The ECHR ruling of July 20, 2021 in the case of Lockifer v. Belgium (complaint No. 79089/13 and 2 other complaints).
In 2013, the applicants were assisted in the preparation of complaints. Subsequently, the complaints were consolidated and communicated to Belgium.
The case is being appealed against the absence of a judicial remedy in connection with the suspension by the Belgian Supreme Council of Justice of one of the members of this council, who is not a judge, from performing his duties. Article 6 of the Convention applies to the case. There has been a violation of article 6, paragraph 1, of the Convention in the case.
THE CIRCUMSTANCES OF THE CASE
The applicant was a "non-judicial" member of the Belgian Supreme Council of Justice (hereinafter referred to as the Council). After the general meeting of the Council members, she was suspended from performing her professional duties on the basis of a criminal case initiated against her earlier. Subsequently, the period of suspension of her duties was extended for a total of almost two years. The applicant claimed that she had no judicial remedies at her disposal that would allow her to appeal the Council's decision.
LEGAL ISSUES
Regarding compliance with article 6, paragraph 1, of the Convention.
(a) Applicability. The question of the applicability of paragraph 1 of Article 6 of the Convention in its civil aspect to the case was considered based on the criteria developed in the above-mentioned Ruling of the Grand Chamber of the European Court of Justice in the case "Vilho Eskelinen and Others v. Finland" (Vilho Eskelinen and Others v. Finland) and applied, in particular, to disputes concerning judges (see the Ruling of the Grand Chamber of the European Court of Justice in the Baka v. Hungary case (See: The Ruling of the Grand Chamber of the European Court of Justice in the Baka v. Hungary case Hungary) dated June 23, 2016, complaint No. 20261/12 // Precedents of the European Court of Human Rights. Special issue. 2017. N 10.); The Decision of the Grand Chamber of the European Court in the case "Denisov v. Ukraine" (Denisov v. Ukraine) (See: The Decision of the Grand Chamber of the European Court in the case "Denisov v. Ukraine" (Denisov v. Ukraine) dated September 25, 2018, complaint N 76639/11 // Precedents of the European Court of Human Rights. Special issue. 2018. N 11.)).
(i) The existence of a dispute about the law. There is no doubt that the decision of the general meeting of Council members to suspend the applicant's performance of her duties in the Council structure led to a dispute about the exercise of her duties as a member of the Council. The dispute was true and serious, as she challenged the legality of the measure applied to her.
According to the Belgian Judicial Code, the applicant was elected a member of the Council for a four-year renewable term. Thus, in accordance with the legislation of this State, she had the right to work in her position for the entire prescribed period. Also, for the entire mentioned period, the applicant was elected a member of the Board of the Council.
The purpose and objective of the appealed interim measure was to prevent the applicant from fulfilling her professional duties as a member of the Council before making a final decision on her criminal case. In practice, this led to her suspension from office for almost two years. Consequently, the contested measure was crucial for the exercise of the right in question.
(ii) Whether the right in question was civil. The applicant was elected a member of the Council for a fixed term and could not be removed from office by a decision of the Belgian Senate, which appointed her to the post. The applicant performed her duties under the direction of the general meeting of the Council members, which had the right to terminate her powers, and received remuneration for her work as a member of the Board of the Council. In addition, the suspension of the applicant's powers, carried out by the general meeting of Council members, was based on the opinion of the assembly that the initiation of criminal proceedings against the applicant was detrimental to the proper work of the Council. In the light of the above and from the point of view of the classification of the rights and obligations under consideration, the dispute between the applicant and the Council was of the nature of an employment dispute regarding the way in which the applicant exercised or could continue to exercise her duties in the Council. The dispute took place between the applicant and the general meeting of the members of the Council, the body responsible for the proper functioning of this institution, which on this basis had the right to exercise some degree of supervision over the applicant. Despite the fact that the applicant performed her duties within the framework of an institution whose independence was guaranteed by the Belgian Constitution, internal labor disputes, such as the "ordinary labor dispute", had "civil" elements sufficient to give rise to the presumption that the affected right was of a "civil" nature.
In addition, Belgian law did not explicitly exclude the category of positions or persons in question from the scope of the right of access to the court.
However, there was no special relationship of trust and loyalty between the applicant and the State that would justify excluding the dispute between the applicant and the Council from the scope of article 6 of the Convention.
Based on the above, there was a "dispute" about "civil law". Consequently, the applicant, during the proceedings concerning the suspension of her powers in the Council, was entitled to the protection provided by paragraph 1 of article 6 of the Convention.
RESOLUTION
The provisions of article 6, paragraph 1, of the Convention are applicable to the present case.
(b) The substance of the complaint. It followed from the relevant legislation and the Belgian Constitution that the Council was an administrative authority. Since his duties did not include dispute resolution, he was not a judicial body. On the basis of the above, the European Court concluded that the Council was not a "court" within the meaning of paragraph 1 of Article 6 of the Convention.
The applicant refrained from appealing the Council's decision to suspend her duties on the grounds that the legislation of the respondent State did not provide her with an effective remedy. The Belgian authorities considered that the applicant should have appealed the decisions in question to the Council of State or the Belgian courts.
Nevertheless, the Belgian authorities have not demonstrated the existence of any remedies that could allow the applicant to obtain a review by the courts of the respondent State of the decision to suspend the applicant's performance of her duties in the Council and to cancel or suspend the execution of such a decision. Accordingly, the Belgian authorities' objection to the non-exhaustion of the remedies provided by Belgian law should have been rejected.
It also followed from the above that the appealed decisions were not rendered by a court or other body performing judicial functions and could not be reviewed by this body. Thus, the applicant was deprived of the right to access the court to appeal against the measure in the form of suspension of her duties in the Council.
RESOLUTION
In the case, there was a violation of paragraph 1 of article 6 of the Convention (adopted by six votes in favor with one against).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicant 12,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.