FIFTH SECTION
CASE OF KONSTANTINOU v. CYPRUS
(Application no. 36862/23)
 
 
 
JUDGMENT
Art 6 § 1 (civil) • Access to court • Lack of judicial review against the decision of the transitional Supreme Council of Judicature, during interim period of judicial reform, refusing to promote a judge to the post of district court president • Art 6 applicable • Genuine and serious dispute over “right” in domestic law to a fair procedure in the examination of an application for a judicial promotion • Second condition of the Eskelinen test not met • Exclusion of judicial review of the decision not in the interest of a State governed by the rule of law • Link between integrity of judicial appointment process and requirement of judicial independence • Importance of procedural safeguards and the possibility of appeal against decision affecting the career of a judge • Lack of exceptional and compelling reasons justifying absence of judicial review • Very essence of right of access to court impaired
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
7 May 2026
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Konstantinou v. Cyprus,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Kateřina Šimáčková, President,
 María Elósegui,
 Gilberto Felici,
 Diana Sârcu,
 Mykola Gnatovskyy,
 Vahe Grigoryan,
 Sébastien Biancheri, judges, 
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 36862/23) against the Republic of Cyprus lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Kostas Konstantinou (“the applicant”), on 3 October 2023;
the decision to give notice to the Cypriot Government (“the Government”) of the complaints, under Article 6 § 1 of the Convention, concerning access to a court and the impartiality of the Supreme Constitutional Court acting as second-tier Council of Judicature, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having regard to the decision taken by the President of the Chamber to appoint Mr Gilberto Felici, the judge elected in respect of San Marino, to sit as an ad hoc judge (Rule 29 § 2 of the Rules of Court), as Mr Georgios A. Serghides, the judge elected in respect of Cyprus, withdrew from sitting in the case (Rule 28 § 3);
Having deliberated in private on 24 March 2026,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns Article 6 of the Convention and the lack of judicial review available to the applicant in respect of a decision refusing to promote him to the post of district court president. THE FACTS
2. The applicant was born in 1968 and lives in Limassol. He was represented by Mr A. Demetriades, a lawyer practising in Nicosia. 3. The Cypriot Government (“the Government”) were represented by their Agent, Mr S. Angelides, Deputy Attorney General of the Republic of Cyprus. 4. The facts of the case may be summarised as follows. I. BACKGROUND TO THE CASE
5. In 2022 Cyprus enacted major judicial reforms establishing a new Supreme Constitutional Court (“the SCC”) and a Court of Appeal, both separate from the already existing Supreme Court. Those reforms also restructured the Supreme Council of Judicature (“the SCJ”), expanding its membership to include legal professionals as non‑voting participants and granting it authority over matters concerning the careers of judges, such as appointments and promotions. 6. Initially set to begin in January 2023, the implementation of the reforms was postponed until July 2023. During this interim period, a transitional SCJ composed of Supreme Court judges and non-voting legal professionals operated from August 2022 to June 2023 (see paragraphs 24-28 below). II. Procedure before the transitional Supreme Council of Judicature
7. The applicant began his career as a temporary district court judge on 3 May 2004. At the time of the events in question he was a senior district court judge and had held that position since 1 January 2019. 8. On 3 February 2023 the temporarily established transitional SCJ announced its intention to fill 17 vacancies for the post of district court president in the judicial service. 9. On 8 February 2023 the applicant applied for the above-mentioned post in accordance with the requirements set out in the second stage of the judicial promotion procedure (see paragraph 36 below). Overall, 23 candidates applied. All except for one lawyer were senior district court judges. 10. The registrar of the transitional SCJ subsequently forwarded the list of candidates, in order of seniority, to the relevant persons for their opinion, as set out in the applicable procedure (see paragraph 37 below). 11. The applicant passed a preliminary assessment of the candidates by the transitional SCJ, and by letter of 24 February 2023 he was called to interview (see paragraph 38 below). 12. On 2 March 2023 the applicant’s interview took place. 13. On 3 March 2023 the President of the Supreme Court informed the Administrative Presidents (who are the judges with judicial oversight of a given court) of the District Courts of the methodology for deciding the criteria of seniority and the order of seniority of all judges at the time. The applicant ranked first in seniority on the list of senior district court judges. 14. On 3 March 2023 the transitional SCJ convened and decided to appoint 17 judges to the post of district court president. None of the transitional SCJ members voted positively for the applicant or proposed him for the post, and none of them commented on his qualifications. 15. By letter of 9 March 2023 the applicant requested access to the records of the procedure before the transitional SCJ, but his request was refused. 16. Instead, in reply, by a letter of 22 March 2023 the transitional SCJ informed the applicant that it had made its selection on the basis of the evidence, consisting of the opinions of the administrative presidents and the curriculum vitae of each of the candidates. As regards the element of seniority, the transitional SCJ noted that there was no significant difference in the years of service of the candidates. It further referred to the candidates’ performances at the interviews and particularly to their personality, judicial conduct and contribution to the profession as the guiding principles for how suitable they would be in fulfilling the duties and responsibilities of the position being interviewed for. It had been decided that the others were stronger candidates than the applicant. III. Administrative Court proceedings
