Guest Post on Guðmundur Andri Ástráðsson v. Iceland: Breach of Domestic Law on Judicial Appointments Violated the Right to a Fair Trial

By Ketevan Kukava, head of Rule of Law and Human Rights Direction, IDFI

Facts of the Case

The case of Guðmundur Andri Ástráðsson v. Iceland, decided on 1 December 2020, provided the Grand Chamber of the European Court of Human Rights (ECtHR or the Court) with an opportunity to refine the concept of a “tribunal established by law”. This case addresses the issue of judicial appointments and the way the irregularities in this process can lead to a violation of the right to a fair trial.

The case concerned the irregularities in the procedure for the appointment of a judge of the newly-established Court of Appeal of Iceland. The Minister of Justice breached domestic law by removing from the list of fifteen candidates, assessed as the most qualified by the Evaluation Committee, four candidates and replacing them with four other candidates who had been ranked lower. The Minister had proceeded in that manner without an independent examination of the merits of the candidates in question and without substantiating her decision. Moreover, the Parliament had not held a separate vote on each candidate, as required by domestic law, but instead voted in favour of the Minister’s list en bloc. 

Mr Guðmundur Andri Ástráðsson, the applicant, was convicted by the District Court of Iceland for violating the Traffic Act. His case came before the newly established Court of Appeal of Iceland. The panel was composed of three judges, including A.E., who was one of the four judges who had been proposed by the Minister of Justice for appointment to that court. The applicant requested that A.E. withdraw from the case due to the irregularities in the procedure leading to her appointment as a judge. This motion was rejected and the Court of Appeal upheld the District Court’s judgment.

The Supreme Court of Iceland acknowledged that the judge’s appointment had been irregular. However, it held that these irregularities could not be considered to have nullified the appointment and that the applicant had received a fair trial.

In a judgment of 12 March 2019, a chamber of the ECtHR found, by five votes to two, that there had been a violation of the right to a fair trial as the judicial appointment procedure contravened the very essence of the principle that a tribunal must be established by law.  The Grand Chamber in a judgment of 1 December 2020 also found a violation of Article 6(1) of the Convention, unanimously even. The Grand Chamber’s decisive test was whether there had been a “flagrant” breach of domestic law in the process of appointment of judges.

The Grand Chamber Judgment

In the case of Guðmundur Andri Ástráðsson v. Iceland, the ECtHR broadened the scope of the concept of a “tribunal established by law”. The Court’s case-law on the requirement of a “tribunal established by law” had predominantly concerned breaches of domestic rules directly regulating the competence of a tribunal to rule on a particular case, or of those rules which had immediate effects on the composition of a tribunal hearing an applicant’s case. In this case, the Grand Chamber had to answer the question of whether breaches of domestic law that have occurred at the stage of the initial appointment of a judge may violate the right to a "tribunal established by law".

According to the Court, the process of appointing judges constitutes an inherent element of the concept of “establishment” of a court or tribunal “by law” (§227). A tribunal that is not established in conformity with the intentions of the legislature will lack the legitimacy required in a democratic society to resolve legal disputes (§211).

The Court emphasized that a finding that a court is not a “tribunal established by law” might have considerable ramifications for the principles of legal certainty and irremovability of judges. Therefore, a balance must be struck between competing interests (§240). The Grand Chamber developed a threshold test and elaborated on three cumulative criteria to determine whether the irregularities in a judicial appointment procedure are of such gravity as to entail a violation of the right to a “tribunal established by law”:

1.  A manifest breach of the domestic law - the breach must be objectively and genuinely identifiable as such;

2.  The ability of the judiciary to perform its duties free of undue interference - breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as a judge who did not fulfill the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, must be considered to violate that requirement;

3.  National courts’ interpretation and application of domestic law - the review conducted by national courts, if any, plays a significant role in determining whether such breach amounted to a violation of the right to a “tribunal established by law” unless their findings are arbitrary or manifestly unreasonable.

In the light of the three-step test, the Grand Chamber found the violation of the right to a fair trial. There was a manifest breach of the domestic law in two respects as acknowledged by the Supreme Court of Iceland: firstly, the Minister of Justice failed to provide adequate reasons for her departure from the Evaluation Committee’s proposal; secondly, Parliament did not comply with the special voting procedure. 

