SECOND SECTION
CASE OF GUÐMUNDUR ANDRI ÁSTRÁÐSSON v. ICELAND
(Application no. 26374/18)
JUDGMENT
STRASBOURG
12 March 2019
Request for referral to the Grand Chamber pending
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 Guðmundur Andri Ástráðsson v. Iceland,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Paul Lemmens, President,
Robert Spano,
Işıl Karakaş,
Valeriu Griţco,
Ivana Jelić,
Arnfinn Bårdsen,
Darian Pavli, judges,
and Hasan Bakirci, Deputy
Section Registrar,
Having deliberated in private on 5 February 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 26374/18) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Icelandic national, Mr Guðmundur Andri Ástráðsson (“the applicant”), on 31 May 2018.
2. The applicant was represented by Mr Vilhjálmur H. Vilhjálmsson, a lawyer practising in Reykjavík. The Icelandic Government (“the Government”) were represented by their Agent, Mr Einar Karl Hallvarðsson, the State Attorney General.
3. The applicant complained that his criminal charge was determined by a court which was lacking in independence and impartiality and was not established by law, in violation of Article 6 § 1 of the Convention.
4. On 19 June 2018 notice of the application was given to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Establishment of the new Court of Appeal and the appointment of judges to the court
5. A new court within the Icelandic judicial system, the Court of Appeal (Landsréttur), was established on 1 January 2018 and became operational on the same day. Specific temporary provisions on the appointment of judges to the court, including temporary provision IV of the new Judiciary Act No. 50/2016, entered into force on 14 June 2016. These provisions stipulated that the appointment of the fifteen judges of the Court of Appeal should be completed no later than 1 July 2017 and their appointment take effect as from 1 January 2018.
6. Temporary provision IV of the new Judiciary Act regulated the selection procedure and the appointment of the initial fifteen judges to the court (see paragraph 57 below). In accordance with paragraph 1 of temporary provision IV of the Act, a committee of experts, the Evaluation Committee (“the Committee”), already set up on the basis of Section 4 (a) of the prior Judiciary Act No. 15/1998, was statutorily mandated to assess the candidates for the vacant posts and deliver its assessment report on their competences to the Minister of Justice. The Committee was composed in total of five experts: one nominated by the Judicial Council (Dómstólaráð), one nominated by the Icelandic Bar Association, one elected by Althingi (“Parliament”) and two nominated by the Supreme Court, one of whom acted as Chairman. According to temporary provision IV of the new Judiciary Act, as amended by Act No. 10/2017, which entered into force on 28 February 2017, the Minister could not appoint a candidate as a judge who had not been considered the most qualified by the Committee, either alone or among others. However, an exception to this rule was made if Parliament accepted the Minister’s proposal to appoint such a candidate on the condition that he or she fulfilled the minimum requirements under domestic law for the appointment to a judicial post. The second paragraph of temporary provision IV then stated that when the “Minister [proposed] for the first time appointments to the office of judge of the Court of Appeal, she [should] submit her proposal regarding every appointment to Althingi for its acceptance. If Althingi [accepted] the Minister’s proposals, she [should] send them to the President of Iceland, who [would] formally [appoint] the judges”.
7. On 10 February 2017 a call for applications for the posts of fifteen judges in the Court of Appeal was published. The application deadline was 28 February 2017. In total, 37 persons applied for the posts, including A.E. Later, in April and May 2017, three persons withdrew their applications and one candidate did not fulfil the legal requirements for the post. Thus, 33 candidates were assessed by the Committee.
8. At a meeting on 2 March 2017, the Chairman of the Committee delivered the applications to the Minister of Justice (then the Minister of the Interior, hereinafter the “Minister” or the “Minister of Justice”). At the meeting, the Minister suggested to the Chairman that the Committee give her a list of, for example, 20 qualified candidates for her to choose from and appoint as judges to the Court of Appeal. At a meeting on 11 May 2017, the Chairman delivered to the Minister the Committee’s draft assessment report with a list of fifteen named candidates who were considered the most qualified. During the meeting, the Minister again inquired whether the Committee could deliver an assessment of more than fifteen qualified candidates. The Chairman then presented the Minister with an evaluation table (see paragraph 12 below) upon which the Committee had relied in its assessment of the candidates for the vacant judicial posts. On the same day, the Committee sent the draft assessment report to the candidates for their comment.
9. By email of 12 May 2017, the Secretary-General of the Parliament sent a memorandum on the appointment of judges to the Court of Appeal and the role of Parliament in the process, to the Minister of Justice and the Speaker. The memorandum stated that the procedure before Parliament would be in accordance with Section 45 (5) of the Parliamentary Procedures Act No. 55/1991 (see paragraph 61 below) and a proposed procedure was set out in more detail. It was noted inter alia that the Minister had to submit one proposal for each appointment, that the matter would be sent to the Constitutional and Supervisory Committee of Parliament (hereinafter “the CSC”) and that the CSC would give its opinion on the Minister’s proposals and set it out in such a way that Parliament could decide on each proposed candidate. Furthermore, it stated that no changes could be made to the proposals by Parliament and if it did not accept one of the Minister’s proposals, and thus the required number of judges was not approved, the procedure had to be repeated.
10. By email of 16 May 2017, the Permanent Secretary of the Prime Minister’s Office informed lawyers in the Prime Minister’s office, and the Ministry of Justice working on the matter, that the Minister of Justice had approved the proposed procedure set out in the memorandum of the Secretary-General of the Parliament.
11. On 19 May 2017 the Committee submitted to the Minister of Justice its assessment report on its evaluation of the candidates. It covered 117 pages and was divided into 6 chapters, including, inter alia, biographical information on the candidates, the assessment criteria, the procedure adopted by the Committee and the Committee’s conclusions on the competences of the candidates. The Committee found that all 33 candidates qualified to serve as court of appeal judges. However, in the Committee’s operative part, only the fifteen most qualified candidates were named. The assessment report did not contain an internal formal ranking of the fifteen candidates, but the Committee stated explicitly that the fifteen named candidates were all more qualified than the remaining applicants.