17. On 12 May 2023 the applicant challenged the transitional SCJ’s decision by way of a recourse (judicial review proceedings; no. 755/23) before the Administrative Court. He argued, inter alia, that the transitional SCJ had failed to follow the prescribed procedure, had acted without transparency, and that its decision had been arbitrary, unreasoned and in breach of, inter alia, the principles of equality. He argued, in particular, that the transitional SCJ had failed to take sufficiently into account his seniority vis-à-vis the other candidates and submitted that he had not been given access to the records kept by the transitional SCJ, despite that right being provided by the relevant rules. He relied, inter alia, on Articles 6, 8 and 14 of the Convention. 18. On 27 June 2023 the Administrative Court held that the transitional SCJ and the SCJ (with an enlarged composition as of 1 July 2023) were the same body. As such, the court held that the decisions of the transitional SCJ would be subject to review as soon as the SCC started operating, namely as of 1 July 2023. According to the court, any other interpretation of the law would lead to unjust results since, had it not been for the amendment to the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law no. 33/1964) delaying the operation of the SCC from 1 January 2023 to 1 July 2023 (see paragraph 24 below), the applicant would have been able to challenge the decisions of the SCJ. Without making a finding as to its own jurisdiction to hear the case, the Administrative Court held that as the legislature had introduced a provision allowing the decisions of the SCJ to be reviewed by the SCC, it would not be logical or fair that a person affected after 1 July 2023 would be able to access that remedy, while a person affected before 1 July 2023 would not. The court therefore considered that the applicant’s recourse had been premature and dismissed it as such. 19. None of the parties to the proceedings – namely, the transitional SCJ, the Government and the applicant – exercised their right to appeal against the Administrative Court’s decision with the Supreme Court which, at the time, had second-instance and final jurisdiction to review decisions of the Administrative Court. The Administrative Court’s decision thus became final. IV.   proceedings before The SCC acting as Revisional Second Instance Council of Judicature
20. On 3 July 2023 the applicant lodged a complaint with the SCC acting as the second-tier SCJ (and not as a third instance court with capacity to, inter alia, review judgments on points of law; see paragraphs 24 and 27 below), challenging the transitional SCJ’s decision. He requested the SCC to, inter alia, set aside that decision and declare it void and unlawful in its capacity as the second-tier SCJ. He reiterated the arguments he had made before the Administrative Court (see paragraph 17 above). The applicant further submitted that the decision of the Administrative Court, which essentially held that the SCC had jurisdiction to hear the case, had remained unchallenged. In addition, he argued that the SCC was not impartial as all its members were also members of the transitional SCJ, which had decided to promote others instead of him. 21. By a judgment of 11 July 2023 the SCC, acting as second-tier judicial council, delivered a unanimous judgment dismissing the applicant’s complaint. The SCC explained that the new judicial structure, and particularly the creation of a Court of Appeal composed of 16 judges (see paragraph 24 below), had led to the opening of several judicial positions, among which were the 17 vacancies for district court presidents. Given the consequent need to fill these positions by 1 July 2023 (when the new courts would start to operate), the transitional SCJ was the body established to evaluate the candidacies and fill those vacant positions. The transitional SCJ was thus not the same body as the SCJ (which started its operations on 1 July 2023). The former – transitional – SCJ had terminated its functions on 30 June 2023, in accordance with the provisions of the Administration of Justice (Miscellaneous Provisions) Law. The transitional SCJ had been made up of the judges of the former Supreme Court as it had existed at the time, many of whom, including its president, had become judges of the SCC and members of the second-tier SCJ. The court found that the legislature had not provided for the possibility of objecting to the decisions of the transitional SCJ, whereas there was clear provision for the possibility of objecting to the new SCJ’s decisions under section 10(5)(ζ) of the Administration of Justice (Miscellaneous Provisions) Law (see paragraph 27 below). That distinction had been deliberate. The underlying philosophy of the law was apparent from its provisions, and concerned, among other things, the mutual control of the two supreme judicial bodies (the Supreme Court and the SCC) as of the date on which they started operating, namely 1 July 2023. The second-tier SCJ which started operating on 1 July 2023 was entirely separate and independent from the SCJ – which was composed of Supreme Court judges – and could as such review the SCJ’s decisions impartially. The legislature had intended that the SCJ be a separate body from the second-tier SCJ as of 1 July 2023, ensuring the latter’s independence and impartiality. Accordingly, the court held that it did not have jurisdiction to review the decisions of the transitional SCJ as in doing so it would be acting outside the provisions of the law. V. FURTHER DEVELOPMENTS
22. On 1 November 2024 the applicant was promoted to the position of district court president. It is unclear whether his promotion was the result of a new competition. RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW AND PRACTICE
A. Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law no. 33/1964) as amended
1. Original provisions (the creation of a unified Supreme Court)
23. The Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law no. 33/1964) was enacted to address an emergency situation that arose following the inter-communal problems in Cyprus in 1963 and to set up the necessary judicial machinery for the continued administration of justice. By virtue of that Law, the two highest courts at the time (the Supreme Constitutional Court and the Supreme Court) were merged into one, the Supreme Court, to which the jurisdiction and powers of the two earlier courts were transferred. The Supreme Court as established under the Law was composed of 13 judges. Under section 10 of the Law, the Supreme Court also assumed the role of the pre-existing SCJ, which had had exclusive competence to deal with the appointment, promotion, transfer, termination of appointment, dismissal, and disciplinary matters of judicial officers (see, for additional information, Kamenos v. Cyprus, no. 147/07, §§ 34-40, 31 October2017). 2. Amendments and transitional provisions
