CEDH · CASELAW;CLIN;ENG — 20 juillet 2021

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Belgium - 79089/13, 13805/14 and 54534/14 Judgment 20.7.2021 [Section III] Article 6 Civil proceedings Article 6-1 Access to court Absence of a judicial remedy to review the suspension by the High Judicial Council of one of its non-judicial members: Article 6 applicable; violation Facts – The applicant was a “non-judicial” member of the High Judicial Council (CSJ). She was suspended from all her duties by the general meeting of the CSJ after criminal charges were brought against her. Her suspension was subsequently extended to almost two years in total. The applicant alleged that she had had no judicial remedy by which to challenge the CSJ’s decisions. Law – Article 6 § 1: 1. Applicability – The issue of the applicability of the civil limb of Article 6 § 1 was determined according to the criteria set forth in the judgment in Vilho Eskelinen and Others v. Finland [GC], as applied in particular to disputes concerning judges ( Baka v. Hungary [GC] and Denisov v. Ukraine [GC]). (a) Existence of a dispute concerning a right – It was beyond doubt that a dispute over the applicant’s performance of her duties as a member of the CSJ had arisen out of the decision by the general meeting of the CSJ to suspend her from all her duties within that body. The dispute had been genuine and serious, with the applicant contesting the lawfulness of the measure taken concerning her. Under the Judicial Code, the applicant had been elected as a member of the CSJ for a renewable four-year term. Hence, in principle, she had a right under domestic law to serve her full term of office. She had also been elected as a member of the bureau for the entire duration of that term. The aim and the effect of the interim measure in question had been to prevent the applicant from performing her duties as a member of the CSJ pending a final decision in the criminal proceedings. This had resulted in practice in a suspension of almost two years. Hence, the measure had been decisive for the right in issue. (b) Whether the right in issue was a civil right – The applicant had been elected as a member of the CSJ for a fixed term and could not be removed from the position by the Senate, the body which had appointed her. She performed her duties under the authority of the general meeting of the CSJ, which had the power to end her term of office, and was remunerated for her work as a member of the bureau. Furthermore, the suspension ordered by the general meeting had been based on its view that the bringing of charges against the applicant was detrimental to the proper functioning of the CSJ. In the light of these considerations, and from the perspective of the classification of the rights and obligations in issue, the dispute between the applicant and the CSJ had been an employment-related dispute concerning the manner in which the applicant was performing or could continue to perform her duties within the CSJ. The dispute was between the applicant and the CSJ’s general meeting, the body responsible for ensuring the proper functioning of the institution and which was entitled on that basis to exercise a degree of supervision over the applicant. Despite the fact that the applicant performed her duties within an institution whose independence was guaranteed under the Constitution, the internal employment-related dispute, like “ordinary labour disputes”, had “civil” elements of enough significance to give rise to the presumption that the right in issue was a “civil” right. Furthermore, the domestic legislation did not expressly exclude the post or category of persons in question from the right of access to a court. Likewise, there had been no special bond of trust and loyalty between the applicant and the State such as to justify excluding the dispute between the applicant and the CSJ from the scope of Article 6. It followed from the above considerations that there had been a “dispute” over a “civil right”. Accordingly, the applicant had been entitled, in the proceedings concerning her suspension from her duties within the CSJ, to the protection afforded by Article 6 § 1. Conclusion : Article 6 § 1 applicable. 2. Merits – According to the relevant constitutional and statutory provisions, the CSJ was an administrative body. As it was not its task to determine disputes, it did not constitute a court. The Court inferred from this that it did not constitute a “tribunal” within the meaning of Article 6 § 1. The applicant had not appealed against the CSJ’s decisions suspending her from her duties, arguing that no effective remedy was available under domestic law. In the Government’s view, she should have challenged the decisions in question before the Conseil d’État or in the courts. However, the Government had not demonstrated the existence of any remedy enabling the applicant to have the decision suspending her from the CSJ reviewed by the courts and to obtain the setting-aside or a stay of execution of that decision. The Government’s objection of failure to exhaust domestic remedies was therefore dismissed. It also followed from the above considerations that the decisions in issue had not been taken by a “tribunal” or other body exercising judicial powers and were not subject to review by such a body. Hence, the applicant had been deprived of the right of access to a court in order to appeal against the measure suspending her from her duties within the CSJ. Conclusion : violation (six votes to one). Article 41: EUR 12,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed. (See also Vilho Eskelinen and Others v.   Finland   [GC], 63235/00, 19 April 2007, Legal summary ; Baka v. Hungary [GC], 20261/12, 23 June 2016, Legal summary ; Paluda v. Slovakia , 33392/12, 23   May 2017, Legal summary ; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal summary ; Camelia Bogdan v. Romania , 36889/18, 20   October 2020, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes