ECHR ruling of December 01, 2020 in the case "Gudmundur Andri Astradsson v. Iceland" (aplication No. 26374/18).
In 2018, the applicant was assisted in preparing the aplication. Subsequently, the aplication was communicated to Iceland.
In the case, an aplication was successfully considered against the participation in the consideration of the case of a judge whose appointment was questioned due to the improper exercise of powers by the executive authority, without effective consideration of this issue by the courts of the country and the inability to receive compensation. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The newly created Court of Appeal of Iceland, which began working in 2018, rejected the applicant's complaint against the verdict in his criminal case. The applicant claimed that one of the judges of the court, A. E., was appointed in violation of the procedure established by the legislation of Iceland. The Supreme Court of Iceland recognized that the appointment of a judge was made with violations. First, by replacing four candidates whom the Qualification Commission considered the most suitable of the 15 likely candidates with four other candidates, including A. E., who was not included in the specified list of 15 persons, without conducting an independent assessment of the facts, and without providing appropriate grounds for her decision, the Minister of Justice of Iceland violated Icelandic law. Secondly, the Icelandic Parliament did not vote on each candidate separately, as required by Icelandic law, but instead voted for the en bloc list submitted by the Minister. However, the Supreme Court of Iceland ruled that the violations mentioned could not be considered as nullifying the appointment of judges and that the applicant was guaranteed the right to a fair trial. In the Judgment on the present case of March 12, 2019, the Chamber of the European Court of Justice concluded by five votes in favor and two against that there had been a violation of the right to a court "created on the basis of law". For this purpose, the issue of whether there was a "clear" violation of the legislation of the relevant State was decisive in the consideration of the present case. At the request of the Icelandic authorities, the case was referred to the Grand Chamber of the European Court of Justice.
Regarding compliance with article 6, paragraph 1, of the Convention. The task of the Grand Chamber of the European Court was limited to determining the consequences of violations of Icelandic law, namely whether the participation of Judge A. E. deprived the applicant of the right to have his case considered by a "court established on the basis of law". The present case provided the Grand Chamber of the European Court of Justice with an opportunity to clarify and clarify the meaning of the concept of a "court established by law", including by examining how the individual components of this concept should be interpreted in order to best reflect its purpose and ensure that the protection provided by it would be truly effective. The Grand Chamber of the European Court also analyzed the relationship of the mentioned concept with other "convention requirements", namely, the requirements of independence and impartiality.
(a) The scope of the requirement of a "court established by law". 1. "The Court". The "court" is characterized by its judicial function and must also meet a number of requirements, such as independence, in particular, from the executive branch, impartiality, and the term of office of judges. In addition, the very concept of "court" implies that it consists of judges selected on the basis of their merits after a thorough procedure that ensures the appointment of the most qualified candidates both in terms of their technical competence and moral integrity. The higher the court is in the hierarchy of the courts of the State, the more strict the applicable criteria should be. Other selection criteria may apply to non-professional judges, especially with regard to their technical qualifications.
- "The court created". Taking into account the fundamental consequences that compliance with the rule of law has for the proper functioning and legality of the judiciary in a democratic State, the process of appointing judges must necessarily contain the inherent concept of "creating" a court or tribunal "on the basis of law". Although the applicable case-law of the European Court so far has mainly concerned violations of domestic legislation directly regulating issues of the court's competence or having a direct impact on the composition of the court, there are also precedents pointing in this direction, such as the case "Ilatovsky v. Russia" (Judgment of the European Court of July 9, 2009, complaint No. 6945/04 (See: Bulletin of the European Court of Human Rights. 2010. N 3)). This approach was also confirmed with respect to the purpose of the requirement of a "court established on the basis of the law": reflecting the principle of the rule of law, which is aimed at protecting the judiciary from illegal external influence, in particular, from the executive branch. The process of appointing judges may be subjected to such improper influence and therefore requires close attention. Moreover, the mentioned requirement covers any provision of the legislation, including, in particular, the norms on the independence of judges. Thus, it is obvious that violations of the law governing the process of appointing representatives of the judiciary can make the participation of the relevant judge in the consideration of the case "illegal". As a result, there is a significant consensus among the States surveyed on this issue.
- "The court established on the basis of the law". The nature and limits of the cases considered so far by the European Court, for the most part, required consideration of the question of whether the relevant court was based on the norms of the law and whether the requirements of the legislation were observed in the formation and functioning of this court. However, compliance with the requirement of the existence of a" court established on the basis of the law "also meant the existence of a"court established in accordance with the law". This requirement is in no way aimed at ensuring the unity of practice of the States parties to the Convention. The mere fact that the executive power has a decisive influence on the appointment of judges cannot in itself be used to derogate from the aforementioned requirement. The issue is to ensure that the applicable domestic legislation on the appointment of representatives of the judiciary is formulated, as far as possible, in an unambiguous way, in order to prevent arbitrary interference, including interference by representatives of the executive branch.