24. In 2022, as part of a wider project of judicial reform in Cyprus, sections 9 and 10 of the Administration of Justice (Miscellaneous Provisions) Law were amended by Law no. 145(I)/2022 which provided, inter alia, for the establishment of a newly formed Supreme Constitutional Court (composed of a maximum of nine judges) acting, inter alia, as a third instance jurisdiction, and a newly formed Court of Appeal (composed of a maximum of 16 judges) acting as a second instance jurisdiction, both distinct bodies from the Supreme Court (composed of a maximum of seven judges). Those courts had initially been due to start operating on 1 January 2023. However, following a subsequent amendment, they started operating on 1 July 2023 (Law no. 163(I)/2022). 25. Law no. 145(I)/2022 also provided for a wider composition of the SCJ that would include, in addition to the judges of the new Supreme Court, the following, who could attend its meetings, originally as observers without a right to vote: the Attorney General, the President of the Cyprus Bar Association and two lawyers. The relevant provisions were later amended so that the status of those persons changed from mere observers to participants, although still without a right to vote (Law no. 163(I)/2022). 26. In accordance with Law no. 145(I)/2022, the new SCJ would also have started operating as of 1 January 2023, with exclusive jurisdiction on matters including the appointment and promotion of judges of the Court of Appeal and first-instance courts. Again, as the result of an amendment, the SCJ only started operating on 1 July 2023 (Law no. 163(I)/2022). 27. Section 10(5)(ζ) of Law no. 145(I)/2022 also originally provided for the right of an affected party to lodge a complaint against decisions of the SCJ with the new SCC, which in such circumstances would act as a second‑tier judicial council exercising judicial review (ακυρωτικό έλεγχο) as of 1 January 2023. That date was subsequently postponed to 1 July 2023 by Law no. 163(I)/2022. 28. Law no. 145(I)/2022 also contained transitional provisions (μεταβατικές διατάξεις). Until the SCJ started operating, section 23(6) of Law no. 145(I)/2022 provided for the temporary operation of a transitional SCJ, from 5 August 2022 (the date of entry into force of the amendments) until, originally, 31 December 2022 (subsequently changed to 30 June 2023 by Law no. 163(I)/2022). The transitional SCJ was also made up of the judges of the pre-reform Supreme Court. The Attorney General, the President of the Cyprus Bar Association and two lawyers were also to participate in the meetings of the transitional SCJ without a right to vote. B. The Courts of Justice Law (Law no. 14/1960)
29. Section 4 of the Courts of Justice Law provides that the district court is composed of one or more presidents, one or more senior district court judges, and other judges, referred to as “district court judges”. 30. Section 6(1) provides:
“No one shall be qualified to be appointed as president of the district court or senior district court judge unless he or she is a lawyer who has been practising law for ten years and is of high moral character ...”
31. Section 7 provides that presidents of the district court, senior district court judges and district court judges are permanent members of the judiciary. 32. Section 8(2), as applicable at the relevant time, provided that presidents of the district court and senior district court judges were to hold office until they reached the age of 65. Section 8(5) also provided that each district court president, senior district court judge and district court judge could submit their resignation in writing to the president of the SCJ, reserving their rights with regard to pension, allowances or any similar benefit which they had acquired on the basis of any applicable law. C. Procedure for the recruitment, appraisal, appointment, and promotion of judges
33. On 2 October 2019 procedures for the recruitment and appraisal, and the appointment and promotion, of judges were published. 34. The relevant procedure consists of seven stages. 35. At the first stage the SCJ announces the vacancies and invites candidates to apply. 36. At the second stage applicants submit their applications, which must include a description of their career and a list of the ten most recent decisions he or she has delivered, with an indication of the decisions the candidate considers to have been the most important. In procedures for promotion to district court president only judges who have served as senior district court judges for at least three years before the date of the publication of the vacancy may apply for the position of district court president. Exceptions may, however, apply. 37. At the third stage the registrar of the SCJ sends the list of candidates – in order of seniority – to the administrative presidents of the district courts so that they can give their opinion on each candidate. The list is also sent to the Attorney General to state his or her opinion, and to the president of the Cyprus Bar Association in consultation with the presidents of the local bar associations. The opinions of the Attorney General and the Cyprus Bar Association are advisory only and are not binding on the SCJ. In preparing the above-mentioned opinions, the following should be taken into consideration for each candidate:
(a) integrity and character;
(b) legal knowledge and ability to apply that knowledge;
(c) efficiency and organisational abilities;
(d) ability to communicate and cooperate with other judges and personnel;
(e) ability to take full advantage of judicial time and to maintain control in court;
(f) conduct in the performance of judicial duties. 38. At the fourth stage the SCJ conducts a preliminary examination of the applications and may disqualify candidates if it has any information justifying such a disqualification. Before candidates are disqualified, they are informed in writing and asked to set out their position on the matter. The SCJ must maintain a record of any information submitted to it. 39. At the fifth stage the candidates are called to an interview lasting for 30 minutes, in which the SCJ asks questions to examine each candidate’s:
(a) personality (worth 20% – that is, 10% of the overall final mark);
(b) breadth and independence of thought (worth 20% – that is, 10% of the overall final mark); and
(c) efficiency and ability to carry out the duties of the post (worth 60% – that is, 30% of the overall final mark). Each member of the SCJ must keep a separate record of the scores given to each candidate, which forms part of the final report. 40. At the sixth stage the SCJ choses the candidate with the highest mark at interview, taking into consideration the following components which make up 50% of the final mark:
(a) the opinions of the administrative presidents (worth 40% – that is, 20% of the final mark);
(b) seniority (worth 40% – that is, 20% of the final mark, which will be credited to the most senior candidate, with the other candidates receiving marks in proportion to their seniority);
(c) the candidate’s entire curriculum vitae (worth 20% – that is, 10% of the final mark). The remaining 50% of the final mark is the result of the interview. 41. At the seventh and final stage the SCJ prepares a list of the most suitable candidates in order of seniority, publishes that list on its website and informs the successful candidates by letter. If a candidate refuses the position, the SCJ moves on to the next suitable candidate in the ranking. Candidates have the right to have access to the record kept by the SCJ at any point during the procedure if they provide reasons for their request and as long as the request is approved by the SCJ. D. Relevant domestic case-law
42. The relevant domestic case-law concerning the review of the former SCJ’s decisions on judicial promotions, prior to the establishment of the new procedure, was recently summarised in Stylianidis v. Cyprus ((dec.), no. 24269/18, §§ 25-26, 16 January 2024) and previously in Kamenos (cited above, §§ 34-40). II.      relevant council of europe material