12. In judicial proceedings instigated later by two candidates for the vacant posts (see paragraphs 27-35 below), it transpired that the Committee had worked in accordance with an evaluation table, in which each candidate had been given points on the basis of twelve specific assessment criteria. The overall points of each candidate then determined their ranking. The Minister received the detailed information of the points of each candidate. A.E. was ranked number 18 of the 33 candidates and was therefore not included by the Committee in the top fifteen of the most qualified candidates in its final assessment report to the Minister.
13. By email of 26 May 2017, the Minister asked two lawyers working for the administration to provide her with feedback on possible reasoning in her letter to Parliament. By email of the same day, the lawyers informed the Minister that they had inserted comments and suggestions in the letter. Furthermore, they stated, inter alia, that the main comment was that if the Minister intended to change the Committee’s list of proposed candidates, such a change had to be specifically reasoned on the basis of their qualifications. Furthermore, it was noted that perhaps the candidates should be informed about the changes, at the latest before it was sent to Parliament or processed by it. On 28 May 2017 these views were reiterated by one of the lawyers in an email to the Permanent Secretary of the Prime Minister’s Office. He stated inter alia that if the Minister of Justice considered that there were flaws in the Committee’s procedure or in its opinion, the Minister had two options. Firstly, the matter could be referred back to the Committee. Secondly, the Minister could herself remedy the flaws, which meant that the Minister had to evaluate all the candidates in the light of the Minister’s objective and on the basis of lawful criteria. However, the lawyer suggested that the standard thing to do was to request the Committee to conduct a new evaluation. Furthermore, the lawyer noted that the Minister’s decision to appoint judges was an administrative act and therefore it had to be performed in accordance with the Administrative Procedures Act No. 37/1993 (see paragraph 62 below). Lastly, he proposed that it might be wise to inform the candidates about the changed emphasis and give them an opportunity to present new information that could be relevant for the evaluation.
14. By letter of 27 May 2017 to the Chairman of the Committee, the Minister of Justice requested further information and documents on the Committee’s evaluation and the fact that the Committee only made reference to the fifteen most qualified candidates and not others who had applied for the positions in the Court of Appeal, inter alia, with regard to the Equality Act No. 10/2008.
15. By a letter of 28 May 2017, the Chairman of the Committee informed the Minister on the manner in which the Committee had given weight to each evaluation criterion, which had been part of its overall assessment, and explained that the same approach had been followed during his four years as Chairman of the Committee. Every candidate’s points for each criterion had been registered in an evaluation table and the candidates had been ranked in accordance with their overall score. The Committee’s conclusion had been to apply the same weight as had previously been applied for each criterion. As regards the second question, the Chairman explained that the Committee had not found that there had been numerous equally qualified candidates or that it had been impossible to name one more qualified than another. In this instance, fifteen positions had been advertised and the Committee had concluded that fifteen specific candidates had been more qualified than others for the positions. Therefore it had not been necessary to list more candidates. The Committee’s evaluation table had clearly showed the ranking of the candidates. However, the Minister’s idea had been that she be able to choose from among, for example, 20 candidates for the fifteen vacant posts. According to this idea, the candidate ranked 20th in the Committee’s assessment could thus be chosen over candidates ranked 5th, 10th or in any position whatsoever. The Chairman stated that this idea would not have been in conformity with the purpose behind the prior Judiciary Act as it had been described in the preparatory works to the Act. The Chairman furthermore stated that the intention behind the legislative framework requiring a separate expert committee to assess candidates for judicial posts, and not the Minister himself or herself, was to safeguard judicial independence in the light of the developments in other European countries.
16. By letter of 29 May 2017, the Minister of Justice presented her proposal of the fifteen candidates to be appointed judges of the Court of Appeal by the President of Iceland to the Speaker of Parliament. The proposal contained only 11 names of candidates whom the Committee had found the most qualified. The remaining four, ranked numbers 7, 11, 12 and 14 in the Committee’s evaluation table, were not included on the Minister’s list. Instead the Minister proposed that four other candidates, ranked numbers 17, 18, 23 and 30 on the Committee’s evaluation table, including A.E., who had been ranked number 18, be appointed. In a separate letter, the Minister presented arguments for her proposals and the changes she had decided to make from the Committee’s findings. The Minister stated, inter alia, that the Committee had not given adequate weight to judicial experience in accordance with the applicable regulations. After reviewing the assessment report, the candidates’ objections to it and the working documents presented to her, the Minister had concluded that a higher number of candidates should have been considered than those listed in the Committee’s report, all fifteen candidates named by the Committee as well as others having many years of judicial experience, in total 24 candidates.
17. On the same day, the Minister’s proposals were referred to the CSC. The CSC invited the Minister to its meeting, as well as the Permanent Secretary of the Ministry of Justice, a number of experts, a representative of the Icelandic Bar Association and the Icelandic Judges’ Association, the Parliamentary Ombudsman, and the Chairman of the Committee.
18. On 30 May 2017, the Minister presented a memorandum to the CSC, further substantiating her proposal. She reiterated her view that more weight should be given to judicial experience in the assessment of the candidates. The Minister referred also to the Equality Act No. 10/2008 in support of her proposal to include the four candidates and remove the four considered more qualified by the Committee. The Minister’s conclusion was the following:
“In this instance, the Minister is of the opinion that the aforementioned four candidates are moreover the most qualified for the post of judge of the Court of Appeal. This opinion by the Minister is based on a thorough examination of the documents of the case, including the applications, the comments by the Evaluation Committee, the candidates’ objections, the working documents of the Committee, and with these objective views in mind, as stated before.
The Minister has not raised any objections regarding the preparation of this case by the Evaluation Committee. The Minister believes that the Evaluation Committee has shed sufficient light on the matter and that a satisfactory investigation has been performed for the assessment of the factors that constitute the grounds for the conclusion. The Minister considers it appropriate that more weight be given to judicial experience than assessed by the Evaluation Committee. The Committee has already considered this factor and all information about the judicial experience of the candidates is found in the file. No new information or data form the basis of the Minister’s proposal.”
19. On 31 May 2017 the majority of the CSC, divided along party lines, found that the Minister had presented arguments for her proposals and agreed with those arguments. It further found that if the Minister wanted to depart from the Committee’s list of candidates she had to present arguments for the change, and the choice had to be objective and the most qualified person had to be selected for the position.
