CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 juillet 2024

.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 } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .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 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sBD1BE8CC { width:33.89pt; display:inline-block } .s827CB718 { width:157.45pt; display:inline-block } .s100D1E5 { width:50.22pt; display:inline-block } .s2CF788F1 { width:132.09pt; display:inline-block }     FIFTH SECTION DECISION Application no. 49918/20 Eloy VELASCO NUÑEZ against Spain   The European Court of Human Rights (Fifth Section), sitting on 4   July   2024 as a Committee composed of:   Mārtiņš Mits , President ,   María Elósegui,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   49918/20) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4   November 2020 by a Spanish national, Mr E. Velasco Nuñez (“the applicant”), who was born in 1963, lives in Madrid and was represented by Ms B. Saura Alberdi, a lawyer practising in Madrid; the decision to give notice to the Spanish Government (“the Government”) of the complaint under Article 6 of the Convention concerning the alleged violation of the principle of legal certainty and the lack of sufficient reasons given by the domestic courts, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1 .     The applicant became a judge in 1988. In 1990, he passed a competition and was promoted to the category of specialist magistrate in the criminal jurisdiction, based on the relevant provisions of Institutional Law no. 6/1985 on the Judiciary. This Law specifically establishes that judges will be able to take selective tests in order to acquire the status of “specialist magistrates” in the civil, criminal, contentious-administrative or social jurisdictions. Moreover, it provides that certain specific vacancies in relevant posts within the judiciary shall be filled by magistrates, and preferably by magistrates specialising in the relevant jurisdiction. 2.     On 28 June 2011 the General Council of the Judiciary ( Consejo General del Poder Judicial , “the CGJ”) approved Regulation 2/2011 on the Judicial Career, which established that members of the judiciary who already held the category of magistrates could take part in competitions in order to acquire the status of specialist magistrates in the civil and criminal jurisdictions. It subsequently organised such a competition, which some magistrates successfully passed. 3 .     On 19 July 2013 the Supreme Court, following contentious-administrative proceedings, adopted two judgments by which it declared null and void several provisions of Regulation 2/2011. It held that the Institutional Law on the Judiciary did not allow the CGJ to organise competitions in order for magistrates to acquire the status of specialists in the civil and criminal jurisdictions. It considered, therefore, that the only way to formally acquire that status was through a promotion from the category of judge – as had been the applicant’s case in 1990. 4.     Notwithstanding the above, the Supreme Court held that the fact that some magistrates had successfully passed the competitions organised by the CGJ should be taken into consideration, given the objectivity and rigour of the tests they had sat, and be recognised as a qualified merit when they applied for promotion. 5.     On 6 April 2017 the CGJ organised a competition for the Appeals Chamber of the Audiencia Nacional and established that it would be decided in favour of magistrates with a certain seniority in the judiciary and in particular the criminal jurisdiction, preference being given to those holding specialist status. Although his position was less senior than that of other candidates, the applicant was awarded one of the posts, on the basis that his specialist status was considered a qualified merit. 6.     Some of the unsuccessful applicants for the position – magistrates who had taken the specialisation competition in 2011 which was later declared null and void by the Supreme Court judgments of 19 July 2013 – brought contentious-administrative proceedings challenging the applicant’s appointment. The applicant was heard in the proceedings. 7.     While rejecting some of the arguments of the plaintiffs, on 3   April 2019 the Supreme Court held that the awarding of the post to the applicant should be overturned. It referred to its judgments of 19 July 2013, and recalled that the fact that some magistrates had passed a competition in 2011 in order to become specialists in the criminal jurisdiction had to be considered a qualified merit in order to be promoted. This was, in the Supreme Court’s words, in accordance with the legislator’s intention of giving weight to the principles of merit, training and specialisation (which was different from holding the status of “specialist”) when awarding posts in the judiciary. The legislator’s intention could be inferred from the Institutional Law on the Judiciary (which referred to the filling of certain posts with preference to specialist magistrates, and which had been amended in 2015 to take a strong stance on judicial specialisation) and those provisions of Regulation 2/2011 which pertained to the specialisation of magistrates and were still in force. The Supreme Court considered that, when applying for posts within the judiciary, those candidates who formally held the status of “specialist magistrates in the criminal jurisdiction” should be placed on an equal footing with those other candidates who, being magistrates, had the merit of having passed the competition to become specialists. Among those candidates, the criterion for awarding the posts was seniority in the judiciary. Accordingly, the post in the Appeals Chamber of the Audiencia Nacional was not awarded to the applicant, but to another, more senior candidate. 8.     The applicant lodged a motion for annulment of the judgment of 3   April 2019 before the Supreme Court, which was dismissed on 29 May 2019 on the basis that the applicant merely disagreed with the reasoning of the judgment, and that there had been no violation of any fundamental right. He then lodged an amparo appeal with the Constitutional Court, which was declared inadmissible on 15 June 2020 because he had not duly justified the special constitutional relevance of his appeal. It was served on the applicant on 19   June 2020. 9.     The applicant complained that, by declaring his appointment invalid based on an unforeseeable interpretation of the applicable legal framework with regard to promotion in the judiciary career, the Supreme Court had ruled against its own previous criteria, with inadequate reasoning and in violation of the principle of legal certainty under Article 6 § 1 of the Convention. THE COURT’S ASSESSMENT 10.     