- The close relationship between the requirements of "independence", "impartiality" and "a court established on the basis of law". When considering a case in accordance with the requirement of a "court established on the basis of law", it is necessary to keep in mind the common goal, which is also shared by the guarantees of "independence" and "impartiality", namely, support for the fundamental principles of the rule of law and the separation of powers. Thus, it should be regularly checked whether the alleged violation in a particular case was so serious as to violate the mentioned fundamental principles and compromise the independence of the court in question. In this regard, "independence" refers to personal and institutional independence, which is necessary for making unbiased decisions, and is defined as (i) a state of mind that allows a judge to be immune to external pressure due to moral stability, and as (ii) a set of institutional and operational measures, including both the procedure for appointing judges, which ensures their independence, and selection criteria based on the merits of candidates, which should provide guarantees against improper influence and / or unlimited discretion on the part of other state authorities both at the first stages of the judge's appointment process and during the performance of his or her official duties by the judge.
(b) The boundary value rule. The Grand Chamber of the European Court agreed with the logic and general content of the "gross violation" rule proposed by the Chamber of the European Court, developing it further (see below). However, to avoid ambiguity, the Grand Chamber of the European Court decided not to apply the same concept. Although the Contracting States should be given a certain margin of appreciation, the criteria under consideration, taken together, should provide a reliable basis that the European Court of Justice, and ultimately the courts of the Contracting States, can use when assessing whether the violations in the particular proceedings under consideration were so serious that they could lead to a violation of the right to a court established by law, and whether a fair and proportionate balance between competing interests was achieved in the circumstances of the particular case.
- The first step in applying the rule. In principle, there should be a clear violation of domestic legislation in the sense that the violation can be objectively and plausibly identified as such. The European Court usually agrees with the opinion of the courts of the respondent State as to whether there has been a violation of domestic law, unless the violation is "gross", that is, if the conclusions of these courts can be considered arbitrary or obviously unfounded. However, the absence of a clear violation as such does not exclude the establishment of a violation of the right to a court established on the basis of the law. At the same time, there may be circumstances when the procedure for creating a court, although outwardly meeting the requirements of the relevant norms of domestic legislation, nevertheless leads to results that are incompatible with the object and purpose of the above-mentioned convention law. In such circumstances, the European Court should continue to consider the case in accordance with the second and third steps on the application of the border value rule.
- The second step for applying the rule. The violation in question must be assessed in the light of the object and purpose of the requirement of a "court established on the basis of law", namely, to ensure that representatives of the judicial community can perform their duties free from improper interference and, thus, comply with the principle of the rule of law and the separation of powers. In this regard, only those violations that relate to the fundamental rules of the procedure for the appointment of judges, that is, violations that affect the essence of the right to be considered by a "court established by law", seem to lead to a violation of this right (for example, when appointing a person as a judge who does not meet the relevant qualification criteria for this position, or in violations that may otherwise negatively affect the purpose and consequences of applying the requirement of a court "established by law", as interpreted by the European Court). In this regard, the purpose of the violated law should be taken into account, namely, whether it was aimed at preventing any improper interference by the executive authorities in the activities of the judiciary.
Consequently, violations of an exclusively technical nature that did not affect the legality of the judicial appointment process should be considered as not reaching the threshold required for the application of the relevant provisions of the Convention.
- The third step in applying the rule. Consideration by the courts of the relevant State, if at all, of the question of the legal consequences (in the light of individual convention rights) of a violation of the norms of domestic legislation in the field of appointing judges plays an important role in determining whether such a violation is a violation of the right to a "court established on the basis of law, and, therefore, forms part of the process of applying this rule directly. Such consideration should be carried out on the basis of applicable convention standards with due consideration of the balance of competing interests in the case. In particular, a balance should be established in order to determine whether there was an urgent need of a significant and relevant nature that justifies a departure from the principles of legal certainty and the irremovability of judges in the specific circumstances of the case. If the authorities of the State concerned have examined the case, which also affected the issues of the Convention complaint, and the necessary conclusions have been drawn, the European Court should be given very serious grounds so that it can substitute its conclusions for the decisions of the courts of the respondent State concerned.
The absence of established deadlines for appealing violations committed in the process of appointing judges does not mean in practice that the mentioned appointment can be appealed for an indefinite period of time. As time passes, the principle of preserving legal certainty will gain more and more weight in relation to the right of an individual participant in the process to a "court established on the basis of law", while establishing the necessary balance of interests of the parties. It is also necessary to take into account the obvious difficulties that arise over time, and the statutory limitation periods that can be applied in the legislation of the relevant State to complaints of the nature under consideration.
(c) The application of the above-mentioned principles in the present case. 1. Whether there has been a clear violation of Icelandic law. Given the findings of the Supreme Court of Iceland, the first condition for applying the rule was obviously fulfilled.