20. The CSC proposed a parliamentary resolution, recommending that Parliament approve the Minister’s proposals. The candidates were listed in alphabetical order and numbered from 1-15. The minority recommended that the proposal be dismissed as it considered the Minister’s reasoning to be insufficient, especially as regarded the departure from the Committee’s proposal. Moreover, the minority expressed serious reservations regarding the Minister’s compliance with principles of administrative law, including the requirement of sufficient investigation and the rule of national law that only the most qualified candidates should be selected.
21. Before the vote in Parliament, the Speaker stated that a proposal from the CSC had been tabled in Parliament to approve the Minister’s fifteen candidates for the office of judge of the Court of Appeal. He further noted that the proposal in 15 numbered items would be voted up or down in a single vote, if no one opposed. No Member of Parliament objected to that arrangement.
22. On 1 June 2017, Parliament voted on and rejected the CSC minority’s proposal of dismissal by 31 votes to 30, strictly along party‑political lines. This was followed by a vote on the majority’s proposal, which was also passed along party-political lines with 31 votes of MPs in favour, who all were members of the political parties composing the majority in the coalition Government, and 22 MPs voting against, composed of members of parties in opposition. A total of 8 MPs abstained, none of whom were members of Government parties.
23. By letter of 2 June 2017, the Minister of Justice was informed that at its meeting on 1 June 2017, Parliament had approved the Minister’s proposal to nominate fifteen named individuals as judges of the Court of Appeal. The letter was signed by the Speaker and the Secretary-General of Parliament. The same day, the Minister of Justice sent a letter to the Permanent Secretary of the Prime Minister’s Office, who holds the position of Secretary to the Council of State. In the letter the Minister requested that letters of appointment be issued for fifteen named individuals for the office of judges of the Court of Appeal in a specific order. The appointees were then listed in order based on how long they had been qualified to hold the office of a judge in the court.
24. By letter of 6 June 2017, the Secretary to the President of Iceland asked for information on the procedures adopted in Parliament in the matter. By letter of 7 June 2017, the Secretary-General of Parliament gave an account of the procedure in Parliament and concluded that the voting had been lawful and in conformity with Parliament’s statutory and traditional procedures. The letter also stated the following:
“It has to be emphasised that the provision [temporary provision IV] does not contain further instructions on the procedures before Parliament. Therefore, the Parliamentary Procedures Act applies and the normal application of those provisions. However, it is clear from the temporary provision that Parliament shall, or can, take a stand on each proposed candidate for the position of judge if it so wishes.
...
It is a normal practice and an old one that many issues are taken together during a vote if it is clear that everyone will vote in the same manner or when there is no proposal for amendments on individual matters, e.g. during the second discussions about a bill of law or on parliamentary resolutions. This is referred to as the sections being “taken together” and the voting applies, or its conclusion, to each section.
25. On 8 June 2017, in accordance with the Minister of Justice’s proposal and Parliament’s acceptance of the list presented by the Minister, the President of Iceland signed the appointment letters for the fifteen nominated candidates, including A.E. A.E.’s letter of appointment stated the following:
“The President of Iceland makes known: that in accordance with the Judiciary Act, I hereby appoint [A.E.] to the position of judge of the Court of Appeal, effective as of 1 January 2018. She shall respect the State’s constitutional law and Icelandic laws in general, all in accordance with a solemn declaration by her.
[...]”
26. On the same day, the President of Iceland issued a statement addressing the correspondence between Parliament and the Secretary to the President. The President concluded that no mistakes had been made in the preparation and arrangement of the voting on 1 June 2017 and that the procedure had been in conformity with the law, parliamentary conventions and procedures.
B. Proceedings before the national courts challenging the legality of the appointment procedure
27. In June 2017, two candidates, J.R.J. and Á.H., who were among the fifteen candidates that the Committee considered most qualified, but had been removed from the final list of nominees proposed to Parliament by the Minister of Justice, brought judicial proceedings in the District Court of Reykjavík against the Icelandic State. Their primary claim was that the Minister’s decision of 29 May 2017, by which she had not included them among the fifteen candidates proposed to Parliament to be judges of the Court of Appeal, should be annulled. Furthermore, the plaintiffs requested the annulment of the decision not to include them on the list of fifteen candidates proposed to the President of Iceland for appointment after the vote in Parliament. In addition they claimed compensation for pecuniary damage and 1,000,000 Icelandic krónur (ISK, approximately 9,000 euros (EUR) at the time) for personal injury (non-pecuniary damage).
28. In both cases, the Icelandic State requested the District Court of Reykjavík to reject their claims as inadmissible. By decisions on 7 July 2017, the District Court in both cases upheld the inadmissibility requests of the State as regards the plaintiffs’ annulment claims and their claims for pecuniary damage.
29. The plaintiffs both appealed the decisions of the District Court to the Supreme Court on 10 July 2017. By two judgments of 31 July 2017, the Supreme Court upheld the District Court decisions in dismissing their claims for annulment of the Minister’s decision not to include them in her proposal to Parliament and in her list of judges to be appointed by the President after the vote in Parliament. Its reasoning stated that a judgment to that effect could have no effect on the appointment of the 15 judges already appointed to the Court of Appeal. However, the Supreme Court annulled the District Court decisions to dismiss the plaintiffs’ claims for pecuniary damage and remitted their claims to that effect for further proceedings on the merits in the District Court.
30. By judgments on the merits of 15 September 2017, the District Court found in favour of the Icelandic State and dismissed the plaintiffs’ claims for pecuniary and non-pecuniary damage.
31. The plaintiffs appealed to the Supreme Court on 19 September 2017. By judgments of 19 December 2017, the Supreme Court rejected, with identical reasoning in both judgments, their claims for compensation for pecuniary damage. However, the applicants were each granted ISK 700,000 (approximately EUR 5,700 at the time) as compensation for personal injury (non-pecuniary damage).
