CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 octobre 2020

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She is represented before the Court by Mr T.R. Fernández Rodríguez and Mr J.R. Fernández Torres, lawyers practising in Madrid. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a judge in the Audiencia Provincial of Murcia. In 2014 she presented her candidacy to the Presidency of the High Court of Murcia ( Tribunal Superior de Justicia ). According to the call for candidates issued by the General Council of the Judiciary on 14   October 2014, which was published in the Official Bulletin on 16   October 2014, it was a discretional appointment and the post was of both a jurisdictional and administrative nature. The candidates’ merits to be assessed for the post included length of active service in their judicial career, exercise of posts corresponding to the civil and criminal jurisdictional orders, length of service in judicial bodies comprising several judges, judicial decisions of special relevance and technical expertise relevant to the exercise of the judicial function. Moreover, the abilities for direction, coordination and management of material and human resources linked to judicial posts of administrative and judicial nature, participation in administrative bodies of the Judiciary and especially in administrative bodies of courts of justice, knowledge of the judicial bodies in the relevant region, and an action plan for the functions, would be of additional value. As complementary merits, exercise of legal professional or activities of no jurisdictional nature but of analogous relevance would be taken into account. Two other persons applied for the post: A.P.G. (who later withdrew his candidacy) and M.A.P.H. In a decision of 29 January 2015 the General Council of the Judiciary appointed M.A.P.H. The decision stressed the merits of the candidate and argued that his profile, considered as a whole, was better for the post, even though his length of service was shorter than that of the other applicants and he had no experience in judicial bodies comprising several judges. One of the members of the General Council of the Judiciary presented a dissenting opinion to the decision of 29 January 2015. Five of the members of the Council adhered to this dissenting opinion, in which it was pointed out that the applicant had a much longer length of service (more than thirty ‑ one years, while the other candidate’s length of service was about twenty-three years), and thus there was a separation of 1,160 places between them in the judicial career’s seniority list (the applicant being in the 280th place, and the other candidate in place number 1,440). It also underlined that the applicant had twenty-three years’ experience as a member of judicial bodies comprising several judges, whereas the chosen candidate did not have any experience in these types of courts. Finally, it pointed out that the applicant had submitted thirty-four resolutions in civil matters and seventeen in criminal matters, the latter referring to crimes sentenced by the High Court. M.A.P.H., on the other hand, had only submitted five resolutions issued in criminal proceedings for minor crimes. The dissenting opinion concluded that, taking into account objective data, the applicant should have been appointed for the post. Moreover, the dissenting opinion pointed out that the appointment did not respect the principles of merit and ability, it failed to meet the requirements of the call for candidacies, and it amounted to a clear case of misuse of power, regardless of the fact that the applicant was a woman. But in this case, moreover, the appointment amounted to a clear case of discrimination on grounds of gender. Until now, it argued, the under-representation of women in positions of responsibility in judicial careers (there was only one female President in seventeen High Courts) had been justified by the fact that there were no women who were senior enough, but women began to have the necessary seniority. It had however been decided to appoint a male magistrate who was more than 1,000 places behind the applicant in the career’s seniority list. The applicant contested the decision of the General Council of the Judiciary before the administrative courts arguing, inter alia , that its reasoning was insufficient because it did not compare the merits of the three candidates, but only pointed out that the chosen candidate was the most appropriate for the post. In relation to this she stressed that her objective merits (such as her seniority, the number of resolutions presented with the candidacy, or her experience in higher judicial bodies comprising several judges, inter alia ,) were superior to those of the other candidate. The applicant also argued that the decision of the General Council of the Judiciary had ignored a series of legal provisions (Article 326.1 of the Organic Law 6/1985, of 1   July, on the Judiciary; Article 16 of the Organic Law 3/2007, of 22   March, on effective equality between men and women; the Agreement of the Plenary of the General Council of the Judiciary of 22   June 2005; and Article   17 of the Regulation of the Council 1/2010, of 25   February), when it ignored the principles of merit and ability and the provisions for the promotion of women in the Judiciary. The applicant finished by pointing out that the decision incurred discrimination on grounds of gender, and requested that the post be assigned to her either because the chosen candidate did not meet the requisites of the call for candidacies, or because his merits were inferior to hers, or because Law   3/2007 and the Agreement of the Council of 22 June 2005 gave her preference, or due to all of these reasons combined. In a judgment of 10 May 2016, the Administrative Chamber of the