By: Bustos, Rafael

In the very relevant Grand Chamber’ Judgment, Guðmundur Andri Ástráðsson v. Iceland, of December 1, 2020, the ECHR confirms the result, but not the sentence’s argumentation previously delivered by the Chamber on March 12, 2019.

The case concerns the establishment of Iceland’s Court of Appeal. According to the (new) law of the Judiciary, an experts’ committee was in charge of evaluating the candidates for the magistrate positions of said court. The Committee’s chairman sent the Justice Minister his report with a list of those considered most qualified. The Minister made a proposal to Parliament that included four candidates who were placed on the list outside the top positions (among them Judge A.E.). The Minister did not give reasons for departing from the order of the committee's proposal. Parliament approved the list proposed by the Minister and the President proceeded to appoint them.

Two of the candidates rejected by the Minister appealed the appointment’s legality. The Ireland Supreme Court eventually rejected the claim, but accepted that "personal injury" had been inflicted on them. The Court understood that the law had been violated by not having motivated the ministerial proposal justifying the merits of the candidates “promoted” on the list. Parliamentary procedure was also considered defective because each candidate did not vote separately, as prescribed by law, and did so globally. However, the Court did not annul the appointments.

In the specific case raised, the appellant was convicted for committing a crime. He appealed to the newly created court of appeal, in which section was appointed Judge A.E. along with two other judges. The appellant challenged Judge A.E. due to irregularities in her appointment. However, the national courts understood that the appointment of A.E. was valid and there were insufficient reasons to justify that the appellant had not received a fair trial before an independent and impartial tribunal despite procedural flaws.

The ECHR specifies that it does not evaluate the mechanism for appointing judges in Iceland. Nor does it examine whether there was a violation of domestic law because it has already been declared by the Icelandic Supreme Court. Its work is limited to studying what the consequences of such offenses should be and, in particular, if they affected the right to appeal to a court provided by law.

Getting into the legal forecast requirement contained in art. 6.1, the ECHR understands that its essential purpose is to prevent the judicial organization from depending on the Executive’s discretion by regulating it in a rule issued by the legislature. After exposing its jurisprudence on the subject, it announces its redefinition based on its relationship with the other two Court’s institutional requirements included in art. 6.1: independence and impartiality. To do this, it analyzes the three elements of the formula (court provided for in the law) separately and then their interrelation with these other two institutional requirements.

Regarding the first one ("court"), it emphasizes that it is inherent in the concept that it is composed of judges selected on the merit basis. It is clear to the Court that the higher the position to which one is chosen is in the judicial hierarchy, the more demanding the selection criteria required must be. And this in order, on the one hand, to ensure the technical capacity of the judicial career, and to strengthen the citizens’ confidence in the justice administration and, on the other, to confer an additional guarantee of the personal independence of the judges. In this way, the ECHR clearly connects the legal provision notions, rigorous appointment process and independence (objective and subjective) of judges. Regarding the second term (“planned”) it links it independently in that the legal provision the appointment process aims to protect the judiciary from external influences, especially from the executive branch. But in addition, the appointment according to the law confers legitimacy and constitutional authority to the judge. This means, contrario sensu, that the infringement of appointment rules may undermine the judge’s legitimacy to exercise his position. In this way, infractions in the appointment process (and this is reflected in the comparative analysis carried out in the judgement’s antecedents) may constitute a violation of the term examined. Regarding the third term ("law"), the ECHR maintains that established in accordance with the law means that the relative norms of national law on judicial appointments are drafted in unambiguous terms to avoid arbitrary interference in the appointment process.

The legal forecast requirement cannot be understood, in the opinion of the ECHR, without connecting it to the independence and impartiality notions. In this sense, it states in general terms that a Court that is not independent and impartial simply cannot be considered a Court. Although the three institutional elements of art. 6.1 serve specific purposes, find their link in that their purpose is to guarantee the separation of powers and the rule of law validity. Citizens' trust in justice will rest on the protection of the three elements.