32. In its judgments, the Supreme Court recalled the general principle of Icelandic administrative law that the executive, in appointing persons to office, was bound by the rule that only the most qualified candidates should be selected. The court then stated that when the Minister decided to propose to Parliament to depart from the Committee’s opinion, as the law permits, the Minister’s proposal had to be based on an independent investigation of all the elements necessary to substantiate her proposal in accordance with Section 10 of the Administrative Procedures Act (see paragraph 62 below). Thus, the Minister had to ensure that her own investigation and assessment were based on similar expertise as members of the Evaluation Committee had in their work and that the Minister followed the Rules No. 620/2010, set by the Ministry itself (see paragraph 58 below) on the elements to be taken into account in such an assessment. The Supreme Court then emphasised that this was even more important when the law stipulates that the assessment report of the Committee limits the powers of the Minister and prohibits him or her from appointing a candidate to the post of judge that the Committee has considered not to be the most qualified, unless the Minister receives the consent of Parliament. The court stressed that in appointing judges, the Minister was not appointing persons to offices that are accountable to the Minister, but rather members of another branch of government which has a monitoring role vis-à-vis the other branches and is guaranteed independence by Article 61 of the Constitution and Section 24 of the prior Judiciary Act.
33. On this basis, the Supreme Court held that in the light of her obligation to independently investigate the facts under Section 10 of the Administrative Procedures Act, the Minister should, at a minimum, have compared the competences of the four candidates she decided to include in her proposal to Parliament and the fifteen candidates considered most qualified by the Committee. On the basis of such a comparison, the Minister should then have reasoned her decision to seek the approval of Parliament for her proposal to depart from the Committee’s conclusions. Only in this manner could Parliament have sufficiently served its role in the process and taken a position on the Minister’s assessment which departed from the assessment of the Committee. On this basis, and in accordance with temporary provision IV of the Judiciary Act No. 50/2016, the Minister had been bound to present an independent proposal for each of the four candidates she proposed and who had not been in the group of fifteen candidates considered most qualified by the Committee.
34. The Supreme Court thus found, on the basis of the file and the facts before it, that the Minister of Justice had violated Section 10 of the Administrative Procedures Act for failing to substantiate her proposal to Parliament with an independent investigation shedding light on elements necessary to assess the merits of the four candidates she had proposed, in comparison to the fifteen candidates considered by the Committee as the most qualified. Her proposal to include the four candidates had not been based on any new documents or an independent investigation of the facts on her part. The procedure adopted by the Minister had thus also resulted in a flaw in the procedure in Parliament when it assessed the Minister’s proposal as the Minister had not rectified the procedural breach when the issue came to a vote in Parliament.
35. As to the plaintiffs’ claims for damages for personal injury (non‑pecuniary damage), under Section 26 of the Tort Act No. 50/1993 (see paragraph 63), the Supreme Court stated that although nothing suggested that the Minister had acted specifically with the intention of causing injury to their reputation and personal honour, her actions had nevertheless had the consequence of serving the interests of some of the four candidates that the Committee had ranked less qualified than the plaintiffs. Although the Minister had not expressed herself in a manner directed at the reputation or personal honour of the plaintiffs, the Supreme Court concluded that it could not be disregarded that she should have been aware of the fact that her actions had unjustifiably been to the detriment of the reputation of the plaintiffs and thus caused them injury. Nevertheless, the court found that the Minister had acted “in complete disregard of this obvious danger” (“Þrátt fyrir þetta gekk ráðherrann fram án þess að skeyta nokkuð um þessa augljósu hættu”).
C. The applicant’s conviction in the Court of Appeal
36. The applicant was born in 1985 and lives in Kópavogur.
37. On 31 January 2017 the applicant was indicted for a violation of the Traffic Act No. 50/1987, for driving without holding a valid driver’s licence and under the influence of narcotics.
38. By a judgment of 23 March 2017, the District Court of Reykjaness convicted the applicant of the charges against him. The case was processed summarily as the applicant pleaded guilty and thus accepted the charges. The applicant was sentenced to 17 months’ imprisonment and his driver’s licence was revoked for life.
39. On 6 April 2017, the applicant appealed the judgment to the Supreme Court and requested that his sentence be reduced. As the case was not heard by the Supreme Court before the end of 2017, the case was transferred to the Court of Appeal in accordance with Section 78 (1) of Act No. 49/2016 on Amendments to the Criminal Procedures Act and Civil Procedures Act, as it had been amended by Section 4 of Act No. 53/2017.
40. By letter of 29 January 2018, the Court of Appeal notified the applicant and the prosecution that the trial would take place on 6 February 2018 and also of the names of the three judges who would sit in the panel for the case. The panel of judges included A.E., who was one of the four judges appointed by the President of Iceland on the basis of the proposal of the Minister of Justice, departing from the assessment report of the Committee, and the vote in Parliament (see paragraphs 5-26 above).
41. By letter of 2 February 2018, the applicant’s defence counsel requested that A.E. withdraw from the case due to the irregularities in the procedure when she and the other three candidates had been appointed as judges to the Court of Appeal and because they had not been appointed in accordance with the law.
42. On 6 February 2018, at a preliminary hearing before the Court of Appeal, the applicant formally lodged a procedural motion to the effect that A.E. withdraw from the case. The applicant claimed that according to Article 59 and 70 (1) of the Icelandic Constitution and Article 6 § 1 of the Convention, he would not enjoy a fair trial before an impartial and independent tribunal established by law if she were to participate, due to the irregularities in the procedure leading up to her appointment as a judge of the court. The applicant referred in support of his claim to the decision of the EFTA Court (Court of Justice of the European Free Trade Association (EFTA)) of 14 February 2017 in case E-21/16 and the judgment of the General Court of the European Union of 23 January 2018 in case no. T‑639/16 P (see paragraphs 64-69 below). He argued that according to these rulings, when an appointment of a judge is not in accordance with the law, the judge is not fully vested with judicial powers and his or her judgments will be invalid. In accordance with the Supreme Court judgments of 19 December 2017 and of 31 July 2017 (see paragraphs 27-35 above) the same would apply in the applicant’s case if his request were rejected.
43. By a decision of 22 February 2018, the Court of Appeal rejected the applicant’s motion for A.E. to withdraw from the case.
44. On 24 February 2018 the applicant appealed the decision to reject the motion to the Supreme Court. By a judgment of 8 March 2018, the Supreme Court dismissed the appeal on the ground that the conditions for appeal had not been fulfilled. The court held that as the applicant’s motion for A.E. to withdraw was in fact based on A.E.’s judicial position not being established in accordance with the law, such a motion could not be appealed to the Supreme Court on the basis of a procedural decision by the Court of Appeal, but had to be examined on the basis of an appeal on the merits of a judgment rendered by the Court of Appeal in the applicant’s criminal case.