Tribunal Supremo upheld the applicant’s appeal and declared the decision of the Council null and void. The court argued, inter alia , that when comparing the objective merits of the two candidates, the applicant was in a more advantageous position (especially concerning her seniority, length of exercise in judicial bodies comprising several judges, or experience in civil matters). From this point of view, the reasoning of the decision of 19   January 2015 was not sufficient in order to justify the appointment of M.A.P.H., because it did not explain why the assessment of the action plan presented by the latter outweighed the applicant’s higher objective merits. The court argued that it was not for the court to appoint the applicant to the post, but to declare the decision null and void so that the General Council of the Judiciary could decide again on the subject, as there was a margin of discretion in the decision and the applicant’s merits were not so clearly superior to the other candidate’s as to eliminate it. As a result, the court declared the decision null and void and ordered the selection process to be resumed at the point of the decision on the candidate by the General Council of the Judiciary, which should decide again in a reasoned decision “in the terms pointed out in the legal grounds of this judgment”. Two separate opinions were presented to this judgment. The first one, a concurring opinion signed by one of the members of the court, and to which another member adhered, pointed out that, the grounds of the judgment being correct, the judgment should have appointed the applicant to the post and not ordered the selection process to be repeated. The second one, a dissenting opinion signed by one of the magistrates and to which nine other members adhered, considered that the decision of 19   January 2015 was sufficiently reasoned and that it should not have been declared null and void. In a new decision of 26 May 2016 the General Council of the Judiciary decided to remove M.A.P.H. from the post following the decision of the Tribunal Supremo and then appoint him again, this time reasoning exhaustively why his merits, especially his action plan, were better than the applicant’s. In particular, the Council pointed out that his action plan was clearly superior to the applicant’s, and that he was better than her also concerning the assessment of other merits. For instance, it considered that he had longer and more varied experience in administrative bodies of the judiciary, and his experience and abilities for direction, coordination and management of material and human resources were more adequate than the applicant’s. The Council also stressed that the rules about promotion of women only applied when the merits of the candidates were substantially similar, which was not the case because M.A.P.H. was clearly better suited to the post. Two different dissenting opinions were presented in relation to this decision. The first one, concerning the inclusion on the agenda of the Council of the decision to remove M.A.P.H. and to appoint a new candidate, was presented by one of the members of the council and subscribed by another four. This dissenting opinion pointed out that M.A.P.H.’s removal from the post should have been voted for separately and published in the official gazette before deciding on the appointment of the post, a decision that should have been taken in the following meeting of the Council. The second dissenting opinion, subscribed by five members of the Council, argued that the decision of 26 May 2016 was clearly arbitrary because it ignored the judgment of the Tribunal Supremo of 10   May 2016, and gave an unjustified weight to M.A.P.H.’s merits, especially those concerning the exercise of posts of an administrative nature. The dissenting opinion argued that the objective merits of the applicant were higher to those of M.A.P.H.’s, and for the exercise of the post in question experience in judicial posts was more important than in administrative ones. The applicant contested the new decision of the General Council of the Judiciary before the courts. The applicant argued, inter alia , that the General Council of the Judiciary had not correctly executed the previous judgment of the Tribunal Supremo, because instead of only explaining why the action plan of the other candidate was superior to all of her objective merits, and why the rule of preference for women had not been followed, it had proceeded with a new assessment of the candidates’ merits. She also argued that the Council had given an undeserved weight to the assessment of the other candidate’s action plan, that it had incurred an abuse of power in its decision and arbitrariness, and that the decision had incurred discrimination on grounds of gender. The Plenary of the Administrative Chamber of the Tribunal Supremo dismissed the applicant’s appeal in a new judgment of 27 June 2017. The court found that the execution of its previous judgment by the General Council of the Judiciary was correct, inter alia , the new decision of the General Council of the Judiciary had stated that the merits of an objective nature were superior in the applicant, but it had also given enough reasons to justify that the assessment of the merits of a subjective nature and the action plan were favorable to the chosen candidate. On the whole, the court considered that the reasoning of the decision of 26 May 2016 was correct, did not incur arbitrariness nor could it be considered as a deviation of power, and was not discriminatory on grounds of gender. In particular, it stressed that the profiles of the two candidates were not equivalent, that the decision had justified why the merits of M.A.P.H. were superior, and that according to the law it was only in cases of equality of merits that preference