According to the Court, the uncertainty surrounding the Minister’s motives raised serious doubts of irregular interference by the Minister in the judiciary and thus tainted the legitimacy of the whole procedure (§265). While the Minister was authorised to depart from the Evaluation Committee’s proposal, she had disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This procedural rule was an important safeguard to prevent the Minister from acting out of political or other undue motives (§288). Besides, Parliament did not fulfil its duty as the guarantor of the lawfulness of the appointment procedure. As a result, there had been a grave breach of a fundamental rule of the procedure for appointing judges. 

Moreover, the Supreme Court of Iceland could not remedy the effects of the aforementioned irregularities on the applicant’s fair trial rights. Although there were legal guarantees in place to remedy the breach committed by the Minister, such as the procedure before Parliament and the judicial review by domestic courts, all those safeguards proved ineffective (§288).

The Grand Chamber noted that the irregularities in the appointment procedure were of such gravity that they undermined the very essence of the right to be tried before a tribunal established by the law. Having made that finding, the Court concluded that the remaining question as to whether the same irregularities had also compromised the independence and impartiality of the same tribunal did not require further examination (§295).

The Court emphasized that with the passage of time, the preservation of legal certainty will carry increasing weight in relation to the litigant’s right to a “tribunal established by law” in the balancing exercise that must be carried out (§252). Such approach has been criticized by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion, claiming that the manipulation of the appointment of a judge to a court in violation of the relevant eligibility criteria is an absolute procedural defect that cannot be remedied, neither by the passing of time nor by the acquiescence of the defendant. 

The Grand Chamber considered that a finding of a violation could be regarded as sufficient just satisfaction and did not award non-pecuniary damages to the applicant. Besides, the Court stressed that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation to reopen all similar cases that have since become res judicata in accordance with Icelandic law (§314). 

Consequently, it is up to the state to take appropriate measures to solve existing problems and to prevent similar violations in the future. This approach of the Grand Chamber was criticized by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion, suggesting that without clear instructions to the respondent State this judgment remains “a toothless, paper tiger”.

Therefore, despite its wider significance, this judgment did not provide tangible benefits to the applicant himself: neither the financial compensation nor reopening of the criminal proceedings was guaranteed by the Grand Chamber. The practical implication of the significant principles laid down in this judgment is dependent on the respondent State that is instructed “to draw the necessary conclusions from the present judgment”.

The Significance of the Grand Chamber Judgment beyond Iceland

The Grand Chamber’s judgment is significant in terms of clarifying the standards concerning the right to have one’s case heard by a tribunal established by law. It entails an important addition to the scope of this right and is expected to have important consequences: domestic courts are now under a Convention obligation to assess whether the judges have been appointed in conformity with the relevant legislative provisions.

The case of Guðmundur Andri Ástráðsson v. Iceland can have far-reaching implications beyond Iceland. As already pointed out, this judgment puts in question the Polish judicial reforms and whether decisions taken by Polish courts where judges were appointed by the new politically controlled National Council for the Judiciary can be regarded as decisions by a “tribunal established by law”.

Besides, this judgment might have a considerable impact on Georgia as well. In 2019, the selection procedure of the Supreme Court judges in Georgia was severely criticized. According to OSCE/ODIHR, the requirement for merit-based decision-making was seriously undermined by the use of secret votes throughout the process and the absence of a requirement for justification of the rankings and nominations.

As pointed out by the Grand Chamber in the case of Guðmundur Andri Ástráðsson v. Iceland, the absence of a manifest breach of the domestic rules on judicial appointments does not as such rule out the possibility of a violation of the right to a “tribunal established by law” (§ 245). There may be circumstances where a judicial appointment procedure that is seemingly in compliance with the relevant domestic rules nevertheless produces results that are incompatible with the object and purpose of the Convention right. The Grand Chamber emphasizes that it will defer to the national courts’ interpretation and application of domestic law – unless their findings are arbitrary or manifestly unreasonable.