45. Following the Supreme Court’s dismissal of the applicant’s appeal as to the motion for A.E. to withdraw, the trial continued with A.E as one of the three judges on the bench.
46. By letter of 13 March 2018, the applicant changed his pleadings before the Court of Appeal. His primary claim was that he be acquitted. His secondary claim was for his sentence to be reduced on the ground that the appointment of judges to the Court of Appeal had been in violation of Article 59 and 70 of the Constitution and Article 6 § 1 of the Convention.
47. By a judgment of 23 March 2018, the Court of Appeal upheld the District Court’s judgment on the merits.
48. On 17 April 2018 the Supreme Court granted leave to appeal and on 20 April 2018 the applicant appealed the judgment to the Supreme Court by way of an appeal lodged by the prosecutor at his request.
49. The applicant’s main claim before the Supreme Court was that the Court of Appeal’s judgment be quashed and the case be remitted for retrial. His secondary claims were for the court to acquit him or to reduce his sentence. His claims were based on the ground that the procedure leading up to the appointment of A.E., one of the judges in his case before the Court of Appeal, had violated the new Judiciary Act and the Administrative Procedures Act. Furthermore, he argued that the Minister of Justice’s proposal to Parliament, for the appointment of A.E., had violated the general principle of domestic law that authorities should appoint the most qualified candidate for office. Therefore, A.E.’s appointment had not been in accordance with the law as required by Article 59 of the Constitution and Article 6 § 1 of the Convention. This had also resulted in him not enjoying a fair trial before an independent and impartial tribunal as stipulated in Article 70 (1) of the Constitution and Article 6 § 1 of the Convention. In his observations before the Supreme Court, the applicant alleged, inter alia, that A.E.’s husband, B.N., a Member of Parliament and of the same political party as the Minister of Justice, had given up the first place on the party’s constituency list in Reykjavík in the parliamentary elections held in October 2017 in favour of the Minister after her decision to include his wife in her proposal to Parliament. B.N.’s decision had effectively excluded him from serving as a Minister after the parliamentary election when the party had formed a new coalition Government.
50. By a judgment of 24 May 2018, the Supreme Court rejected the applicant’s claims and upheld the judgment of the Court of Appeal. As to the complaint concerning the appointment of A.E., the Supreme Court set out the procedure leading up to the appointment of judges in the Court of Appeal and referred principally in this respect to its judgments of 19 December 2017 in the related judicial proceedings (see paragraphs 27-35 above). The judgment then contained the following reasoning:
“[The applicant’s] arguments for his primary and secondary claims before the Supreme Court are inter alia that according to Article 59 of the Constitution and Article 6 of [the Convention] an appointment of a judge has in all respects to be in accordance with the law. In case that fails and the appointment is thus unlawful “the judge in question is not a lawful holder of judicial power and a court’s judicial rulings in which he has participated constitute a dead letter”, as is argued in [the applicant’s] observations before the Supreme Court. The conclusion drawn from the cited words cannot be sustained unless it would be considered that a person’s appointment as a judge under these circumstances would be a nullity (“markleysa”), thus not only that flaws in the appointment process would result in its annulment. It must be taken into account that in the aforementioned assessment report of the Evaluation Committee of 19 May 2017 it was concluded that all the 33 candidates fulfilled all the requirements provided for by law to hold the office of a judge in the Court of Appeal, a fact that has not been challenged. The appointment of the judges was conducted in accordance with the formal procedural rules of Chapter III of Act No. 50/2016, as well as temporary provision IV of the same Act, however with the exception that during the Parliamentary procedure on the Minister of Justice’s proposals on the appointment of the judges, the requirements of the second paragraph of the temporary provision were not followed in that the Parliament should have voted on each and every judge separately, but not all the judges at the same time, as was in fact done. This issue, however, has already been addressed in the aforementioned judgment of the Supreme Court [of 19 December 2017], where it was concluded that this was a defect which did not have significance. Taking this into account, as well as the fact that all the fifteen judges were appointed to office by letters signed by the President of Iceland on 8 June 2017, co-signed by the Minister of Justice, it cannot be concluded that the appointment of [A.E.] was a nullity nor is it accepted that judicial rulings of the Court of Appeal, which she delivers along with others, are for that reason a “dead letter”.
When it is assessed whether the accused, due to [A.E.’s] participation, did not enjoy the right to a fair trial before an independent and impartial tribunal in accordance with the first paragraph of Article 70 of the Constitution, cf. Article 6 of the European Convention on Human Rights, it must be recalled that in the aforementioned judgments of the Supreme Court [of 19 December 2017] it was concluded that such flaws were in the procedure of the Minister of Justice preceding the appointment of the fifteen Court of Appeal judges that the State was liable in damages. In this case, this finding has in no way been challenged and these judgments have, therefore, evidentiary value in this respect in accordance with Section 116 (4) of the Civil Procedure Act. In this regard, it must also, in particular, be emphasised that it cannot be accepted, as was argued in the aforementioned memorandum of the Minister of Justice of 30 May 2017, that by only increasing the weight ascribed to judicial experience from that which such experience was ascribed by the Evaluation Committee in its internal table, relied upon in its assessment report of the 19th of the same month, but relying in other respects on the ‘sufficient investigation’ of the Committee as to each assessment factor, the finding could be made that four named candidates for the post of judge in the Court of Appeal, but not others, would be removed from the group of the fifteen most qualified, and four specific named candidates would be moved up into that group rather than others. When assessing the consequences of the said flaws in the Minister of Justice’s procedure, account must be taken of the fact that the appointment of all the fifteen judges of the Court of Appeal for an indefinite term, which in no way has been annulled by a court, became a reality upon the signing of their letters of appointment, dated 8 June 2017. As stated above, all of them fulfilled the requirements of Section 21 (2) of Act No. 50/2016, for being appointed to the office of judge, including the requirement of item 8 of the said paragraph, that is being considered to be qualified to hold these offices in the light of their professional experience and legal knowledge. From that time, the judges have held positions, cf. Article 61 of the Constitution, which preclude them from being discharged from office except by a judicial decision. From the time the appointment of these judges took effect, they have, according to the same provision of the Constitution, cf. Section 43 (1) of Act No. 50/2016, been under the main obligation in the performance of their official duty to follow only the law. They have also been afforded, in accordance with the last mentioned provision of law, independence in their judicial work but also the duty to perform it under their own responsibility and never follow instructions from others in their work. With reference to all of the above, there is not a sufficient reason to justifiably doubt that [the applicant] enjoyed a fair trial before independent and impartial judges, in spite of the flaws in the procedure by the Minister of Justice.”
