By Mathieu Leloup, PhD researcher in constitutional and administrative law at the University of Antwerp, Belgium, research group Government and Law
Is a court that includes a judge who was appointed in violation of the relevant legal provisions still a “tribunal established by law” as required under Article 6 ECHR? Though the question may be simple, it is certainly not an easy one. It is this matter that the Grand Chamber had to decide in the case of Guðmundur Andri Ástráðsson. Even before the actual judgment came out on 1 December 2020, the case had already sent a big shockwave throughout Iceland. After the Chamber had found a violation in its judgment in March 2019, the Minister of Justice resigned from her position. Nevertheless, the judgment in itself is also of ground-breaking importance, as it clarifies and broadens the scope of the right to a tribunal established by law, and thereby affects one of the foundational aspects of the rule of law.
Background to the case
Before we can turn to the facts that gave rise to the case before the Strasbourg Court, a bit of backstory is necessary. The judgment is a direct consequence of a large-scale reform of the judicial system in Iceland. The reform transformed the existing two-tier system into a three-tier system, by adding a new Court of Appeal between the District Courts and the Supreme Court. This Court of Appeal was to be composed of 15 judges, who would be appointed by the Minister of Justice based on a proposal by an Evaluation Committee (EC). According to the Judiciary Act, this proposal was in principle binding, but the Minister could decide to deviate from the proposed list if he or she obtained the approval of Parliament. This system was understood to lead to a more objective appointment procedure, strengthening the judicial independence.
The EC evaluated 33 applications for the post of Court of Appeal judge and issued a list of the 15 candidates it believed to be most qualified. However, the Minister disagreed with this ranking, as she believed that the EC had not given enough weight to the judicial experience of the candidates. Ultimately, she submitted a list to Parliament which only included 11 of the 15 original candidates and four candidates who, although evaluated by the EC as qualified candidates, had not been selected. The Parliament appointed the members on the list as it had been proposed by the Minister, but approved the list in its entirety instead of each proposed candidate individually, as the law required.
Two of the four candidates who had been on the original list but were ultimately not appointed initiated proceedings to challenge the lawfulness of the appointment procedure. Ultimately, the Supreme Court admitted that the appointment procedure had been deficient and that the Minister had not sufficiently substantiated her decision to remove exactly those four candidates from the list and replace them with precisely those four other candidates. However, it held that it was not in the power of the courts to decide who should be appointed to the office of judge and dismissed the claims for annulment of the appointment decision.
Facts of the case
Against this background, the facts of the case can be summarized rather easily. Mr Ástráðsson was indicted for a traffic violation and pleaded guilty before the District Court. Nonetheless, he decided to appeal, since he believed his sentence to be too high. His case came before the newly established Court of Appeal and was to be decided on by three judges, one of whom was one of the four judges who had not been on the original list of candidates by the EC. Clearly benefiting from a vigilant attorney, he requested that the judge in question withdrew from the case given the irregularities that had surrounded her appointment. This request was ultimately denied and the Court of Appeal upheld the District Court judgment.
The applicant then appealed to the Supreme Court on the basis that the Court of Appeal had not been a tribunal established by law, due to the irregularities surrounding the appointment of one of its judges. The Supreme Court ultimately dismissed this appeal. It acknowledged that some procedural mistakes had been made, but insisted that there was no sufficient reason to justifiably doubt that the applicant enjoyed a fair trial before independent and impartial judges.
At the outset, the Grand Chamber clarifies that there is no need to determine whether the domestic law on the appointment of judges had been contravened during the establishment of the new Court of Appeal. It states that the Supreme Court of Iceland had itself already established in no unclear wording that the relevant law had not been complied with. Rather, the question before it was what consequences should be attached to this breach and whether the participation of one of the four judges on the bench of the Court of Appeal had deprived the applicant of his right to be tried by a tribunal established by law.
The Court then continues by providing an overview of the existing case law concerning this right and by refining the existing principles. From this overview, it concludes that it is inherent in the very notion of a tribunal that it is composed of judges selected on the basis of merit (§220) and that the process of appointing judges necessarily constitutes an inherent element of the concept of “establishment” of a court or tribunal “by law” (§227). In other words, the Court confirms here that irregularities during the appointment proceedings can indeed lead to a violation of the right to a tribunal established by law.
Immediately, the Court raises the logical follow-up question whether any kind of irregularity during the appointment proceedings, no matter how small or technical, would lead to a violation of that right. It rightly flags the potential implications of finding a violation and the countervailing interests at stake, namely the principles of legal certainty and the irremovability of judges. Consequently, the Court stresses that a balance must be struck between these competing interests (§240).
The Court is mindful of the difficulties that are involved in devising a comprehensive balancing test, given the broad differences in practice between the European states. Because of this, it introduces three criteria, that should be taken cumulatively, which can guide the national courts in their assessment.
- There must be a manifestbreach of domestic law, in the sense that this breach must be objectively and genuinely identifiable as such (§244). However, the Court adds that even in the absence of such a breach there may be a violation of Article 6 ECHR. In such circumstances the second and third step must be examined;
- The breach in question must be assessed in the light of the object and purpose of the right to a tribunal established by law, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers. Thus, breaches that wholly disregard the most fundamental rules of the appointment procedure or that may otherwise undermine the purpose and effect of the right to a tribunal established by law, must be considered to violate this right (§246);
- The review conducted by the national courts is relevant as well. If the domestic courts have established a breach of the domestic rules during the appointment procedure and have assessed the legal effects of this in light of the relevant Convention case law, the Court will normally not substitute its own assessment (§248 and §251).