As stressed by the Grand Chamber, it is inherent in the very notion of a “tribunal” that it is composed of judges selected based on merit – that is, judges who fulfill the requirements of technical competence and moral integrity to perform the judicial functions required of it in a state governed by the rule of law. It remains to be seen whether the appointments in the Georgian Supreme Court and several Polish courts will become the subject of the ECtHR consideration. The case of Guðmundur Andri Ástráðsson v. Iceland indicates the potential success of challenging these appointments in Strasbourg. 

A New Year, A New Look for the ECHR Blog

As the new year of 2021 is starting, it is time for renewal. For this blog, this renewal already started last September with the extension of the editorial team. Now, in the thirteenth year of existence of this blog, we have decided to give it a new look. The blog now has a new logo that encapsulates in 'Council of Europe'-blue our visual identity. We are very grateful to graphic designer Yll Rugova for developing this new logo for us. In addition, we have also made some other, more subtle changes to the blog's look and feel for increased readability. 

As always, let us take the opportunity to thank you - all our readers - for your interest in our blog. Over the past extraordinary year, visitor numbers have increased once more to 245.000 in 2020 and 2.8 million since the blog's creation. It may come as no surprise that our most read post of last year was the analysis of Covid-19 responses and ECHR requirements, a guest post by dear colleague Jeremy McBride. 

We also thank our readers for conveying crucial information and updates to us and for submitting guests posts or other ideas, which we also warmly welcome in the year to come!

Let us end by wishing each of you a better year than the previous one, for your health, for the world, and for human rights,

Antoine Buyse and Kushtrim Istrefi

The Convention and the ECHR Blog in 2020

Dear readers of the ECHR Blog, 

2020 marked the 70th anniversary of the European Convention on Human Rights. Despite its age, the Convention system has never been more attractive. The scholarly work on the Convention continues to rise, with new books, articles, blogs, podcasts and knowledge clips, to name a few. 2020 also witnessed the birth of the first journal devoted exclusively to the Convention system, the European Convention on Human Rights Law Review. The Court too has become more inclusive and youthful over time. In 2020, the Court appointed the first female registrar and the youngest president of the Court.

 

2020 was also the year of an unprecedented attack on human life and human rights as a result of Covid-19. The death toll of more than 1.6 million from Covid-19, the disproportionate effects of the pandemic on vulnerable groups (e.g. rise of domestic violence) and the record number of derogations from and restrictions to the ECHR are only some of the aspects with which the Court will have to grapple in the coming year(s). These challenges will test the ability of the Convention system to secure human rights not just in times of peace but also of public emergencies. 

Over this year, we have published 60 posts in the form of analysis or news on the case-law of the Court and other developments relevant to the Convention system, such as derogations, or the renewed negotiations around the long-waited EU accession to the ECHR. As always, we have also continued to provide updates on new academic publications and events related to the Convention and the Court. And of course, the blog’s editorial team has doubled in numbers! 

In 2021, the ECHR Blog will continue to provide the platform for discussion of current and future challenges of the Convention system and to keep you abreast of such developments. We thank, as always our readers for your input and interest - it’s for you that we exist and hope to continue for many years to come. We welcome your submissions and feedback. 

Best wishes for a more prosperous and healthy New Year! 

Antoine Buyse and Kushtrim Istrefi 

 

New Book on the European Court of Human Rights by Judge Nussberger

Earlier this year, Angelika Nussberger published a book entitled The European Court of Human Rights with Oxford University Press. Nussberger is a former judge and vice-president of the European Court of Human Rights and an academic based at the University of Cologne. 

The book provides an in-depth analysis of, among others, the creation, organisation, adjudication by and procedures of the Court. It is an important book for anyone interested in the work of the Court and the Convention system. At the same time, the book is equally relevant for international law scholars interested in the functioning of the Court as an international adjudicatory body.  Here is the abstract of the book:

In this volume Professor Nussberger explores the Court's uniqueness as an international adjudicatory body in the light of its history, structure, and procedure, as well as its key doctrines and case law. This book also shows the role played by the Court in the development of modern international law and human rights law. Tracing the history of the Court from its political context in the 1940s to the present day, Nussberger engages with pressing questions about its origins and internal workings. What was the best model for such an international organization? How should it evolve within more and more diverse legal cultures? How does a case move among different decision-making bodies? These questions help frame the six parts of the book, whilst the final section reflects on the past successes and failures of the Court, shedding light on possible future directions.