D. Further developments
51. On 5 March 2018 a motion of no-confidence was lodged in Parliament against the Minister of Justice by several members of two parties in the opposition. The reason for the motion was the Minister’s violations of domestic law in the process of appointing judges to the Court of Appeal. On 6 March 2018 Parliament rejected the motion by a vote of 33 MPs voting against the motion with 29 in favour, with one MP abstaining. The 33 MPs rejecting the motion were all members of parties composing the majority in the coalition Government. However, two other members of those parties voted in favour of the proposal.
52. In February and March 2017, the two other candidates, E.J. and J.H., who were among the fifteen candidates that the Committee considered most qualified, but had been removed from the final list of nominees proposed to Parliament by the Minister of Justice, brought judicial proceedings in the District Court of Reykjavík against the Icelandic State. E.J. requested a declaratory judgment to the effect that the State was obliged to pay him pecuniary damage for not being appointed one of the judges to the Court of Appeal due to an unlawful decision by the Minister of Justice. J.H. claimed compensation for pecuniary damage and non-pecuniary damage for not being appointed one of the judges to the Court of Appeal by an unlawful decision of the Minister of Justice.
53. By two separate judgments of 25 October 2018, the District Court of Reykjavík found for the plaintiffs. In the first judgment the District Court acknowledged E.J.’s right to compensation for pecuniary damage due to him not being appointed a judge of the Court of Appeal. The District Court concluded, inter alia, that the candidate had sufficiently established that had the procedure been conducted in a lawful manner with a reasonable assessment being made of his application and a comparison performed of his merits in relation to other candidates, the result would have been that he would have been appointed a judge of the Court of Appeal. In the latter judgment the District Court referred to the Supreme Court judgments of 19 December 2017 (see paragraphs 32-34 above) and awarded the plaintiff, J.H., ISK 1,100,000 (approximately EUR 7,300 at the material time) as compensation for personal injury (non-pecuniary damage). As for the right to compensation for pecuniary damage the District Court awarded him ISK 4,000,000 (approximately EUR 29,200 at the material time). The District Court concluded that the candidate had also sufficiently established that had the procedure been conducted in a lawful manner with a reasonable assessment being made of his application and a comparison performed of his merits in relation to other candidates, the result would have been that he would have been appointed a judge of the Court of Appeal.
54. The Icelandic State has appealed both judgments. They are currently pending before the Court of Appeal after leave to appeal directly to the Supreme Court was refused on 13 December 2018.
II. RELEVANT DOMESTIC LAW
55. The relevant provisions of the Icelandic Constitution (Stjórnarskrá lýðveldisins Íslands) read as follows:
Article 2
“Althingi and the President of Iceland jointly exercise legislative power. The President and other governmental authorities referred to in this Constitution and elsewhere in the law exercise executive power. Judges exercise judicial power.”
Article 59
“The organization of the judiciary can only be established by law.”
Article 60
“Judges settle all disputes regarding the competence of the authorities. No one seeking a ruling thereon can, however, temporarily evade obeying an order from the authorities by submitting the matter for judicial decision.”
Article 70
“Everyone shall, for the determination of his rights and obligations or in the event of criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law. A hearing by a court of law shall take place in public, except if the judge decides otherwise as provided for by law in the interest of morals, public order, the security of the State or the interests of the parties.
Everyone charged with criminal conduct shall be presumed innocent until proven guilty.”
56. The relevant provisions of the prior Judiciary Act No. 15/1998 (Lög um dómstóla) read as follows:
Section 4a
“The Minister shall appoint an Evaluation Committee of five members to examine the qualifications of candidates for the office of Supreme Court judge or district court judge. Two members shall be nominated by the Supreme Court, of whom one shall serve as chairman; at least one of the two shall not be in active service as a judge. The third member shall be appointed by the Judicial Council and the fourth by the Icelandic Bar Association. The fifth member shall be elected by Althingi. ...
The Evaluation Committee shall provide the Minister with a written and reasoned report concerning candidates for the office of Supreme Court judge. The report of the Evaluation Committee shall state the board’s view regarding which candidate is best qualified for the post; the board may rank two or more candidates equally. In other respects, the Minister shall establish further rules on the functions of the Board.
No candidate may be appointed to the office of judge whom the Evaluation Committee has not designated as the most qualified of the candidates, whether alone or equally ranked with others. However, derogation from this condition is permitted if Althingi adopts a motion of the Minister to appoint another named candidate who, in the opinion of the Evaluation Committee, meets all the requirements laid down in the second and third paragraphs of Section 4. The Minister shall in such circumstances place the motion before Althingi within two weeks from the time of submission of the Evaluation Committee’s opinion or within two weeks from the time that Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time that it is placed before Althingi or the Minister will be bound by the opinion of the Evaluation Committee.”
57. The relevant provisions of the new Judiciary Act No. 50/2016 (Lög um dómstóla) read as follows:
Section 21
“The Court of Appeal shall be composed of 15 judges, appointed for an indefinite period of time by the President of Iceland as proposed by the Minister.
Only a person who fulfils the following conditions may be appointed to the office of a Court of Appeal judge:
1. Has attained the age of 35 years.
2. Is an Icelandic national.
3. Has the necessary mental and physical capacity.
4. Is legally competent to manage his or her personal and financial affairs, and has never been deprived of the control of his or her finances.
5. Has not committed any criminal act considered to be infamous in public opinion, or evinced any conduct detrimental to the trust that persons holding judicial office generally must enjoy.
6. Has completed can.jur. exam or B.A. exam in law together with Master’s degree.
7. Has for a term of no less than three years been a district court judge, attorney before the Supreme Court, full professor or associate professor of law, commissioner of police, district commissioner, Public Prosecutor, permanent secretary of a ministry, director general of a department of the Minister or Althingi’s Ombudsman, or has for such period discharged a similar function providing similar legal experience.