A. The European Commission for Democracy through Law (Venice Commission)
43. At its 129th Plenary session on 10 and 11 December 2021 the Venice Commission adopted an Opinion on three bills reforming the Judiciary of Cyprus (Opinion 1060/2021, document CDL-AD(2021)043 of 13 December 2021). The Opinion concerned the Bills amending, inter alia, the provisions regulating the Supreme Council of Judicature (the SCJ). The Opinion welcomed the introduction of “detailed and transparent eligibility criteria for judicial office” which was done “as part of the holistic judicial reform”. The Venice Commission further noted that the reforms provided for “another safeguard”, namely, “that judicial review against decisions taken by the SCJ lies with the new SCC”. B. Council of Europe Group of States Against Corruption (GRECO)
44. At its 72nd plenary meeting held from 27 June to 1 July 2016 in Strasbourg, GRECO adopted its Fourth Evaluation Report on Cyprus, concerning corruption prevention in respect of members of parliament, judges and prosecutors (Greco Eval4 Rep (2016)7). The report published on 27 July 2016 made several recommendations on, inter alia, the composition of the SCJ and the recruitment, career and conditions of service of judges. 45. The second follow-up report (Greco RC4(2020)17, adopted on 29 October 2020), which re-assessed Cyprus’s compliance with the recommendations issued by GRECO in the 2016 evaluation report noted, concerning the composition of the SCJ, that its recommendation had been implemented satisfactorily. In reaching that conclusion, GRECO noted the enlargement of the composition of the SCJ to include representatives of the different levels of court as well as representatives outside the judiciary. Concerning the recruitment, career, and conditions of service of judges, GRECO noted the following:
“Recommendation x. 53. GRECO recommended that the integrity requirement for appointment as a judge be guided by precise and objective criteria which are to be checked before appointment/promotion, and that such criteria be made available to the public.
... 55. The authorities now state that the Supreme Council of Judicature has issued the prescribed Procedure and Criteria on Judicial Appointments and an equivalent procedure on Judicial Promotions, entitled ‘Procedure and Criteria on Judicial Promotions’, which were provided to GRECO. Both procedures are available online to the public. Moreover, they have been disclosed and disseminated immediately to the entire judicial body as well as to legal practitioners/practising advocates. All appointment and promotion procedures, currently underway, are governed by their respective prescribed rules as they have been laid down. The requirement o[f] ‘high moral standing’ derives from case law and is used extensively in the Cyprus Constitution for various independent functionaries and is also found in various laws as a prerequisite for appointment. Moreover currently, the laying down of the aforementioned concrete criteria and the prerequisite to obtain recommendations from the judiciary before applying for such posts indicate that the successful applicants must be lawyers the high moral standard of whom is already well known to the judiciary. 56. GRECO takes note of the information provided by the authorities. It welcomes the fact that formalised procedures have now been laid down for judicial appointments and promotions and that they have been made public, contributing to greater transparency. GRECO accepts that a list of criteria to be checked before appointments of judges has been established. Whilst it would have been preferable to specify the definition of ‘high moral standing’ as established in case law in this list of criteria, it can accept that the fact that candidates have to be experienced advocates and should therefore be familiar with the relevant case law on this notion, can offset this omission. Therefore, GRECO takes the position that the measures taken can be considered as meeting the requirements of the recommendation.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS ACCESS TO A COURT
46. The applicant complained under Article 6 § 1 of the Convention that he had had no access to a court to challenge the allegedly arbitrary decision of the transitional SCJ. Article 6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
A. Admissibility
1. Compliance with the four-month rule
(a)   The parties’ submissions
47. The Government submitted that the applicant’s complaints had been lodged out of time because he had had recourse to a remedy – namely, the proceedings before the Administrative Court and the SCC – that had offered no reasonable prospects of success. Specifically, the Government argued that the judicial review proceedings before the Administrative Court had offered no reasonable prospects of success because there had been well‑established case‑law delivered by the full bench of the Supreme Court to the effect that decisions of the SCJ were not amenable to judicial review (see paragraph 42 above). As regards the applicant’s complaint to the SCC, the Government argued that it had been evident that in the absence of a legal provision granting him a right to challenge the decisions of the transitional SCJ, the SCC had had no jurisdiction to hear his complaint, which had been doomed to fail. As such, the applicant ought to have applied to the Court within four months from the date on which he had found out that he had not been promoted to the position of district court president, that is on 3 March 2023. 48. The applicant contested the Government’s submissions. (b)   The Court’s assessment
49. As regards the Government’s arguments concerning the applicant’s recourse before the Administrative Court, the Court notes that the well-established case-law referred to by the Government, concerns the decisions of the old SCJ (see paragraph 42 above). Following the developments in 2019 and 2022, new courts, a new SCJ and new procedural rules on judicial appointments and promotions were established (see paragraphs 24-28 and 33‑41 above). Given the novelty of the situation, and as the SCC had not yet commenced its operations, it was not unreasonable for the applicant to try to pursue proceedings before the Administrative Court to avoid any risk of having his case rejected by the Court for non‑exhaustion of domestic remedies, and he should not be penalised for having done so. The Court reiterates in this respect that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for example, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014). 50. As regards the Government’s arguments concerning the applicant’s complaint with the SCC, the Court notes that the Administrative Court itself stated – and its judgment was not appealed against – that the decisions of the transitional SCJ would be subject to review as soon as the SCC started operating (see paragraph 18 above). Prompted by those findings, the applicant applied to the SCC for the determination of his complaints concerning the promotion procedure. It would thus be unduly formalistic for the Court to now hold that the applicant should not have applied to the SCC. 51. Accordingly, the final decision in the case under consideration was given by the SCC acting as the second-tier SCJ on 11 July 2023 (see paragraph 21 above), whereas the applicant lodged his application with the Court on 3 October 2023. That being so, the Court concludes that the applicant complied with the four-month time-limit laid down in Article 35 § 1 and the Government’s objection under this head should therefore be dismissed. 2. Applicability of Article 6 of the Convention (civil head)