 

ECHR Articles in December Issue of NQHR

The newest (December) issue of our SIM-based Netherlands Quarterly of Human Rights (NQHR, volume 38, issue 4) has just been published online. Apart from a column on the #BlackLivesMatter protests in the US and the SIM Peter Baehr lecture on digital human rights, all its substantive articles relate to the European Convention on Human Rights:

* Claire Loven, '“Verticalised” cases before the European Court of Human Rights unravelled: An analysis of their characteristics and the Court’s approach to them':

Based on Article 34 European Convention on Human Rights, individual applications must be directed against one of the Convention States. Originally ‘horizontal’ cases therefore must be ‘verticalised’ in order to be admissible. This means that a private actor who had first brought a procedure against another private actor before the domestic courts, must complain about State (in)action in his application to the European Court of Human Rights. Recently, some scholars and judges have raised procedural issues that may arise in these cases, but generally, these ‘verticalised’ cases have remained underexplored. To unravel verticalised cases before the ECtHR and to better understand procedural issues that may arise from them, this article provides a deeper understanding of the origins of verticalised cases and the Court’s approach to them. It is explained that verticalised cases before the ECtHR can be very different in nature. These differences are rooted in the different types of horizontal conflicts that may arise on the domestic level, the different relations between private actors they may concern, and the different Convention rights that may be at stake. The wide variety of verticalized cases is also reflected in the Court’s approach to them, as is the second main topic that the present article explores.

* Emre Turkut & Sabina Garahan, 'The ‘reasonable suspicion’ test of Turkey’s post-coup emergency rule under the European Convention on Human Rights':

'Since the 15 July 2016 failed coup, Turkey has seen the mass arrests and detention of hundreds of thousands of individuals; among them are judges and prosecutors, military personnel, police officers, journalists, lawyers, human rights defenders and opposition politicians who have been deprived of their liberty on an array of terrorism-related charges. While this has raised numerous human rights issues, this article focuses on those relating to pre-trial restrictions imposed on the right to liberty and security of individuals during the post-coup state of emergency. Building on the theory and use of the reasonableness concept in the field of pre-trial detention through a particular focus on the ‘reasonable suspicion’ test under Article 5 § 1 (c) of the European Convention on Human Rights (ECHR or the Convention), the article analyses the role of the European Court of Human Rights (the Court or the ECtHR) in enforcing the guarantees of the right to liberty in the Turkish post-coup cases of Mehmet Hasan Altan, Şahin Alpay, Alparslan Altan and Kavala. Against the background of pre-existing Convention standards on pre-trial reasonable suspicion in states of emergency, it finds that the ECtHR has adopted a stronger supervisory stance regarding the compatibility of Turkish post-coup detention practices than the more hesitant approach shown in the prior derogation context of Northern Ireland. While these decisions give some cause for optimism in the hope for a judicial boldness on the part of the ECtHR in condemning Turkey’s arbitrary detention practices during the state of emergency, the article argues that there is further scope for the Court to strengthen its protection in this respect. Notably, despite the positive aspects in the Court’s approach, by continuing to support the notion that the Turkish legal landscape is capable of addressing Article 5 violations and not tackling the underlying structural issues so clearly at play, the Court leaves a glaring gap in rights protection for those seeking justice.'

* Marcin Szwed, 'The notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the European Convention on Human Rights':

'This article presents a critical analysis of the case-law of the ECtHR with regards to the interpretation of the notion of ‘a person of unsound mind’ under Article 5 § 1(e) of the Convention. According to the Court, only a person who has been reliably diagnosed with a mental disorder and who poses a danger to himself or others can be legally detained as ‘a person of unsound mind’. However, the notion of ‘unsoundness of mind’ is not limited to such mental disorders which are treatable or which deprive the persons affected of their ability to self-control and so in the past the Court applied the said provision of the Convention to, among others, persons diagnosed with personality disorders or paedophilia who commited crimes acting with full criminal responsibility. The article argues that such a definition of the notion ‘a person of unsound mind’ is not sufficiently clear, what is dangerous from the perspective of protection of personal liberty. For this reason, the article proposes to limit the scope of the analysed notion to persons affected by such mental disorders that exclude or significantly reduce their ability to make informed decisions about their own health and/or to control their own behaviour and recognise the meaning of their own actions. Only then, provided that other criteria developed in the Court’s case law, such as dangerousness for self or others and lack of less restrictive alternatives, have been satisfied, detention of person with mental disorder may be consistent with the object and purpose of the Convention.'

