Independence, trust

Judicial Self-Government (Judicial Council, Court Presidents), role of national higher courts.

Vrhovno sodišče Republike Slovenije

Judgment U 2/2023-28

12 September 2023

ECLI:SI:VSRS:2023:U.2.2023.28

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Soft law:
-    CCJE Opinion no. 10 (2007)
-    CCJE Opinion no. 24 (2021)

Tsanova - Gecheva v Bulgaria, App no. 43800/12, 15 September 2015.

Selection of supreme court judges, trust in the Judicial Council, the scope of review of the selection decisions, (in)sufficient reasoning of the Judicial Council, comparison between the candidates, vague selection criteria, transparency of the procedure, alleged discrimination, the content of the Judicial Council’s record, application of European standards.   

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Constitutional Court of the Republic of Slovenia:
Decision Up-360/16 of 18. 6. 2020, para. 11.-15.
Decision Up-1094/18-13 of 21. 2. 2019, para. 10.
Order Up-184/16-13 of 1. 7. 2017, para. 10.
Decision Up 757/19-29 of 20. 2. 2020, para. 10-15.

Supreme Court of the Republic of Slovenia:
Judgment U 35/99 of 14. 6. 2000
Judgment X Ips 333/2015 of 21. 7. 2016, paras. 18, 19.
Judgment U 2/2019 of 12. 6. 2019, para. 11.
Judgment U 7/2019-8 of 16. 12. 2019, para. 31.
Judgment U 6/2020 of 7. 10. 2020, para. 31.
Judgment U 7/2020, para. 13.

The Supreme Court of the Republic of Slovenia (the Supreme Court, the SC) reviewed a decision of the Judicial Council of the Republic of Slovenia (the Judicial Council, the JC), which selected a candidate for the vacant post of the Supreme Court. One of the unsuccessful candidates challenged the decision of the JC before the SC, arguing that he has been discriminated, that the reasoning of the JC was insufficient as it did not include a comparison between the candidates or at least the prevailing reason for selection, and that the JC failed to observe the requirement of the Judicial Service Act (the JSA) to make a record of consultation and voting.

The Supreme Court first described the legal background and standards applicable in the case at hand. It relied on its previous case law and on the CCJE Opinion No. 24 on the evolution of the Councils for the Judiciary and their role in independent and impartial judicial systems. It noted that according to this opinion, the role of the councils for the judiciary is to safeguard judicial independence. “These bodies must work in a transparent fashion, giving reasons for its decisions and procedures and be accountable this way” (para. 18 of the Opinion No. 24). Relying on para. 20 of the Opinion No. 24, the Judicial Council underlined that “the ECtHR and the CJEU have decided that the appointment of judges is of great importance for an independent judiciary” and ruled that “the selection or recommendation of new judges for appointment and promotion based on merit is a crucial task.” It further quoted para. 20 and 21 of the Opinion: “Where this is a responsibility for the Council for the Judiciary, it must be exercised independently and accountably […] Therefore, it is crucial that Councils work on the basis of ethical rules and, so far as possible, specific objective criteria for appointments and promotions and evaluate each candidate in a transparent procedure concluding with a reasoned decision. Judges who think that their rights have been disregarded must have a right to judicial review.”

What is the extent to which the selection of the Judicial Council should be reasoned and what type of judicial review of selection decisions is in order?

The SC relied on Article 32 of the Judicial Council Act that, according to which the Judicial Council is autonomous and independent when it decides on selection of judges (para. 19). It has discretion and a wide margin of appreciation, which was confirmed many times by the Constitutional Court. The judicial review is limited to the assessment of the alleged breaches of the rules of procedure, the incorrectness of the findings of fact, the failure to fulfil the conditions for judicial office and the non-application of the criteria laid down in Article 28 of the Judicial Service Act (the JSA). Regarding the latest, the SC checks only whether the decision is manifestly unreasonable and whether it infringes the fundamental human rights of the candidates (paras. 22, 27). The SC then relied on the decision of the Constitutional Court (the CC), Up-757/19, para. 10, ruling that the procedure must be transparent and fair and based on objective criteria, and must take into account all the professional qualities of the candidates. The procedure has to be open to the public, since the public has the right to know, how judges are selected. And the unsuccessful candidates have the right to know, why they were not selected.

The SC continued that the reasoning for the selection decision must be sufficiently "complete" to enable the unsuccessful candidate to verify the conduct of the procedure and the fulfilment of the conditions, criteria or qualifications of the successful candidate. By its very nature, the reasoning is not intended as a comparison between candidates, but rather as a justification of why a particular candidate has been selected, and therefore does not include information on the other candidates. The reasoning is not intended as a comparison between the candidates. The essence of the selection decision is not a value assessment of the selected candidate in relation to the other (non-selected) candidates, but a comprehensive and reasoned presentation of the candidate proposed for appointment by the Judicial Council. The SC therefore rejected the applicant’s complaint regarding the insufficient reasoning of the Judicial Council’s selection decision.