(a)   The parties’ submissions
(i)      The Government
52. The Government submitted that Article 6 of the Convention was inapplicable in its civil aspect. They argued that the domestic law did not recognise a “right” to appointment or promotion to the post of district court president. It only recognised a right for district court judges – including presidents – to hold office until retirement. That had also been confirmed by the Supreme Court, which had held that the appointment and promotion of a judge was not a right protected under domestic law but was merely an expectation. The Government contended that, despite the establishment of criteria and a procedure for the appointment and promotion of judges, the transitional SCJ had still enjoyed considerable discretion in appointing and promoting judges. In any event, section 23(6) of Law no. 145(I)/2022, which regulated the operation of the transitional SCJ, had not provided for the possibility of challenging its decisions. At the same time, the domestic courts had consistently refused to examine applications relating to decisions of the former SCJ and the transitional SCJ for want of jurisdiction. 53. The Government also argued that, even if such a right existed, it was not a “civil” right within the meaning of Article 6 § 1 of the Convention. The State had expressly excluded access to a court in its national law, and acts, decisions, or omissions of the SCJ could not be challenged by way of a recourse. This exclusion of access to a court was justified on objective grounds in the State’s interest. The transitional SCJ had operated for only a specific period until the newly established higher-tier courts (the SCC and the Court of Appeal) had started to function, and its purpose had been to facilitate the reforms and enforcement of the various changes to the justice system. The establishment and staffing of the (new) Court of Appeal (mostly composed of judges who had previously served as presidents of district courts) presupposed the promotion and movement of those presidents to that court and, by extension, the increase in vacancies and opening of positions for the posts of presidents of district courts (17 posts in total). In such a case, decisions on appointments and promotions could only have been taken by the transitional SCJ and, therefore, its operation had been absolutely necessary. The exclusion of access to a court in relation to the decisions of the transitional SCJ had constituted a historical, isolated occurrence. (ii)    The applicant
54. The applicant argued that he had had both a substantive “right to promotion” and a right to have the transitional SCJ’s decision judicially reviewed even prior to the start of the operation of the SCC on 1 July 2023. He argued that the basis for such a procedural right was section 10(5)(ζ) of Law no. 145(I)/2022, as also evidenced by the judgment of the Administrative Court (see paragraphs 18 and 27 above), and by the changing attitudes around the issue of judicial appointments and promotions which promoted the transparency of such procedures. 55. He further argued that the right had been “civil” in nature since the domestic law no longer excluded access to a court for disputes concerning judicial promotions. Even if it did, there was no objective justification for such exclusion. (b)   The Court’s assessment
(i)      General principles
56. The Court reiterates that for Article 6 § 1 in its civil limb to be applicable, there must be a “dispute” (“contestation” in French) regarding a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018; Grzęda v. Poland [GC], no. 43572/18, § 257, 15 March 2022; and Grosam v. the Czech Republic [GC], no. 19750/13, § 108, 1 June 2023, all with further references). Lastly, the right must be a “civil” right (see Grzęda, cited above, § 257, and Verein KlimaSeniorinnen Schweiz and Others v. Switzerland [GC], no. 53600/20, § 595, 9 April 2024). 57. Article 6 § 1 does not guarantee any particular content of “civil rights and obligations” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Grzęda, cited above, § 258). 58. It is the right as asserted by the applicant in the domestic proceedings that must be taken into account in order to assess whether Article 6 § 1 is applicable. Where there was a genuine and serious dispute about the existence of that right, a decision by the domestic courts that there was no such right does not remove, retrospectively, the arguability of the claim (see Károly Nagy v. Hungary [GC], no. 56665/09, § 63, 14 September 2017, with further references). 59. The rights conferred by the domestic legislation can be substantive, or procedural, or, alternatively, a combination of both (see Regner v. the Czech Republic [GC], no. 35289/11, § 101, 19 September 2017, with further references). 60. In some cases, national law, while not necessarily recognising that a person has an individual right, does confer the right to a lawful procedure for examination of his or her claim, involving, for example, a ruling by a competent court as to whether a decision was arbitrary or ultra vires or whether there were procedural irregularities. This is true of certain decisions where the authorities have a purely discretionary power to grant or refuse an advantage or privilege, and where the law confers on the person concerned the right to apply to the courts, which may set the decision aside if they find that it was unlawful. In such a case Article 6 § 1 of the Convention is applicable, on condition that the advantage or privilege, once granted, gives rise to a civil right (ibid., § 105, with further references). 