8. Is deemed capable of holding the office in the light of his or her career and knowledge of law.
A person who is, or has been, married to an Appeal Court Judge already in office, or a person related to such judge by blood or marriage by ascent or descent, or in the second sideline, may not be commissioned to the office of the Court of Appeal.”
Section IV (temporary provision)
“Nominating judges of the Court of Appeal shall be completed no later than 1 July 2017 and the judges shall be appointed to office effective as of 1 January 2018. As provided for in Section 4a of Act No. 15/1998 on the Judiciary, a committee shall be established to investigate the qualifications for the first time of candidates for the office of judge of the Court of Appeal. The committee shall provide the Minister with its opinion about the candidates in conformity with the second paragraph of the same Section and of the regulation that applies to the committee. The Minister is not authorized to appoint an individual to the office of judge whom the Evaluation Committee had not deemed as being the most qualified amongst the candidates, either one or among others. This provision may be departed from, however, if Althingi accepts a proposal by the Minister on an authorization to appoint to the office of judge another named candidate who, in the opinion of the Evaluation Committee, meets all the conditions of Section 21 (2) and (3) of this Act.
When the Minister proposes for the first time appointments to the office of judge of the Court of Appeal, she shall submit her proposal regarding every appointment to Althingi for acceptance. If Althingi accepts the Minister’s proposals, she shall send them to the President of Iceland, who formally appoints the judges, cf. Section 21. If Althingi does not accept the Minister’s proposals regarding a particular appointment, the minister shall present a new proposal to Althingi for acceptance.
...”
58. The relevant provisions of the Minister of Justice’s Rules No. 620/2010 on the work of the Evaluation Committee which assesses the competences of applicants for judicial posts (Reglur um störf dómnefndar sem fjallar um hæfni umsækjenda um dómaraembætti) are as follows:
Section 3
“When the application deadline has expired the Minister examines whether the candidates fulfil all the general conditions of qualification for the judicial office which was published in accordance with the Judiciary Act No 15/1998. Then the applications fulfilling the conditions are sent to the Evaluation Committee for assessment.”
Section 4
“In its opinion the Committee shall decide who is/are the most qualified candidate/s to be appointed to the judicial office. The Committee shall make sure that in its evaluation equality is respected. The conclusion shall be based on an overall assessment based on objective considerations and based on the candidates’ merits taking account of the candidates’ education, experience, integrity, competence and professional efficiency, as described, inter alia, in more detail below:
1. Education, career, theoretical knowledge. When evaluating the education, career and theoretical knowledge, the Committee shall place emphasis on the candidate having a varied background in the fields of law such as experience as a judge, litigation or other type of legal practice work, working in administration or scholarly work. The candidate should have general and comprehensive legal knowledge and education. It should also be considered whether the candidate has a further education.
2. Secondary activities and social activities. The Committee shall also take into account the candidate’s secondary activities, such as activities in appeals committees or other activities which could be useful for a judge. The Committee can also take into account extensive participation in social activities.
3. General competence. The Committee shall take into account whether the candidate has shown independence, impartiality, initiative and efficiency in his or her work and whether the candidate can easily extrapolate the key issues. It is optimal that the candidate has management experience. The candidate shall have good knowledge of the Icelandic language and ability to communicate easily both verbally and in writing.
4. Special competence. It is important that the candidate has good knowledge of civil and criminal procedures and can follow the provisions of law when drafting judgments and can draft them in good language. The candidate has to be able to conduct hearings firmly and fairly and process the cases he/she is assigned quickly and with confidence.
5. Mental capabilities. The candidate has to be able to communicate easily, both with colleagues and other people he/she encounters at work. It is a requirement that the candidate has a good reputation both from his or her previous work and outside work and that he/she is dependable.”
Section 5
“The candidate’s application for the judicial office advertised along with the rules that apply for it shall be the basis upon which the Committee bases its evaluation.
The Committee shall make sure that the matter is in all other aspects sufficiently investigated before giving its opinion on the candidate’s qualifications.
In its evaluation in accordance with Section 4, the Committee can take into account all published works of the candidates, such as scholarly writing, judgments, decisions and alike, even though they have not been submitted with the application. The candidate does not need to be specifically notified in advance.
The Committee can invite the candidates for an interview and request necessary documents in addition to those submitted with their application and the Committee can base its evaluation, under Section 4, on the documents.
The Committee can obtain knowledge on the candidate’s career from his/her former employer or others who have been in professional contact with him/her. The candidate shall have seven days to comment on the information that is collected.”
Section 6
“The Committee shall submit a written and reasoned report on the candidates including the following:
a. reasoned opinion on each candidate’s qualification
b. reasoned opinion as to which candidate/s the Committee considers the most qualified for the judicial office.”
Section 7
“The Committee shall share its draft assessment report with the candidates and give them seven days to comment thereon. The candidates are bound by confidentiality about the content of the draft report.”
Section 8
“After the Committee has reviewed the candidates’ comments and amended the report, as appropriate, it finalises the report, signs it and sends it to the Minister along with the case documents. Furthermore, the Committee sends its report to the candidates.
Three days after the Minister and the candidates have been sent a copy of the report it shall be published on the Ministry of Justice’s website.”
Section 9
“The Committee shall submit a report on the candidates within six weeks of receiving the applications. This deadline can be extended under special circumstances such as, due to the amount of candidates etc.
...”
59. The relevant provisions of the Criminal Procedures Act No. 88/2008 (Lög um meðferð sakamála) read as follows:
Section 6
“A judge, including a lay judge, is incompetent to serve as a judge in a case if:He is an accused person, victim or representing them,He has safeguarded the interests of an accused person or the victim in the case,He has testified or been subpoenaed as a witness in the case for legitimate reasons or been an assessor or examiner in the case,He is or has been the spouse of the accused or the victim, related or connected to them, directly or in the second line of descendants connected directly to them by the same token though adoption,He is related or has been connected to the representative of the accused or the victim, or counsel in the manner stipulated in item d,He is connected or has been connected to a witness in the case by the same token as stipulated in item d, or to an assessor or examiner, orThere exist other circumstances or conditions that may justifiably raise questions about his impartiality.”
