EIT: Islannin muutoksenhakutuomioistuimen tuomarinimityksissä vakavia puutteita – tuomioistuin ei täytä EIS:n asettamia vaatimuksia

1.12.2020 | Oikeusuutiset

Markku Fredman

Unanimous violation of right to a “tribunal established by law” on account of grave breaches in the appointment of a judge to Icelandic Court of Appeal

In today’s Grand Chamber judgment in the case of Guðmundur Andri Ástráðsson v. Iceland (application no. 26374/18) the European Court of Human Rights held, unanimously, that there had been:

  • a violation of Article 6 § 1 (right to a tribunal established by law) of the European Convention on Human Rights.

The case concerned the applicant’s allegation that the new Icelandic Court of Appeal (Landsréttur) which had upheld his conviction for road traffic offences was not “a tribunal established by law”, on account of irregularities in the appointment of one of the judges who heard his case.

Given the potential implications of finding a violation and the important interests at stake, the Court took the view that the right to a “tribunal established by law” should not be construed too broadly such that any irregularity in a judicial appointment procedure would risk compromising that right.

It thus formulated a three-step test to determine whether irregularities in a judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law. It then proceeded to find as follows.

Over the past decades, the legal framework in Iceland governing judicial appointments had seen some important changes aimed at limiting ministerial discretion in the appointments process and thereby strengthening the independence of the judiciary. Controls on ministerial power had been further intensified in connection with the appointment of judges to the newly established Court of Appeal, where Parliament had been tasked with approving every candidate proposed by the Minister of Justice, in order to enhance the legitimacy of this new court.

However, as found by the Icelandic Supreme Court, this legal framework had been breached, particularly by the Minister of Justice, when four of the new Court of Appeal judges had been appointed. While the Minister had been authorised by law to depart from the Evaluation Committee’s proposal, subject to certain conditions, she had disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This rule was an important safeguard to prevent the Minister from acting out of political or other undue motives that would undermine the independence and legitimacy of the Court of Appeal, and its breach had been tantamount to restoring the discretionary powers previously held by her office in the context of judicial appointments, thereby neutralising the important gains and guarantees of the legislative reforms. There had been further legal guarantees in place to remedy the breach committed by the Minister, such as the parliamentary procedure and the ultimate safeguard of judicial review before domestic courts, but all those safeguards had proved ineffective, and the discretion used by the Minister to depart from the Evaluation Committee’s assessment had remained unfettered.

Applying its three-step test, the Court held that the applicant had been denied his right to a “tribunal established by law” on account of the participation in his trial of a judge whose appointment had been undermined by grave irregularities which had impaired the very essence of that right.



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