- Whether violations of Icelandic law were related to the fundamental rules of procedure for the appointment of judges. There was a gross violation of the fundamental rule of procedure for the appointment of judges in Iceland, especially if we consider it in the light of the main goal: to limit the influence of the executive branch by including an independent Qualification commission in the process and, thus, to strengthen the independence of judges in Iceland.
As for the violations committed by the Minister of Justice, she did not explain why she chose some candidates instead of others, as required by Icelandic law. All four candidates proposed by the Minister of Justice had more judicial experience than the four rejected candidates. However, in the initial list prepared by the Qualification Commission, there were candidates who had less qualifications than the four rejected candidates, whom the Minister of Justice nevertheless decided to keep on the list. Similarly, among the candidates who were not recommended by the Qualification Commission, there were persons who had more judicial experience than the four candidates eventually selected by the Minister of Justice. Although the Minister of Justice presumably also took into account subjective factors, such as the" success " of a career, there was no explanation of how the Minister assessed this factor. The actions of the Minister of Justice were of such a nature that they caused objectively justified fears that she acted from political motives: it is impossible to ignore the applicant's allegations about political ties between the Minister of Justice and the husband of one of the appointed judges, moreover, the minister was a member of a political party that had a majority in the coalition government, and only with their votes the Minister's proposal was adopted in parliament. This fact alone was enough to cast doubt on the legality and transparency of the entire procedure.
As for procedural shortcomings, the Althing of Iceland not only did not require the Minister of Justice to provide objective justifications for the candidates for judges proposed by her, but also did not apply special voting rules, which was a violation of the supervisory function of the Althing of Iceland as a body that controls the improper use of the discretion granted to them by representatives of executive authorities. Consequently, the applicant's opinion that the decision of the Althing of Iceland was primarily due to political considerations of the parliamentary party cannot be considered unfounded.
- Whether the complaints concerning the right to a "court established by law" were effectively considered by the courts of Iceland, and whether the applicant was granted compensation in connection with these complaints. The Supreme Court of Iceland did not consider the complaint of violations of the provisions of the Convention and did not take into account the question of whether the purpose of the guarantee contained in the concept of a court "created by law"was achieved. First, although the Supreme Court of Iceland had the authority to consider the consequences of the violations mentioned and correct them, it did not take the necessary measures based on its own conclusions. The attention that the Supreme Court of Iceland has paid to the fact that the appointments of judges have entered into force implies an agreement that this court could not do anything about the issue under consideration after the appointments were made, or even a complete refusal to accept the consequences of these appointments. The Supreme Court of Iceland mainly focused on the question of whether the identified shortcomings had any impact on the independence or impartiality of Judge A. E., that is, on a question that was not directly related to a separate assessment of compliance with the requirement of having a court "established by law". Secondly, the Supreme Court of Iceland did not respond to any of the applicant's extremely precise and relevant arguments and complaints regarding the above-mentioned claim (see above). Consequently, it was not clear from the decision of the Supreme Court of Iceland itself why the procedural violations complained of were not of such a nature as to compromise the legality of the appointment of Judge A. E. and, as a result, the legality of his subsequent participation in the applicant's case. Thirdly, with regard to the balance that should have been established by the Supreme Court of Iceland, although a certain period of elapsed time may in principle shift the balance towards "legal certainty", in the present case the available facts did not indicate this. Appointment of Judge A. E. and three other candidates for judges were appealed immediately after the completion of the relevant procedure, and the alleged violations were established even before the judges took office.
The restraint shown by the Supreme Court of Iceland in investigating this issue and its inability to establish a fair balance between, on the one hand, compliance with the principle of legal certainty and respect for the law, on the other, was not exclusively related to the applicant's case, but was the established practice of the Supreme Court of Iceland. This practice created problems for two reasons. First, it undermined the important role of the judicial community, which it plays in the system of checks and balances inherent in the separation of powers. Secondly, taking into account the importance and consequences of the violations in question, as well as the fundamental role that judges play in a democratic State guided by the rule of law, the consequences of such violations could quite reasonably not be limited to individual candidates for judges who suffered because of their non-appointment to office, but affect the entire society as a whole.
- Output. The applicant was denied his right to a "court established on the basis of law" due to the participation in the consideration of his case of a judge whose appointment to this position was accompanied by violations that undermined the very essence of the right under consideration.
The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention (adopted unanimously).
The European Court decided that the question of whether the revealed violations compromised the independence and impartiality of the same court does not require further consideration.
Concerning the application of article 46 of the Convention. The Court considers that the finding of a violation of the Convention in the present case cannot in itself be considered as imposing on the Icelandic authorities the obligation provided for by the Convention to resume proceedings in all similar cases that have since become res judicata under Icelandic law.
In the application of article 41 of the Convention. The European Court held that the finding of a violation of the Convention would in itself constitute sufficient just compensation.