This connection will imply that when it comes to establishing whether the infractions in the process of appointing a judge are harmful to the right of citizens to a fair trial, it must be determined whether they have been serious enough to compromise the Court’s independence. Because of this reason, the ECHR proceeds to formulate a test on “the seriousness threshold” of the infringement of the right to a judge provided for in the law that must be reached so that an appellant can question the Court’s composition at any time and so that consequently, the ECHR may review the national courts actions. At this point, the Court understands that it must exercise strong self-restraint because the principles of legal certainty, on the one hand, and the immobility of judges, on the other, must be safeguarded.

This threshold was located in its previous jurisprudence (and in the Court ruling) in the flagrant nature of the violation. But this requirement made sense in cases in which the national courts had not declared the violation of these norms. In this case, the national courts had clearly established that the appointment process had violated internal regulations. Because of this reason, the Court proceeds to formulate a test in three steps so that its intervention can be justified.

The first step consists of proving the manifest violation of national law’s existence, so that the offense must be objectively and genuinely identifiable as such. It may happen that apparently legal appointment procedures (that is, they are not flagrant violations) produce incompatible results with the precept’s purpose, so the ECHR must continue with the test’s next step. This is the affectation of a fundamental rule of the judges’ appointment process. The infringement of national norms must be examined from the perspective of the purpose of the guarantee and ensure that judges can carry out their functions without external influences, guaranteeing the division of powers and the rule of law. The third and final step is the non-existence of an effective review and reparation of the violation by the national courts. The Court does not accept that the mere existence of judicial review of the appointment process is sufficient to avoid its oversight. Such a review needs to be neither arbitrary nor manifestly unreasonable. But in addition, in the case of assessing the violation of domestic norms, the national courts must be aware that the consequences of such a declaration must be in accordance with the Convention principles.

Applying the test’s steps to the case, the ECHR considers that the violation was manifest because the Icelandic Supreme Court so declared it. It also affected fundamental rules because the lack of ministerial motivation for the reasons why it deviated from the proposal made by the technical committee implies the creation of doubts regarding the independence of the affected judges and because the lack of individual vote in parliament represented an evident decrease in the aim of legitimizing the newly appointed judges. Finally, the process judicial review was ineffective because it did not proceed to extract the consequences of its sentence necessary to guarantee the right. Specifically, it did not annul the appointment. This highlights, on the one hand, that the courts role in sustaining the checks and balances inherent in the division of powers is undermined and, on the other, that serious procedural violations cannot be alleged by the defendants (only by those affected in the contest) irreparably undermining the public's trust in their administration of justice.

Six particular votes were filed in the sentence. Votes that oscillate between the proposal to declare a systemic problem in the appointing judges process in Iceland due to the absence of a judicial council and those who argue that the ECHR should not have entered to assess a case that had already been evaluated in detail at the national headquarters.

The judgement is enormously relevant from various points of view. In general, it should be noted that between the Chamber’s judgment (in March 2019) and the Grand Chamber’s one (in December 2020) the situation of judicial independence in Europe has acquired an unusual importance as a result of the Court of Justice of the European Union decisions regarding in several cases related to Poland and with respect to an incorrect appointment of a magistrate of the former court of public service of the CJ. The judgement’s length and its detail cannot be explained, in our opinion, without those decisions that, on the other hand, are profusely cited by the Strasbourg Court both in the antecedents and in the argumentation. This is why the unusual speed of processing is understood: in just two and a half years the ECHR (in Chamber and Grand Chamber) had ruled on the merits of an essential matter for the definition of judicial independence in Europe, which is the subjection of national authorities to the legislation regulating the appointment of judges.

The examined decision covers, in our understanding, three basic objectives. In the first place, it defines and increases the control of the ECHR over the application of the regulatory legislation not only of the appointment of judges, but potentially also of any legislation relating to their legal status. Second, it orders and defines the basic elements of judicial independence established in its jurisprudence. The detailed analysis of the three elements of the clause has allowed it to systematize a dispersed and very complex jurisprudence. The same occurs in the meticulous development of the three steps of the infraction severity threshold test. Third, one of the qualified addressees of this judgment and of its case law is undoubtedly the Court of Justice of the EU. The ruling is fully in line with the jurisprudential line initiated by Luxembourg in 2018 (despite the fact that the signers of the private vote cast doubt on it). It supposes, in this sense, a strong support to its evolution in this matter. It also nourishes it with content and arguments for the examination of the cases currently under discussion regarding judicial independence before Luxembourg.

Read the decision