Enjoy reading!

ECHR Decides the First Case Regarding Covid-19 Measures

The pandemic Covid-19 has affected the entire globe. Yet, the States have had different responses to this public health emergency. Measures vary from full to partial to ‘intelligent’ to no lockdown. Each response has been guided by different considerations, some paying more attention to public health, others to economy. From a human rights perspective, some States resorted to restricting human rights while others derogated from them.

People have complained about these various Covid-19 measures for being discriminatory, harsh or lenient, effective or ineffective and thus blamed governments and other institutions for not doing their job properly. Such cases are already reaching national and regional courts.

On 3 December 2020, a three judge Committee of the European Court of Human Rights decided (decision in French is here, and press release in English is here) in the case of Le Mailloux v. France on the adequacy of French Covid-19 measures. The applicant, a French national, invoking Articles 2, 3, 8 and 10 of the Convention complained of the "failure by the State to fulfil its positive obligations to protect the lives and physical integrity of persons under its jurisdiction. He complained in particular of restrictions on access to diagnostic tests, preventive measures and specific types of treatment, and interference in the private lives of individuals who were dying of the virus on their own".

The Court found that the applicant had not showed that he personally had been denied assistance or care in the context of the impugned general health measures. The Court ruled that if he were to have been directly affected by such measures, he should first contest the compatibility of such refusal with the Convention in the domestic courts.

In light of the above, the Court decided that the applicant complained in abstracto about the Covid-19 measures taken by the French Government. In particular, he had failed "to provide any information about his own condition and had failed to explain how the alleged shortcomings of the national authorities might have affected his health and private life". 

In these circumstances, the application was considered to amount "to an actio popularis and the applicant could not be regarded as a victim, within the meaning of Article 34 of the Convention, of the alleged violations".

This is the first decision of the ECtHR on Covid-19 measures and certainly will not be the last of cases to question the States’ responses to Covid-19. 

ECHR Law Review Issue 2 is Now Available Online

The European Convention on Human Rights Law Review (ECHR Law Review) is a scholarly journal devoted exclusively to the Convention system. The second issue of the ECHR Law Review is now available online. It contains articles, book reviews, an interview and editorial note on such topical issues as the current pandemic, Court's authority and the rule of law backsliding, as well as more foundational topics concerning the execution of judgments, the argumentation before and review by the Court. Some articles are open access and others can be downloaded for free by following the instructions here. 

Contributors to this issue include the current president, a former judge and a former deputy registrar of the Strasbourg Court, and eminent and emerging scholars working on the Convention system. Here is the full list of contributions:

 

Editorial

Authors: Vassilis P Tzevelekos and Kanstantsin Dzehtsiarou
Normal as Usual? Human Rights in Times of covid-19

Interview

Authors: Mikael Rask Madsen and Robert Spano

Authority and Legitimacy of the European Court of Human Rights

 

Articles

Author: Wolfgang Benedek
Are the Tools of the Council of Europe Sufficient to Protect Human Rights, Democracy and the Rule of Law from Backsliding?