for women should be given in the appointment of posts. Three dissenting opinions were presented to this judgment. The first one, signed by thirteen of the thirty-two judges of the Chamber, stressed that the decision of the General Council of the Judiciary of 26 May 2016 was not a real execution of the previous judgment of the Supreme Court of 10   May 2016, and that in fact the former was in contradiction with the latter. It focused on the nature of the discretional powers of the General Council of the Judiciary, and on the control of these discretional powers by the judiciary. The second dissenting opinion, signed by one judge, insisted that the decision of the General Council of the Judiciary had incurred arbitrariness. The third dissenting opinion, signed by two other judges, underlined that the decision of the General Council of the Judiciary should have been declared null and void because it had not executed properly the previous judgment of the Supreme Court and was thus contrary to Articles   24 and 118 of the Spanish Constitution (right to effective protection by the courts and obligation to full execution of judgments). The applicant filed then an amparo appeal with the Constitutional Court, invoking Articles 24 § 1 (right to obtain the effective protection of the courts) and 14 (principle of equality before the law) of the Spanish Constitution. Concerning Article 24 § 1, the applicant argued again that the General Council of the Judiciary had not correctly executed the judgment of the Supreme Court of 10 May 2016; concerning Article 14, the applicant alleged discrimination on grounds of gender. The Constitutional Court did not admit the amparo appeal in a reasoned decision ( auto ) of 13 November 2018. The court, referring to the case-law of the European Court of Human Rights on execution of judicial decisions, concluded that there was no violation of Article 24 § 1 of the Constitution. Concerning Article 14, and quoting the case-law of the European Court of Human Rights and the Court of Justice of the European Union regarding positive actions, the Constitutional Court concluded that, contrary to what the applicant argued, there was not an automatic preference for women over men in the appointment of judicial posts and there was no evidence at all that the applicant had not been chosen for the post because she was a woman. Consequently, there was not a manifest infringement of the Constitutional rights invoked. Three dissenting opinions signed by four of the eleven judges of the Constitutional Court were joined to the decision stating that either the inexistence of an infringement of constitutional rights was not manifest or that the said infringement had occurred. Relevant domestic law The relevant provisions of the Spanish Constitution read as follows: Article 14 “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” Article 23 “1. Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage. 2. They likewise have the right to access on equal terms to public office, in accordance with the requirements determined by law.” Article 103 “1. The public Administration serves the general interest with objectivity and acts in accordance with the principles of efficiency, hierarchy, decentralisation, deconcentration and coordination, being fully subject to justice and the law. 2. The organs of State Administration are created, directed and coordinated in accordance with the law. 3. The law shall regulate the status of civil servants, entry into the civil service in accordance with the principles of merit and ability, the special features of the exercise of their right to union membership, the system of incompatibilities, and guarantees regarding impartiality in the exercise of their duties.” Article 122 “1. The Organic Law of the Judiciary shall determine the setting up, operation and control of the Courts and Tribunals as well as the legal status of professional Judges and Magistrates, who shall form a single body, and of the staff serving in the administration of justice. 2. The General Council of the Judiciary is its administrative body. An organic law shall set up its statutes and the system of incompatibilities applicable to its members and their functions, especially in connection with appointments, promotions, inspections and the disciplinary system. 3. The General Council of the Judiciary shall consist of the President of the Supreme Court, who shall preside it, and of twenty members appointed by the King for a five-year term, amongst whom shall be twelve judges and magistrates of all judicial categories, under the terms established by the organic law, four nominated by the Congress of Deputies and four by the Senate, elected in both cases by three-fifths of their members from amongst lawyers and other jurists of acknowledged competence and over fifteen years of professional experience.” The relevant provision of the Organic Law 6/1985, of 1   July, on the Judiciary, reads as follows: Article 326 “1. Higher appointments and promotion in the judicial career for magistrates and judges are based on the principles of merit and capacity and also on their suitability and specialization to perform the judicial duties corresponding to the different appointments. (...)” The relevant provision of the Organic Law 3/2007, of 22   March, of effective equality between women and men, reads as follows: Article 16 – Appointments made by Public Authorities “Public Authorities will have regard to the principle of equilibrate presence of women and men in the appointments and designations of the posts of responsibility that are of his competence.” The relevant provisions of Regulation 1/2010, of 25   February, of the General Council of the Judiciary, regulating the provision of posts of discretional appointment in judicial bodies (modified by Agreement of 31   March 2016, of the Plenary of the General Council of the Judiciary), read as follows: Article 3 – Guiding Principles “1.   