Case: Case 26374/18

Descriptors: Principle of judicial independence and impartiality / Right to a judge predetermined by justice

Judgment in which the Court defined what is understood by a Court predetermined by Law, which was subsequently applied in the Judgment of August 7, 2021, relative to the case of Flor w Polsce sp. z o.o. v Poland.

In the litis, Mr. Andri Ástráðsson, who was convicted criminally, appealed to the Court of Appeals established in 2018, which rejected his allegations. Faced with such decision, he filed the mandatory appeal. In this case, the Supreme Court recognized that the appointment of the members of the said Court of Appeals was made irregularly, ignoring different requirements of the procedure, but did not declare the nullity of the process.

For its part, the ECHR Chamber, in its judgment of March 12, 2019, declared that Article 6.1 of the Convention had been violated, but the Icelandic government required that the case be subject to a judgment by the Grand Chamber, in accordance with the provisions in Article 43 of the Convention. A request that the Court took advantage of in its final judgment to define its doctrine in relation to the content of the right to enjoy “a judge predetermined by law”, and its intimate connection with the judicial independence and impartiality principle.

To this end, in order to elucidate when the entity of the irregularity in the procedure reaches a magnitude such that it can be considered an authentic and genuine violation of Article 6.1 of the Convention, in its aspect of the right to have a judge predetermined by law, the sentence's reasoning proposes a test divided into three sections: 1) There must be a flagrant, manifest, genuine and objectively identifiable violation of national law; 2) The procedure's violation must frustrate the separation of powers and the rule of law, that is, it must entail interference in the free and autonomous action of the judges. Therefore, only those cases in which the essential content of the “right to a judge predetermined by law” is effectively affected may be considered as a violation of Article 6.1 of the Convention; and 3) The existence of an effective judicial control in which the question of the existence of an act likely to violate Article 6.1 of the Convention is addressed.

Based on this test, the European Court of Human Rights rules the violation of Article 6.1 of the Convention, since there is a manifest violation of national law, a violation that entails excessive influence of the Executive in the appointment of magistrates. Action that, in addition, and in the last instance, has not been the subject of the pertinent judicial examination by the Supreme Court.

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