The Government argued that the Supreme Court had not been contradictory in its judgments and had given sufficient reasons for its interpretation of the applicable legal framework with regard to the merits of magistrates in order to be promoted in the judiciary career. They contended that the Supreme Court had annulled several provisions of Regulation 2/2011 of the GCJ – which established that there would be tests for magistrates to acquire the status of specialists in the criminal jurisdiction – only from a formal perspective (because the Regulation had exceeded its legal basis), but not for material reasons. The Supreme Court had itself considered that, although the specialisation tests had been annulled, the fact of having passed them could be taken into account as a merit for promotion. In the impugned judgment, the Supreme Court had made an interpretative effort to consider the legislator’s intention ( voluntas legislatoris ) and establish the purpose of the rule, so that its application would not lead to an absurd, illogical or arbitrary conclusion. In the light of that interpretation, it had concluded that the other candidate was to be considered a specialist in the criminal jurisdiction, if only from a material perspective, and that among specialists, the objective, legitimate and well-established criterion to adjudicate the post was seniority in the judiciary. As a result, the competition had to be resolved in favour of the other candidate, who was more senior. The Government concluded that the annulment of the applicant’s appointment was not unforeseeable or in violation of the principle of legal certainty. 11.     The applicant alleged that the interpretation of the domestic law given by the Supreme Court judgment of 3 April 2019 was contrary to the findings of that court given in its previous judgments of 19 July 2013. He claimed that, in accordance with the requirements of the Institutional Law on the Judiciary, both the magistrate who had challenged his appointment and himself had had sufficient seniority to be eligible for the post in question. However, he had obtained his specialisation in 1990, whereas the other applicant had done so as late as in 2011, and through tests that were subsequently declared null and void by the Supreme Court. The applicant argued that the Supreme Court had, unforeseeably, given value to a test that had been annulled and had created a requirement that was not established by the law, preferring candidates who had more seniority in the judiciary to those who had more seniority in the specialist category. 12.     The Court reiterates, at the outset, that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court is not a court of appeal from the national courts and it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos.   55391/13 and 2 others, § 186, 6 November 2018, with further references). 13.     The Court should not act as a court of fourth instance and will not therefore question under Article 6 § 1 the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §   149, 17 October 2019, with a further reference). A domestic judicial decision cannot be characterised as arbitrary to the point of prejudicing the fairness of proceedings unless no reasons are provided for it or if the reasons given are based on a manifest factual or legal error committed by the domestic court, resulting in a “denial of justice” (see Moreira Ferreira v. Portugal (no.   2) [GC], no. 19867/12, § 85, 11 July 2017). 14.     The Court has also recognised that principle of legal certainty is implicit in all the Articles of the Convention and constitutes one of the fundamental aspects of the rule of law (see Nejdet Şahin and Perihan Şahin v.   Turkey [GC], no. 13279/05, § 56, 20 October 2011, 2011, § 56 ; see also the summary of the general principles concerning the principle of legal certainty in Lupeni Greek Catholic Parish and Others v. Romania [GC], no.   76943/11, §   116, 29 November 2016). 15.     In the present case, the Court observes that the issue complained of resides not in the different treatment of similar factual situations, but in a disagreement with the interpretation given by the Supreme Court to the applicable legal regime concerning the promotion to certain posts in the judiciary, in particular, with regard to the applicant’s own candidacy. 16.   The Court can accept that the applicable legal regime was not entirely clear when the applicant was initially awarded the post in the Criminal Chamber of the Audiencia Nacional . After the Supreme Court’s judgments of 19 July 2013 – according to which the magistrates having passed the annulled competition to become specialists could be attributed the merit of having passed it notwithstanding its nullity – the notion of “specialist” apparently still required either legislative development or additional judicial interpretation to be applied in practice. The Supreme Court did just that in its judgment of 3 April 2019, and, as a consequence, it ruled that the post should not be awarded to the applicant but to another candidate who was also considered a specialist and who had more seniority in the judiciary than him. The Court cannot conclude that in doing so, the Supreme Court manifestly contradicted its own previous findings. 17.     The Court notes that the impugned judgment provided ample reasoning to reach a conclusion which reflected the legislator’s stance on judicial specialisation. As explained by the Supreme Court, this was inferred from various legal provisions which required specialisation to be taken into account in competitions for relevant posts in the judiciary career, including an Institutional Law adopted in 2015, that is, after the specialisation tests for magistrates in the criminal jurisdiction had been annulled. Not to observe those provisions would have rendered that legislation de facto inoperative; this, in turn, would have been an arbitrary interpretation of the legal regime. 18.     The Court also considers that the Supreme Court’s conclusion was consistent with its previous rulings as regards those magistrates who, in good faith, had sat and successfully passed a specialisation test which was later declared null based on formal grounds, and whose merits had to be acknowledged. 19.     Lastly, the Court observes that the impugned judgment was adopted after hearing the applicant, whose arguments were addressed and answered. 20.     In the light of the above, the Court concludes that the domestic court’s interpretation of the legal regime at issue was neither arbitrary nor manifestly unreasonable. Consequently, there is no appearance of a violation of the applicant’s rights under Article 6 § 1 of the Convention, either from the perspective of legal certainty or from that of adequate reasoning. The application is therefore manifestly ill-founded within the meaning of Article   35   §   3   (a) of the Convention and must be rejected pursuant to Article   35   §   4. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 29 August 2024.     Martina Keller   Mārtiņš Mits   Deputy Registrar   President