61. As regards officials employed in the civil service, according to the criteria established in Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00, ECHR 2007‑II) the respondent State cannot rely before the Court on an applicant’s status as a civil servant to exclude the protection embodied in Article 6 unless two conditions are fulfilled. First, the State in its national law must have excluded access to a court for the post or category of staff in question. This condition is satisfied where domestic law contains either an explicit exclusion from access to a court or an implicit one, in particular where the latter stems from a systemic interpretation of the applicable legal framework or the whole body of legal regulation (see Grzęda, cited above, § 292). Secondly, the exclusion must be justified on objective grounds in the State’s interest. In order for the exclusion to be justified, it is not enough for the respondent State to establish that the civil servant in question participated in the exercise of public power or that there existed a special bond of trust and loyalty between the civil servant and the State, as employer. It is also for the respondent State to show that the subject matter of the dispute in issue was related to the exercise of State power or that it had called into question the special bond. Thus, there can in principle be no justification for the exclusion from the Article 6 guarantees of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of the relationship between the particular civil servant and the State in question. There will, in practice, be a presumption that Article 6 applies. It will be for the respondent State to demonstrate, first, that a civil servant applicant did not have a right of access to a court under national law and, secondly, that the exclusion of the Article 6 rights was justified in the case of that civil servant (see Grzęda, cited above, § 261, with further references; see also §§ 291, 292, 296 and 299). 62. The Court has confirmed that the Eskelinen test applied to disputes concerning judges, as the judiciary, albeit not part of the ordinary civil service, is considered part of typical public service (see Baka v. Hungary [GC], no. 20261/12, § 104, 23 June 2016). 63. On the basis of the principles set out in Vilho Eskelinen and Others, Article 6 has been applied to several types of disputes concerning judges, including those relating to recruitment/appointment (see Juričić v. Croatia, no. 58222/09, 26 July 2011), career/promotion (see Dzhidzheva‑Trendafilova v. Bulgaria (dec.), no. 12628/09, 9 October 2012, and Tsanova-Gecheva v. Bulgaria, no. 43800/12, §§ 85‑87, 15 September 2015), transfer (see Tosti v. Italy (dec.), no. 27791/06, 12 May 2009, and Bilgen v. Turkey, no. 1571/07, § 79, 9 March 2021), suspension (see Paluda v. Slovakia, no. 33392/12, §§ 33‑34, 23 May 2017, and Camelia Bogdan v. Romania, no. 36889/18, § 70, 20 October 2020), disciplinary proceedings (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 120, 6 November 2018; Di Giovanni v. Italy, no. 51160/06, §§ 36-37, 9 July 2013; and Eminağaoğlu v. Turkey, no. 76521/12, § 80, 9 March 2021), as well as to the dismissal of judges (see Olujić v. Croatia, no. 22330/05, §§ 31‑43, 5 February 2009; Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 91 and 96, ECHR 2013; Kulykov and Others v. Ukraine, nos. 5114/09 and 17 others, §§ 118 and 132, 19 January 2017; Sturua v. Georgia, no. 45729/05, § 27, 28 March 2017; and Kamenos v. Cyprus, no. 147/07, §§ 82-88, 31 October 2017), to reductions in salary and convictions for a serious disciplinary offence (see Harabin v. Slovakia, no. 58688/11, §§ 118‑123, 20 November 2012), to removal from a post (for example, president of a supreme court, president of a court of appeal or vice-president of a regional court) while remaining a judge (see Baka, cited above, §§ 34 and 107-11; Denisov, cited above, § 54; and Broda and Bojara v. Poland, nos. 26691/18 and 27367/18, §§ 104-24, 29 June 2021; see also Grzęda, cited above, concerning the premature termination of an applicant’s term of office as a judicial member of the National Council of the Judiciary, while he still remained a serving judge) and the renewal of the membership of the governing body of the judiciary based on a list of candidates from serving judges (see Lorenzo Bragado and Others v. Spain, nos. 53193/21 and 5 others, § 76, 22 June 2023). 64. Given the prominent place that the judiciary occupies among State organs in a democratic society governed by the rule of law and the growing importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá, cited above, § 196), the Court must be particularly attentive to the protection of members of the judiciary against measures affecting their status or career that can threaten their judicial independence and autonomy (see Bilgen, cited above, § 58, and Dolińska-Ficek and Ozimek v. Poland, nos. 49868/19 and 57511/19, § 228, 8 November 2021). (ii)    Existence of a right
65. The applicant complained before the domestic courts that the transitional SCJ had failed to follow the prescribed procedure and that its decision had been arbitrary, unreasoned and in breach of, inter alia, the principles of equality (see paragraph 17 above). He alleged that the transitional SCJ had failed to provide any reasons for its decision, and that it had not been evident whether its members, in their assessment, had considered his seniority vis‑à‑vis the other candidates. The applicant was therefore not arguing before the domestic courts that he had a substantive right to be promoted to the position of district court president, nor does the Court discern such a right. It is evident that the crux of the applicant’s complaint before the domestic courts concerned instead the right to a lawful and fair procedure in the examination of his candidacy for promotion (see Regner, cited above, § 105; Frezadou v. Greece, no. 2683/12, § 28, 8 November 2018; and Gloveli v. Georgia, no. 18952/18, § 37, 7 April 2022). 66. The case therefore concerns, from the standpoint of Article 6 § 1 of the Convention, a member of the judiciary’s right of access to a court and his right to a fair procedure in order to complain about the legitimacy of the decision not to promote him, which undoubtedly affected the conditions of his employment (see, Bilgen, cited above, § 57). Thus, the issue is whether there is an arguable basis on which the right to be protected against arbitrary decisions of the body deciding judicial promotions can be claimed. 67. The Court notes the adoption and publication in 2019, for the first time, of rules regulating the promotion procedure (see paragraphs 33 and 41 above). The present case is therefore differentiated from that of Stylianidis v. Cyprus (dec.) (no. 24269/18, 16 January 2024), the facts of which took place prior to the establishment of the new procedure. Specifically, in 2019 a procedure was established as to how the general criteria for promotion were to be applied, including the weight to be attached to each criterion. Members of the SCJ were required to maintain separate records of the scores that each of them assigned to each candidate, and such records formed part of the final report. The said procedure therefore provided for safeguards in matters relating to, inter alia, the promotion of judges. That was acknowledged by GRECO and the Venice Commission (see paragraphs 43 and 45 above). There can therefore be no doubt that judges in Cyprus may claim, on the basis of the procedure introduced in 2019, a right to a fair promotion procedure safeguarding against arbitrariness or the improper use of discretion. 