The European Court of Human Rights (ECHR) condemned Spain for the failure of parliament to appoint judges to the judicial council.
With today's ruling in the case of Lorenzo Bragado and others against Spain (complaints no. 53193/21 and others), brought by six Spanish judges, the European Court of Human Rights (ECHR) has condemned Spain for violating Article 6, § 1 of the European Convention on Human Rights (ECHR) - the right to a fair trial and access to justice - due to the lack of a legal procedure in Spanish legislation for timely consideration of their candidacies for members of the Supreme Judicial Council, the body responsible for managing the judiciary in the country.
The six applicants were among the list of 51 candidates for the vacant positions in the council in September 2018. After two dissolutions of parliament - in March and September 2019 - and subsequent early elections, the parliament still did not elect the new members of the Supreme Judicial Council.
The complainants took advantage of their right to appeal to the Spanish Constitutional Court and filed it in 2020, citing, among other things, prolonged inaction by the parliament. However, in 2021, the Constitutional Court rejected their appeal as time-barred, deciding that the three-month time limit for filing such an appeal started either in December 2018 when the mandate of the previous members expired or in December 2019 when the new parliament was constituted.
The ECHR unanimously ruled that the complainants have the right to participate in the procedure for the election of members of the Supreme Judicial Council, and their candidacies should have been considered by the parliament in a timely manner.
The Court establishes that the complainants had access to the court, namely the possibility to utilize the procedure for a direct constitutional appeal. However, regarding the realization of this access, the ECHR notes that the Constitutional Court did not provide reasons for considering the two dates discussed in its decision as relevant starting points for the statute of limitations for filing a constitutional appeal. Furthermore, the Constitutional Court did not address the complainants' argument that the violation continued, i.e., it had not been terminated at the time of filing the constitutional appeal. Additionally, the procedure was single-instance, which necessitated the rejection of the appeal solely on the grounds of expired statute of limitations, requiring a detailed justification. Consequently, the Court determines that the unpredictable manner in which the law providing access to a constitutional appeal was applied effectively deprived the complainants of access to justice.
The decision comes in the context of prolonged inaction on the part of several consecutive Bulgarian parliaments to conduct a procedure for the election of members from the parliamentary quota to the Supreme Judicial Council (SJC), as well as heated debates surrounding the removal of the Chief Prosecutor Ivan Geshev and the appointment of the former Deputy Chief Prosecutor Borislav Sarafov as Acting Chief Prosecutor.
"The election of new members to the Supreme Judicial Council (SJC) is urgently necessary, considering that the mandate of the current members has long expired," commented Adela Kachaunova, Director of the Program at the Bulgarian Helsinki Committee for Legal Defense.
"The endless postponement of this crucial election, which must be conducted with utmost transparency and maximum access to civilian control, puts us at risk of the old SJC choosing a new Chief Prosecutor just as it chose Ivan Geshev. Alternatively, it is possible that Borislav Sarafov could remain in this position for an extended period. Such a situation is constitutionally intolerable," added Adela Kachaunova. ◆