The proposals of appointment for the provision of posts of discretional nature will adjust to the principles of merit and ability for the exercise of the judicial function and, where appropriate, of the administrative function of the post in question. In the appointment of posts referred to in this Regulation, measures favouring the promotion of women with merits and ability will be promoted and developed. 2. The proceeding for the appointment of posts will guarantee, with objectivity and transparency, the equality in the access to them to those who meet the necessary conditions and abilities. In this proceeding the Organic Law of the Judiciary, the present Regulation and the applicable dispositions will be strictly followed. 3. All agreements in matter of appointments will be sufficiently reasoned.” Article 17 – Proceedings before the Plenary of the General   Council of the Judiciary “In the Plenary sessions that decide the proposals of appointment, record will be kept of the reasoning of the agreement, with expression of the circumstances of merit and ability that justify the election of one of the candidates with preference over the rest. The reasoning may be made by reference, in what is coincidental, to the motivation of the proposal of the Commission of Qualification, in accordance with the provisions of paragraph 5 of the previous article.” The relevant provisions of the Agreements of 22   June 2005 of the Plenary of the General Council of the Judiciary read as follows: “Agreements adopted by the Plenary of the General Council of the Judicial Power on 22 June 2005: Thirty-six (...) 3. To promote and develop policies that encourage the promotion of women with merits and ability in the procedures for the appointment of administrative posts in the Judiciary (Presidencies of the High Courts and their Chambers and Audiencias   Provinciales ) and Magistrates of the Supreme Court. For this, when several candidates with similar merits concur, efforts will be made to facilitate the appointment of women for these posts.” The relevant provisions of the Equality Plan of the Judiciary, approved by the Plenary of the General Council of the Judiciary on 14   February 2013, read as follows: “II. Career advancement in the Judiciary (...) To comply with the objectives of the Equality Commission different activities will be carried out in this milieu: (...) 2 . To promote the removal of the deficit in the balanced representation of women in the discretionary appointments of public offices made by the Council, in teaching activities, in international relations, etc. 3 . To promote and develop policies that encourage the promotion of women with merits and abilities in the processes of appointment of administrative posts in the Judicial Career and Judges of the Tribunal Supremo . (...)” COMPLAINTS The applicant complains under Article 1 of Protocol No.   12 to the Convention and Article 14 of the Convention that the decision of the General Council of the Judiciary of 26 May 2016 and the Royal Decree appointing the Presidency of the High Court of Murcia incurred discrimination on grounds of gender, in connection with the fundamental right of access to public office and functions in conditions of equality (Articles 14 and 23 of the Spanish Constitution). She argues that this discrimination has been wrongly justified as discretion in the assessment of one of the requisites of the call for candidatures (the action plan), and underlines that in all the other requisites there was either an equality of merits between the candidates, or a superiority of the applicant over the other candidate. Finally, she points out that discrimination on grounds of gender in the appointment of higher posts in the Spanish judiciary is commonplace, and to this effect she submits statistics proving that there is a clear under-representation of women in administrative posts in the judiciary in Spain. The applicant also complains under Article 6 § 1 of the Convention that the decision of the General Council of the Judiciary of 26 May 2016 did not execute the judgment of the Supreme Court of 10   May 2016 in its own terms, which compelled the Council to issue a new decision “duly motivated in the terms noted in the legal arguments of this judgment”. The Council, in consequence, should have not carried out a new assessment of the candidates’ merits, as it did, but should have only explained why the assessment of other candidate’s action plan was in fact of more importance than the other criteria set in the call for candidatures, to the point that the latter were set aside. QUESTIONS TO THE PARTIES 1.     Has the decision of the Supreme Court of 10 May 2016, declaring the appointment made by the General Council of the Judiciary null and void for lack of reasoning concerning the objective professional merits of the candidates, been properly executed, as required by Article 6 of the Convention?   2.     Were the judicial review proceedings for the appointment of the President of the High Court of Murcia compliant with the general requirements of fairness, under Article 6 of the Convention? In particular, was the extent of such review sufficient (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 176-86, 6 November 2018)? Was the applicant discriminated against on grounds of gender in the judicial review proceedings for the appointment of the President of the High Court of Murcia under Article 14, taken in conjunction with Article 6 §   1 of the Convention?   3.     Was the applicant discriminated against on grounds of gender in the proceedings for the appointment of the Presidency of the High Court of Murcia, contrary to Article 1 of Protocol 12 to the Convention?