 

Author: Ineta Ziemele
Liberal Values, Covid-19 and the Judiciary

 

Author: Conall Mallory

A Traffic-Light System of State Arguments before the European Court of Human Rights

 

Author: Janneke Gerards

Abstract and Concrete Reasonableness Review by the European Court of Human Rights

 

Author: Elif Erken
The Participation of Non-Governmental Organisations and National Human Rights Institutions in the Execution of Judgments of the Strasbourg Court

 

Book Reviews

Author: Michael O’Boyle

Lethal Force, the Right to Life and the echr: Narratives of Death and Democracy, written by Stephen Skinner

 

Author: Dimitrios Kagiaros

Courting Gender Justice: Russia, Turkey, and the European Court of Human Rights, written by Lisa McIntosh Sundstrom, Valerie Sperling and Melike Sayoglu

 

Author: Gerd Oberleitner
The Inter-State Application under the European Convention on Human Rights: Between Collective Enforcement of Human Rights and International Dispute Settlement, written by Isabella Risini

 

Author: Antal Berkes
The European Convention on Human Rights and General International Law, edited by Anne van Aaken and Iulia Motoc

 

Author: Alice Donald
Principled Resistance to ECtHR Judgments – A New Paradigm?, edited by Marten Breuer

New Book on the European Court of Human Rights and Turkey's Kurdish Conflict

Dr Dilek Kurban, based at the Hertie School of Government in Berlin, has published the book Limits of Supranational Justice. The European Court of Human Rights and Turkey's Kurdish Conflict with Cambridge University Press. The monograph is a must read for any academic or legal practitioner at the Court and beyond to understand the relations between the European Court of Human Rights and Turkey on one of the most contentious issues. It is based on dr Kurban's PhD dissertation, defended at Maastricht University, and it won one of the Erasmus Research Prizes in the Netherlands, one of the most prestigious accolades for a PhD. This is the abstract:

'With its contextualized analysis of the European Court of Human Rights' (ECtHR) engagement in Turkey's Kurdish conflict since the early 1990s, Limits of Supranational Justice makes a much-needed contribution to scholarships on supranational courts and legal mobilization. Based on a socio-legal account of the efforts of Kurdish lawyers in mobilizing the ECtHR on behalf of abducted, executed, tortured and displaced civilians under emergency rule, and a doctrinal legal analysis of the ECtHR's jurisprudence in these cases, this book powerfully demonstrates the Strasbourg court's failure to end gross violations in the Kurdish region. It brings together legal, political, sociological and historical narratives, and highlights the factors enabling the perpetuation of state violence and political repression against the Kurds. The effectiveness of supranational courts can best be assessed in hard cases such as Turkey, and this book demonstrates the need for a reappraisal of current academic and jurisprudential approaches to authoritarian regimes.'

New Book on 'Hard Power' and the ECHR

Dr Peter Kempees has published the new book “Hard Power” and the European Convention on Human Rights with Brill Publishers. I had the pleasure of being on the reading committee of the dissertation of dr Kempees on which this book is based. It was successfully defended at Leiden University in 2019. Older readers may know Peter Kempees, working at the registry of the European Court, as the editor of the systematic guide to the case-law of the European Court, published in the 1990s and at the time one of the key works of reference. This is the abstract of his new monograph:

'The European Convention on Human Rights is now crucial to decisions to be taken by the military and their political leaders in ‘hard power’ situations – that is, classical international and non-international armed conflict, belligerent occupation, peacekeeping and peace-enforcing and anti-terrorism and anti-piracy operations, but also hybrid warfare, cyber-attack and targeted assassination. Guidance is needed, therefore, on how Convention law relates to these decisions. 

That guidance is precisely what this book aims to offer. It focuses primarily on States’ accountability under the Convention, but also shows that human rights law, used creatively, can actually help States achieve their objectives.'

Summer School “ECHR in Times of Crises”

TU Dresden and Leipzig University are organising the 2^nd International Summer School "Human Rights in Theory and Practice" from September 5^th to 10^th, 2021 in Dresden.  The Summer School will focus on the topic of “The European Convention on Human Rights in Times of Crises” and will explore challenges and opportunities for the European Human Rights System arising out of situations of crisis. 

Themes such as emergency situations, populism, migration, and the role of economic, social and cultural rights in the context of crisis will be explored from an interdisciplinary perspective.

Speakers of the summer school include the Strasbourg Court Judge Anja Seibert-Fohr and other established scholars and practitioners working on the Convention system.

The Summer School is designed for advanced students of law, political science, international relations and similar fields. Prior knowledge about the European Human Rights System may be beneficial but is not required. The language of the Summer School will be English.

The programme is available here and the registration link is here. For more information you can visit the website of the summer school.