68. The Court notes in this connection that for a “right” to trigger the application of Article 6 § 1 of the Convention it is sufficient to show that the applicant could arguably claim an entitlement under national law. In determining whether there was a legal basis for the right asserted by the applicant, the Court needs to ascertain only whether the applicant’s arguments are sufficiently tenable, not whether he would necessarily have been successful had he been given access to a court (see Gloveli, cited above, § 38). It appears from the records for March 2023 provided by the Government to the Court that, in assessing the relevant candidacies, the transitional SCJ made general reference to the qualifications, seniority and merits of certain applicants for the post, even if it did not do so for each applicant separately. The Court therefore considers that, unlike in the case of Stylianidis (cited above, § 43), the decision of the transitional SCJ was not entirely discretionary. 69. In the Court’s view, neither the fact that the procedural rules seem to have afforded the transitional SCJ an element of discretion, nor the fact that the transitional SCJ’s decisions may not, according to the SCC (acting as the second tier of SCJ), be reviewed negate the tenability of the applicant’s claim that he had a right to a fair procedure in judicial promotion competitions, which could arguably be said to be recognised in Cypriot law (see Oktay Alkan v. Türkiye, no. 24492/21, § 41, 20 June 2023). The Court notes in this connection that the applicant, whose performance, seniority and conduct were not called into question (see paragraphs 10 and 14 above), and who was not given access to the records of the procedure (see paragraphs 15, 16 and 41), could argue that the promotion procedure had not been in compliance with the 2019 provisions (see, mutatis mutandis, Bilgen, cited above, § 61). 70. In light of the above considerations, the Court is satisfied that there was in domestic law a “right” to a fair procedure in the examination of an application for a judicial promotion, which the applicant could assert. (iii)   “genuine” and “serious” dispute
71. The Court considers that the dispute, which concerned the fairness of the judicial promotion procedure and which could lead to the annulment of the contested decision and the reconsideration of the decision not to promote the applicant, was both “genuine” and “serious” (see Gloveli, cited above, § 42, with further references therein). The fact that the applicant was later promoted does not affect this finding. (iv)  “Civil” nature of the right: the Eskelinen test
72. The next issue to be determined is whether the “right” claimed by the applicant was “civil” within the autonomous meaning of Article 6 § 1 in the light of the criteria developed in the judgment of Vilho Eskelinen and Others (cited above). (α)     The first condition of the Eskelinen test
73. Turning to the circumstances of the present case, the Court notes that section 10(5)(ζ) of Law no. 145(I)/2022 provided for the right of an affected party to lodge a complaint against decisions of the SCJ with the new SCC, which in such circumstances would act as a second‑tier judicial council exercising judicial review (ακυρωτικό έλεγχο) as of 1 January 2023. That date was subsequently postponed to 1 July 2023 by Law no. 63(I)/2022 (see paragraph 27 above). Even though the Law did not expressly state that decisions of the transitional SCJ could be subjected to judicial review – unlike its clear wording regarding the new SCJ – the lack of such reference does not, prima facie, suggest that the transitional SCJ’s decisions were excluded from review. As regards this silence, it is relevant to consider the broader context in which the Law was adopted, during a period marked by sustained calls for institutional modernisation and for strengthening the mechanisms governing judicial appointments and promotions. In this broader context, the absence of an express reference to the transitional SCJ may not necessarily be understood as indicating an intention to exclude its decisions from similar scrutiny. 74. As to the question whether there was an implicit exclusion from review, the Court notes the different interpretations of the domestic law provisions offered by the Administrative Court and the SCC acting as second‑tier SCJ. On the one hand, the Administrative Court considered that the transitional SCJ and the new SCJ were the same body. It held that the decisions of the transitional SCJ would be subject to review and that the legislature had introduced a provision allowing the decisions of the SCJ to be reviewed by the SCC, as it would not be logical or fair that a person affected after 1 July 2023 would be able to access that remedy, while a person affected before 1 July 2023 would not (see paragraph 18 above). The parties to those proceedings did not appeal against that decision, rendering it final (see paragraph 19 above). On the other hand, the SCC acting as a second tier of the SCJ held that the transitional SCJ was not the same body as the new SCJ. It considered that the legislature had not provided for the possibility of objecting to the decisions of the transitional SCJ, unlike the clear provision for the possibility of objecting to the SCJ’s decisions under section 10(5)(ζ) of the Administration of Justice (Miscellaneous Provisions) Law (see paragraph 21 above). That judgment was also final in the absence of a legal avenue of appeal. 75. From the information provided to the Court by the parties and the case file overall, it appears that those where the only two decisions at the time of the events of the present case on the issue at hand. It is not for the Court to determine which of the two judgments should prevail. Nor is the Court’s role to resolve problems of interpretation of domestic legislation. Nevertheless, the simultaneous finality of the two judgments reflects the lack of one systemic interpretation of the applicable legal framework at the national level at the relevant time. 76. In the light of the foregoing, the Court cannot conclude that the national law as in force since the adoption of the legislative amendments excluded access to a court for the applicant’s dispute. However, even if the Government’s argument that domestic law expressly excluded access to a court were to be accepted, the Court still has to satisfy itself that that exclusion was justified on “objective grounds in the State’s interest” (see Vilho Eskelinen and Others, cited above, § 62, and Gloveli, cited above, § 47). It will, therefore, proceed with the examination of the second condition of the test. (β)      The second condition of the Eskelinen test
