate, to what effect. 19.     The Court considers that these principles are applicable to the issue at hand. It finds that the facts of the case do not allow it to establish any long-standing discrepancies in the Supreme Court’s case-law, as there have been only two judgments regarding the issue at stake, the one concerning the applicant and the one concerning the other candidate. This specific, very narrow issue has been addressed in only two cases, and the difference in the outcome between them is not sufficient to conclude on the existence of either profound or long-standing difference (contrast with Lupeni Greek Catholic Parish and Others, cited above, §§ 119-28). 20.     The Court observes, furthermore, that the judgment concerning the applicant was the first of the two, and it followed the decision of the lower court in the matter. Any reasons for the change in position should have been given in the second judgment, which is not the subject of the present application. It was not possible for the Supreme Court to give reasons for the discrepancy in its position regarding a judgment that did not exist at that time and was delivered months later. In this connection, the answer given by the Supreme Court to the applicant in the motion for annulment pointed out that there had not been any formal defects in the first judgment, nor did the applicant argue that the judgment of 20 July 2015 had been attained by any other deficiencies. 21.     The Court concludes that this complaint is manifestly ill-founded, within the meaning of Article 35 §§ 3 (a) and 4 of the Convention. The complaint under Article 1 of Protocol No. 12 22.     Relying on Article 1 of Protocol No. 12, the applicant submitted that he had been discriminated against in relation to the other candidate, whose diploma had been deemed valid. This Article provides:   “1.     The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2.     No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 23.     The Government cited Biao v. Denmark ([GC], no. 38590/10, §§ 88-92, 24 May 2016) as relevant under Article 14 of the Convention and Article   1 of Protocol No. 12. The Government drew the Court’s attention to the fact that the applicant had not provided any previous judgment regarding the issue at hand. This was relevant because the issue of compliance with the Convention in respect of the actions of the State had to be considered with reference to the date when the action had been taken and not later. As such, if there had been no previous judgments, there could not have been any discrimination against the applicant, and there was no need to demonstrate any reasonable justification, as there had been no previous decisions that could be contradicted. 24.     The applicant failed to provide the Court with any evidence of the difference in treatment that would be based on an identifiable status that would distinguish his situation from other comparable situations (see, mutatis mutandis, in respect of Article 14 of the Convention, Molla Sali v.Greece [GC], no. 20452/14, §   134, 19 December 2018; Fábián v.   Hungary [GC], no. 78117/13, § 113, 5 September 2017; and Kiyutin v.   Russia , no. 2700/10, § 56, ECHR 2011). Furthermore, the Court considers that this complaint essentially concerns the same matter of allegedly conflicting case-law of the domestic courts, as the one dismissed above under Article 6 §   1. 25.     The foregoing considerations are sufficient to enable the Court to conclude that this complaint is manifestly ill-founded, within the meaning of Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 21 October 2021.   {signature_p_2}   Olga Chernishova   Darian Pavli   Deputy Registrar   President