Whether the selection decision of the Judicial Council violated the principle of equality?

The applicant argued that for the other two candidates, that were invited to the “interview” before the Judicial Council, the Judicial Council demanded that a new judicial service evaluation is done, whereas it has not required the same for the applicant. The SC explained that the Judicial council did not discriminate the applicant, since the three year evaluation period has not expired for the applicant, whereas it did for the two remaining candidates. There were therefore grounds for different treatment of the applicant.

Whether the record of Judicial Council’s session was adequate?
 
According to Article 18(6) of the JSA, the Judicial Council is required to “make a record on the consultation and voting in each phase of the proceedings.” The applicant argued that this provision requires the Judicial Council to communicate at least the prevailing reason for the decision. The Supreme Court disagreed. It ruled that such a requirement does not follow from the JSA and argued, relying on the CCJE Opinion No. 24, para. 42, that there is a justified interest in keeping the consultation of the Judicial Council secret. It relied on Articles 81 (2) of the General Administrative Procedure Act (the GAPA), which provides that “the record on the consultation and voting shall record the details of the personal composition of the collegial body, the matter in question and a brief summary of what has been decided, together with any special opinions of the members.” According to the SC, Article 18 (6) of the JSA has to be understood along the lines from Article 81 (2) of the GAPA.

The Supreme Court thus rejected the applicant’s arguments and upheld the decision of the Judicial Council.

Whether the Supreme Court has adequately construed the legal standards against which it assesses the selection, made by the Judicial Council, especially given the developments in the case law of the ECtHR and the CJEU?

The applicant extensively argued that the Slovenian Courts, especially the Supreme Court have not yet incorporated the bolstered standards of the CJEU and the ECtHR in their jurisprudence. He challenged the main premise, upon which the approach of the Supreme Court relies, namely the autonomy and trust in the Judicial Council. He relied on numerous cases from both supranational courts. These arguments did not convince the Supreme Court, which did not rely on any of the ECtHR or CJEU cases, referred to by the applicant. The SC only invoked Tsanova-Gecheva v Bulgaria.

It would be beyond the purpose of this case note the thoroughly analyse every applicant’s reference to the supranational law. To illustrate the main point of disagreement between the applicant on the one hand and the Judicial Council and the SC on the other hand – the issue of trust in the judicial council – the following argument from the applicant is emblematic. The applicant argued that if the CJEU and the ECtHR adopted a similar stance – that the authorities entrusted with judicial selection should merely be trusted they will perform their duties in public interest – we would never witness the great development of the European standards in this field. Relying on Astrađsson v Iceland, paras. 233 and 283, he added that the logic is reverse: only once the procedural guarantees stemming from Article 6 ECHR and Article 47 of the Charter are observed, the condition for the public trust in the judiciary is fulfilled.  

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consistent interpretation

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The Supreme Court relied on the case law of the Constitutional court and a single case from the ECtHR. It also relied on the CCJE Opinion no. 24. 

The references on the caselaw of the Constitutional Court and the CCJE opinion gave the decision of the Supreme Court a higher legitimacy.  

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Administrative Court of the Republic of Slovenia, Decision and Order IV U 213/2014-28 of 5 November 2014 – analysis available at: https://cjc.eui.eu/data/data/data?idPermanent=248&triial=1

Constitutional Court of the Republic of Slovenia, Decision Up-757/19-14 of 20 February 2020 – available at: https://cjc.eui.eu/data/data/data?idPermanent=257&triial=1

For a more detailed account on the topic of selection of judges in Slovenia and the issue of (in)sufficient reasoning of the decisions of the Judicial Council, see: TRIIAL national reports Belgium, Hungary, Italy, Poland, Portugal, Romania, Slovenia, Spain, The Netherlands, p. 140-142. – available at: https://cadmus.eui.eu/handle/1814/74814

For a similar Spanish case, in which the ECtHR upheld the discretionary selection of a candidate, who was inferior in all objective criteria but superior in subjective criteria compared to the unselected candidate, see ECtHR, Alonso Saura v Spain, App. no. 18326/19, 8 June 2023.

See also a recent CJEU case on judicial promotion in Romania: AFJR, C-216/21, 7 September 2023.

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https://www.sodnapraksa.si/?_submit=i%C5%A1%C4%8Di&database[SOVS]=SOVS&q=upravni%20oddelek%20pooblastilo&showType=div&order=changeDate&direction=desc&rowsPerPage=20&page=0&id=2015081111470379

Mohor Fajdiga, University of Ljubljana