60. According to the Criminal Procedures Act, judicial proceedings can be reopened under certain conditions. Section 228 of the Act states that when a District Court judgment has not been appealed or the time limit to appeal has passed, the Committee on Reopening of Judicial Proceedings (Endurupptökunefnd) can approve a request of a person who considers that he or she has been wrongly convicted or convicted of a more serious offence than he or she committed, to reopen the judicial proceedings before the District Court, if certain conditions are fulfilled. The conditions are, inter alia, that new evidence has come to light which could have had great significance for the conclusion of the case if it had been available before the judgment was announced (item a) or that there were serious defects in the processing of the case which affected its conclusion (item d). The State Prosecutor can request a reopening to the advantage of the convicted person if he considers that the conditions in paragraph 1 of Section 228 of the Act are fulfilled. In accordance with Section 229 of the Act, the request for reopening shall be in writing and sent to the Committee on Reopening of Judicial Proceedings. It shall include detailed reasoning on how the conditions for reopening are considered to be fulfilled. According to Section 231 of the Act, the Committee on Reopening of Judicial Proceedings decides whether proceedings will be reopened. If a request for reopening is approved the first judgment remains in force until a new judgment is delivered in the case. Section 232 of the Act states that the Committee on Reopening of Judicial Proceedings can accept a request for the reopening of a case which has been finally decided in the Court of Appeal or the Supreme Court and a new judgment be delivered if the conditions of Section 228 are fulfilled. A case will not be reopened in the Court of Appeal unless the time limit to request leave to appeal to the Supreme Court has expired or the Supreme Court has rejected leave to appeal.
61. The relevant provisions of the Parliamentary Procedures Act No. 55/1991 (Lög um þingsköp Alþingis) read as follows:
Section 45
“Motions for parliamentary resolutions shall have the form of resolutions. They shall be printed and distributed to Members at a sitting of Althingi. As a rule, motions for resolutions shall be accompanied by an explanation of their substance. Deliberations may not take place until at least two nights after the distribution of the motion.
A resolution cannot pass until it has received two readings. However, motions of no confidence in the Government or a minister, motions on the appointment of committees according to Article 39 of the Constitution and motions from committees submitted pursuant to Section 26 (2) shall be debated and brought to a conclusion in a single debate in accordance with the rules on second readings of parliamentary resolutions. The same applies to motions for adjournment of sittings of Althingi pursuant to the second sentence of Article 23 (1) of the Constitution.
At the end of the first reading the motion will pass to the second reading and the committee proposed by the Speaker. However, a vote shall be taken at the request of any Member, and also if another motion is made regarding the committee to which the matter should be submitted.
The second reading shall not take place until one night after the first reading or distribution of a committee report. At this reading, individual articles of the proposal shall be debated along with amendments to such articles. At the close of this reading a vote shall be taken on each article of the proposal and amendments to them, and finally on the proposal in its entirety. However, if there are no motions of amendments, the proposal may be put to the vote in its entirety.
If Althingi receives a submission relating to a matter on which Althingi is required to take a position under the Constitution or by law, but the submission does not constitute parliamentary business pursuant to Chapter III, the Speaker shall report the submission at a sitting. The matter is then submitted without debate to a committee at the recommendation of the Speaker. When the committee has completed its examination of the matter, the committee shall express its opinion in a report, which shall be distributed at a sitting, together with a motion for a resolution, which shall be debated and brought to a conclusion in a single sitting pursuant to the rules on second readings of parliamentary resolutions.
Parliamentary resolutions which are distributed after the end of November may not be placed on the agenda before Christmas recess except with the consent of Althingi, obtained in compliance with Section 74. Furthermore, parliamentary resolutions which are distributed later than 1 April may not be placed on the agenda before summer recess except with the consent of Althingi, obtained in compliance with Section 27. However, this consent can only be sought when five days have passed from the distribution of the resolution; derogation from this requirement is permitted with the support of three fifths of the Members voting on the resolution.
Constitutional requirements pursuant to Article 103 of the Agreement on the European Economic Area shall be derogated from by a parliamentary resolution, whose presentation shall comply with rules established by the Speaker.
The Prime Minister shall in October of each year submit to Althingi a report on the implementation of resolutions passed by the Althingi in the preceding year and requiring action by a Minister or the government, unless a different form of reporting to Althingi is provided for by law. The report shall furthermore address the process of matters referred by Althingi to the Government or a Minister. When the report has been submitted, it shall be referred to the Constitutional and Supervisory Committee for discussion. The committee may submit to Althingi its opinion regarding the Minister’s report at its discretion and submit proposals to Althingi regarding individual matters in the report.”
62. The relevant provision of the Administrative Procedures Act No. 37/1993 (Stjórnsýslulög) reads as follows:
Section 10
“Rule of investigation
An authority shall ensure that a case is sufficiently investigated before a decision thereon is reached.”
63. Section 26 (1) of the Tort Act No. 50/1993 (Skaðabótalög) reads:
“A person who
a. deliberately or through gross negligence causes physical injury or
b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party
may be ordered to pay non-pecuniary damages to the injured party.”
III. RELEVANT CASE-LAW OF THE EFTA COURT AND THE GENERAL COURT OF THE EUROPEAN UNION
A. Case E-21/16 of the Court of Justice of the European Free Trade Association (EFTA Court), Decision of 14 February 2017
64. An advisory opinion was requested in the EFTA Court from the Princely Court of Appeal of the Principality of Liechtenstein concerning the Agreement on the European Economic Area (EEA Agreement) and the Solvency II Directive 2009/138/EC. The Court of Appeal referred three questions to the EFTA Court. The third question was put forth in case the first two questions would be addressed by the EFTA Court after 16 January 2017. The third question concerned the principle of loyalty laid down in Article 3 of the EEA Agreement and the possibility for the EFTA States to question the validity of the decisions of the EFTA Court. In essence the question raised the issue whether, from 17 January 2017, the EFTA Court would be lawfully composed in a manner that ensures its independence and impartiality. The reason for the question was that by an ESA/Court Committee Decision of 1 December 2016, the regular judge of the EFTA Court in respect of Norway had been reappointed for a three-year term of office as of 17 January 2017. However, Article 30(1) of the Agreement between the EFTA States, on the Establishment of a Surveillance Authority and Court of Justice (SCA), provided that the judges of the EFTA Court were
