Up-757/19

Reference no.:
Up-757/19
Objavljeno:
Official gazette RS, No. 46/2020 and OdlUS XXV, 32 | 20.02.2020
ECLI:
ECLI:SI:USRS:2020:Up.757.19
Abstract:
The Judicial Council decides on the right of a candidate to run for the office of Judge of the Supreme Court in a fair (i.e. consistent with the Constitution and law) procedure under equal conditions as other candidates. A candidate may protect such right by accessing the file of the Judicial Council [regarding his or her selection procedure] and thus verifying whether the opinion of the relevant court department (and the decision of the Judicial Council) is based on objective criteria that prove the professional competence and required personal qualities of the selected candidate. The procedure for selecting the most appropriate candidate before the Judicial Council entails discretionary decision-making. The judicial review of the decision of the Judicial Council therefore does not include a review as to which out of several candidates who fulfil the statutory requirements and criteria is professionally and personally the most appropriate for the position, but merely a review of the fairness of the procedure. The selection procedure is fair (Article 22 of the Constitution) if it is transparent and if the selection is based on objective criteria that confirm the professional competence and required personal qualities of the selected candidate. 
 
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[Publisher's Note: The full text of this Decision/Order is available only in Slovene. The text published below is a summary prepared for the annual report.]
 
The Procedure for Selecting Candidates for the Office of Supreme Court Judge before the Judicial Council
 
 
In case No. Up-757/19, dated 20 February 2020 (Official Gazette RS, No. 46/20), the Constitutional Court decided on the constitutional complaint of an unsuccessful candidate for the office of Supreme Court judge. The complainant challenged the Supreme Court judgment that rejected her lawsuit against the decision of the Judicial Council to propose to the National Assembly another candidate for the office of judge of the Supreme Court. The complainant alleged that the selection procedure was unfair as she was not served the opinion of the relevant department of the Supreme Court as regards which of the candidates it deemed the most appropriate, although the Judicial Council stated in the challenged decision that the fact that the proposed candidate was almost unanimously assessed as the most appropriate one also by the Supreme Court judges carried decisive weight in the selection. 
 
In accordance with established constitutional case law, an individual who applies for the office of judge does not have the right to fill such position but has the right to apply for such under equal conditions as other candidates. The Constitutional Court reviewed whether the position of the Supreme Court that the Judicial Council was not required to serve the relevant court department’s opinion on the complainant and thus enable her to make a statement thereon was in conformity with the complainant’s right to be heard determined by Article 22 of the Constitution.
 
The procedure for selecting the most appropriate candidate before the Judicial Council entails discretionary decision-making and a judicial review of the decision of the Judicial Council is accordingly limited. It must be evident from the decision on the selection (i) whether the proposed candidate fulfils the statutory requirements and criteria for the office of judge for which he or she applied, and (ii) what the substantive reasons are that justify the selection of a specific person. When conducting the selection procedure, the Judicial Council must observe the right of the individual candidate to apply for the office of judge of the Supreme Court in a fair (i.e. consistent with the Constitution and law) procedure under equal conditions as other candidates. Within this scope, the candidates are guaranteed judicial protection against the selection decision in proceedings for the judicial review of administrative acts.
 
The Constitutional Court clarified that a procedure before the Judicial Council is fair (Article 22 of the Constitution) if it is transparent and if the selection is based on objective criteria that confirm the professional competence and required personal qualities of the selected candidate.  
 
A candidate may effectively protect his or her right to apply for the office of Supreme Court judge in a fair procedure by accessing the file of the Judicial Council regarding his or her selection procedure in order to verify whether the decision of the Judicial Council is based on objective criteria that prove the professional competence and required personal qualities of the selected candidate. Only this may be the subject of a judicial review in proceedings before the Supreme Court. A judicial review of the decision of the Judicial Council namely does not include a review as to which out of several candidates who fulfil the statutory requirements and criteria is professionally and personally the most appropriate for the position, but merely a review of the fairness of the selection procedure.
 
The Constitutional Court established that the complainant did not allege that she was denied access to the file of the Judicial Council, which also contained the opinion of the relevant department of the Supreme Court. She also did not allege that the selection of the most appropriate candidate was based on criteria that the Judicial Council may not consider. She also did not allege such in her constitutional complaint. In this light, the Constitutional Court held that the transparency and consequently the fairness of the procedure before the Judicial Council was guaranteed to the complainant by the possibility of accessing the file of the Judicial Council regarding her selection procedure. Therefore, the position of the Supreme Court that the Judicial Council was not required to enable the complainant to make a statement on the opinion of the relevant court department does not violate Article 22 of the Constitution, which ensures the complainant a fair procedure before the Judicial Council.
 
 
 
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Type of procedure:
constitutional complaint
Type of act:
individual act
Applicant:
Vesna Bergant Rakočević, Ljubljana
Date of application:
04.07.2019
Date of decision:
20.02.2020
Type of decision adopted:
decision
Outcome of proceedings:
dismissal
Document:
AN04004