Information Note on the Court’s case-law 227
March 2019
Guðmundur Andri Ástráðsson v. Iceland - 26374/18
Judgment 12.3.2019 [Section II]
Article 6
Criminal proceedings
Article 6-1
Tribunal established by law
Appointment of judges in flagrant breach of domestic law, as a result of undue discretion exerted by the executive: violation
Facts – The applicant’s criminal appeal had been rejected by the Court of Appeal, a new judicial institution which had become operational in 2018. He complained to the Supreme Court that one of the judges on the bench had been appointed to the Court of Appeal in breach of the appointment procedures specified in the applicable legislation. The Supreme Court acknowledged that the judge’s appointment had been irregular, but held that such irregularity could not be considered to have nullified the appointment. The Supreme Court therefore found that the applicant had received a fair trial.
Law – Article 6 § 1: Having regard to the general principle that it was for the national courts to interpret in the first place the provisions of domestic law, the Court could not question their interpretation unless there had been a flagrant violation of domestic law. The same test of a flagrant breach of domestic law should apply where, as in the applicant’s case, the breach had been attributable to a branch of Government and had been acknowledged by the domestic courts. In that regard, the Court would consider whether the national courts had taken account of the general principles in the Court’s case-law in their examination of a claim that the appointment of a judge had not been in accordance with the applicable domestic law, and in particular whether the courts had taken sufficient account of the flagrant nature of the breach in determining whether the tribunal in question had been “established by law”.
The concept of a “flagrant” breach of domestic law related to the nature and gravity of the alleged breach. In its examination the Court would take into account whether the facts before it demonstrated that a breach of the domestic rules on the appointment of judges had been deliberate or, at a minimum, had constituted a manifest disregard of the applicable national law.
The mere fact that a judge, whose position is not established by law within the meaning of Article 6 § 1, determines a criminal charge, sufficed for a finding of a violation of that provision in conformity with the fundamental principle of the rule of law. No separate examination was required of whether the breach of the principle that a tribunal be established by law rendered a trial unfair.
The Supreme Court had found that both the Minister of Justice and Parliament had violated the applicable laws in the appointment of judges to the Court of Appeal. It remained for the Court to determine whether those established violations of domestic law had been, viewed as a whole, “flagrant” and therefore had had the result that the impugned judge’s participation in the panel which had determined the applicant’s criminal charge had constituted a violation of Article 6 § 1, her appointment thus not being “established by law” under the Convention.
The domestic legal framework had been set up explicitly to limit the discretion of the executive in the appointment of judges by requiring that the competences of the candidates to the fifteen vacant judicial posts in the newly established Court of Appeal be assessed by a specially constituted Evaluation Committee composed of experts nominated by the Supreme Court, the Judicial Council, the Bar Association and Parliament. The statutory scheme, requiring the active participation of Parliament in voting on the candidates to the new Court of Appeal, a transformative change in the Icelandic judicial system, had been meant to serve the important public interest of safeguarding judicial independence vis-à-vis the executive branch. That legislative framework had been intended to minimise the risk of party-political interests unduly influencing the process by which the qualifications of each candidate to the newly established Court of Appeal were to be evaluated and ultimately confirmed by the legislative branch, the Parliament.
The Minister of Justice had removed from the list of fifteen candidates, assessed as the most qualified by the Committee, four candidates and had replaced them with four other candidates who had been ranked lower. Although the Minister had been statutorily authorised under domestic law to propose different candidates than those proposed by the Committee, she had proceeded in that manner without an independent examination of the merits of the candidates in question and without any further collection of evidence or other materials to substantiate her conclusions. She had failed to engage in a detailed comparison of the competences of the four candidates, ranked lower by the Committee, with the fifteen candidates considered the most qualified, as had been required by general principles of administrative law and the general principle of domestic law that, in the appointment of persons to office, only the most qualified should be selected. Those violations of national law lay at the core of the process of selecting the candidates for the vacant posts in the new Court of Appeal and thus constituted a defect of a fundamental nature in the overall process of appointment of the four judges.
The Supreme Court had considered that the Minister had acted “in complete disregard” of the danger to the reputational interests of the candidates who had been replaced and had served the interests of the other four she had favoured in the process. The breaches of national law by the Minister seemed not only to have constituted, objectively, a fundamental defect in the process, viewed as a whole, but also to have demonstrated her manifest disregard for the applicable rules in force at the material time.
The failure of Parliament to adhere to the national rule of separate voting on each candidate had also amounted to a serious defect in the appointment procedure, having an impact on the integrity of the process as a whole. Only by the Minister fulfilling her statutory duties could Parliament have sufficiently served its role in the process and taken a position on the Minister’s assessment which had departed from the opinion of the Committee as regards the four candidates in question.
The process by which the impugned judge had been appointed had amounted to a flagrant breach of the applicable rules at the material time. The process was one in which the executive branch had exerted undue discretion, not envisaged by the legislation in force, on the choice of four judges to the new Court of Appeal, coupled with Parliament’s failure to adhere to the legislative scheme previously enacted to secure an adequate balance between the executive and legislative branches in the appointment process. The Minister of Justice had acted in manifest disregard of the applicable rules. The process had therefore been to the detriment of the confidence that the judiciary in a democratic society had to inspire in the public and contravened the very essence of the principle that a tribunal had to be established by law, one of the fundamental principles of the rule of law.
Conclusion: violation (five votes to two).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage..
(See also Lavents v. Latvia, 58442/00, 28 November 2002, Information Note 99; and DMD Group, a.s., v. Slovakia, 19334/03, 5 October 2010, Information Note 134)
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This summary by the Registry does not bind the Court.
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