77. The Court notes that, even if the Government’s argument that domestic law expressly excluded access to a court were to be accepted, the second condition has also not been met for the following reasons. 78. As regards the second condition the Government submitted that the exclusion was justified owing to the restructuring of the judiciary which necessitated urgent appointment decisions to be made by the transitional SCJ. According to the Government, that was a temporary situation objectively necessitated by the State’s interest in implementing judicial reforms. 79. Turning to the circumstances of the present case, the Court acknowledges that the domestic legal system was undergoing a structural reform and that a transitional body had been established for a limited period for the promotion of judges to fill the vacancies that opened up with the establishment of new courts. The Court has already emphasised that the Convention does not prevent States from taking legitimate and necessary decisions to reform the judiciary, but that any such reform should not result in undermining the independence of the judiciary (see Grzęda, cited above, § 323). In this respect, the Court has noted a clear link between the integrity of the judicial appointment process and the requirement of judicial independence (see Thiam v. France, no. 80018/12, §§ 81-82, 18 October 2018). The Court also refers to the principle that judges should be selected on the basis of merit and objective criteria, not only to ensure public confidence in the judiciary but also as a supplementary guarantee of the personal independence of judges (see Oktay Alkan, cited above, § 57, with further references). The Court observes that such considerations were reflected in the recommendations of GRECO in its fourth evaluation report for Cyprus and the second follow-up report which welcomed the fact that formalised procedures have been laid down for judicial appointments and promotions contributing to greater transparency (see paragraphs 44 and 45 above). Similarly, the Venice Commission also highlighted the importance of judicial review against decisions taken by the SCJ as an additional safeguard (see paragraph 43 above). 80. Against this background, the Court considers that the decision to promote others over the applicant without any judicial review of that decision cannot be regarded, in view of the importance of the protection of judicial independence, as being in the interest of a State governed by the rule of law (see Gloveli, cited above, § 51, and Oktay Alkan, cited above, § 58). The Court notes in this respect that in the choice of others over the applicant for promotion, no reference was made to any absence of qualifications or merits on the applicant’s part compared to other candidates. The transitional SCJ’s decision contained no details as to how the applicant’s candidacy was assessed and why he was not chosen for promotion. Even if such reasons existed, it is clear that the transitional SCJ’s decision involved ordinary aspects of an employment relationship and did not disclose any aspect of the use of sovereign power in particular (see, mutatis mutandis, Bilgen, cited above, § 80). 81. The Court therefore does not accept the Government’s argument that the exclusion of a judicial review of the decision on the applicant’s non‑promotion can be justified on objective grounds. As such, the second condition of the Eskelinen test has not been met. 82. It therefore follows that Article 6 is applicable ratione materiae to the present case. 3. Conclusion as to admissibility
83. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits
84. The applicant essentially reiterated the arguments made above. He claimed that the very essence of the right of access to a court had been impaired by the refusal of the SCC to assume jurisdiction to hear his claim. 85. The Government argued that the exclusion from access to a court had pursued a legitimate aim. Specifically, the said restriction stemmed from the wording of section 23(6) of Law 145(I)/2022 as interpreted by the SCC. The Government submitted that it was clear from the wording of the said section that there was no right to lodge a complaint against the decisions of the transitional SCJ. The reason was the strengthening of the justice system, the mutual review of the two supreme judicial bodies, namely the new Supreme Court and the SCC, and maintenance of the guarantees of impartiality and independence. The Government further argued that there was a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved given that the applicant, in any event, had no right under domestic law to be promoted to president of the district court, but merely a hope. 86. The relevant general principles have recently been reiterated in the case of Oktay Alkan (cited above, §§ 64-66). 87. In the present case, the applicant’s complaint against the decision of the transitional SCJ to promote others over him was not reviewed by the SCC on the merits. The latter declared the applicant’s complaint inadmissible for lack of jurisdiction (see paragraph 21 above). 88. The Court has consistently held that exclusions from access to court must remain exceptional and be supported by weighty reasons (see Oktay Alkan, cited above, § 67, and Bilgen, cited above, § 96). The question that the Court must answer is therefore whether the complete absence of a judicial review of the promotion procedure of judges before the transitional SCJ was compatible with the rule of law and Article 6 § 1 of the Convention. 89. The Court notes in this connection “the existing consensus on the necessity to have in place procedural safeguards and the possibility of appeal against decisions affecting the career of a judge” (see Bilgen, cited above, § 96; see also GRECO’s recommendations in paragraphs 44 and 45 above and the Opinion of the Venice Commission referred to in paragraph 43 above). While the Court accepts that the domestic legal system was undergoing a structural reform, that alone cannot justify the removal of judicial review of decisions affecting the careers of judges. The Government have not demonstrated that subjecting the decisions of the transitional SCJ to judicial scrutiny would have jeopardised the reform process. The Court considers instead that the reasons advanced relate primarily to considerations of administrative efficiency and expediency. Such reasons cannot be considered sufficient to exclude the fundamental right of access to a court, especially considering how decisions concerning the careers of judges are directly linked to the guarantees of judicial independence and the public confidence in the judiciary (see Bilgen, cited above, § 96). The Court does not consider that weighty reasons have been provided to exceptionally justify the absence of judicial review in the present case. 90. The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s lack of access to a court did not pursue a legitimate aim and that, accordingly, the very essence of that right was impaired. 91. II. REMAINING COMPLAINTS
92. Lastly, the applicant complained under Article 6 § 1 of the Convention that the SCC had failed to act as an “impartial tribunal”, as the SCC judges who dismissed his complaint had been, in their majority, the same judges who had decided, as members of the transitional SCJ, not to promote him. 93. Having regard to the facts of the case and in the light of all the material in its possession as well as its findings made under Article 6 § 1 of the Convention above concerning the absence of access to a court (see paragraphs 90 and 91 above), the Court considers that, since it has examined the main legal questions raised in the present application, there is no need to give a separate ruling on the admissibility and merits of the applicant’s remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references to the Court’s case-law). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
94.

Outcome for Article 41: violation