When the Grand Chamber applies these three criteria to the case at hand, it concludes to a violation of the right to a tribunal established by law. First, the breach of the domestic legal framework for the appointment of the judges had been clearly established by the Supreme Court. Second, the Court holds that this breach was of a considerable gravity. Whereas the Minister was in principle allowed to deviate from the list by the EC, she did so without a proper explanation as to why she chose to exclude those 4 particular judges and replace them with those 4 others. Her argument that not enough weight had been afforded to judicial expertise also did not suffice in this regard, since of the elected 15, there had been judges with less judicial expertise than the 4 removed who were nevertheless kept on the list. According to the Strasbourg Court, this uncertainty surrounding her motives raised serious doubts of irregular interference by the Minister and thus tainted the legitimacy of the whole procedure. Moreover, the Parliament had not fulfilled its duty as guarantor of the lawfulness of the appointment procedure since it itself breached the relevant rules. Third, the review by the Supreme Court did not mend these breaches. Even though it found that the relevant procedural rules had been violated, it failed to draw the necessary conclusions from this finding.
Because of this, the Grand Chamber unanimously concludes that the applicant’s right to a tribunal established by law had been violated due to the participation of a judge whose appointment had been vitiated by grave irregularities that impaired the very essence of this right.
The Ástráðsson judgment may be the most important judgment by the Court in the field of constitutional law this year. It entails an important addition to the scope of the right to a tribunal established by law. This right now envelops three distinct dimensions: (1) the actual legislative basis for the existence of the tribunal, (2) compliance with the rules for its jurisdiction and composition and (3) now also respect for the relevant rules concerning the appointment of judges.
This broadening of the scope of the right to a tribunal established by law can be expected to have important and far-reaching consequences. Essentially, domestic courts are now under a Convention obligation to assess whether its own judges or the judges of a lower court have been appointed in conformity with the relevant legislative provisions. As the Court has admitted itself (§236), the implications of finding a violation in this regard should not be underestimated. In essence, claims such as the one in this case can now be raised with regard to all domestic courts where procedural inaccuracies have (possibly) taken place with the appointment of one or more judges. The finding of a violation in such cases raises questions about the legitimacy of all the judgments that have been issued by the tribunal in question. Clearly, the further back in time the judge in question has been appointed, the more consequential the finding of such a violation would be. Even though the Court has clarified that with the passage of time, the principle of legal certainty will carry increasing weight vis-à-vis the applicant’s right to a tribunal established by law, it has not established a specific time limit in this regard (§252). Exactly which consequences must be attached to the finding of a violation in such cases is, however, left in the middle by the Court. It only stresses here that the finding of a violation in this case may not be taken to mean that all judgments issued by the Icelandic Court of Appeal must be reopened (§314). Rather, the Court leaves it to the Committee of Ministers to supervise the execution of its judgment. In doing so, the Court has passed the hot potato to the Committee and especially to the domestic courts. It will be up to the latter to strike the difficult balance between respect for the right to a tribunal established by law on the one hand and the principle of legal certainty on the other, and to decide what conclusion to draw from this exercise. The Court’s unclear stance in this regard has also been criticized by judge Pinto de Albuquerque in his separate opinion. In general, the effects in practice of the principles set out in the Ástráðsson judgment are thus up to debate and will most likely be clarified further in the years to come when similar cases reach the Court.
As has been noted elsewhere already, the broadened interpretation of the right to a tribunal established by law also puts a new arrow in the quiver of the European courts against the rule of law backsliding that has taken place in Poland and Hungary. In Poland, for example, concerns have been raised about the fact that the judges of the disciplinary chamber of the Supreme Court have been appointed by the newly established Polish Council of the Judiciary (an issue which has already led to a judgment by the ECJ). Similarly, the Polish Constitutional Court has for several years now been composed in part by judges whose appointment was questionable to say the least. As to the latter of the two, it is interesting to point out that there is currently a case pending before the Strasbourg Court that questions whether the Polish Constitutional Court is a tribunal established by law. It should also be pointed out here that the European Court of Justice has recently established a similar interpretation of the right to a tribunal established by law. In the judgment of Review Simpson, that came out earlier this year, the ECJ – with reference to the ordinary Chamber judgment of Ástráðsson – held that an irregularity during the appointment of judges within the judicial system entails an infringement of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the state, in particular the executive, could exercise undue discretion, thereby undermining the integrity of the outcome of the appointment process (§75). These two judgments provide a legal basis for individuals to raise a complaint when they believe that the appointment procedure has been vitiated by undue interference, in particular by the executive or the legislature. Such complaints can then in last instance be brought before the Strasbourg Court, or before the Luxembourg Court via the preliminary ruling procedure. In doing so, the European Courts have placed the judicial appointment procedure within their purview and are in a position to safeguard the legitimacy of such proceedings and, more broadly, the principle of separation of powers. In this sense, these judgments can be seen as another important evolution in the “rule-of-law case law” that both the Strasbourg and Luxembourg Court have been developing in the last couple of years.
Besides the above conclusions, the judgment also raises an entirely novel issue. With the Ástráðsson judgment, the Grand Chamber has unequivocally made clear that the appointment procedure of a judge is a relevant aspect of the right to a tribunal established by law. Yet, one could question whether the principle that was set out in this judgment can be taken one step further still. The question arises whether the irregular removal of a judge can also lead to a violation of this right, even when the replacing judge has been appointed in conformity with all the procedural requirements. It would seem that such an understanding of the right to a tribunal by law would be a fairly logical extension of the principles set out in this judgment and that the considerations by the Court in this judgment – to protect the judiciary from undue interference (§246) – would equally apply in such circumstances. It seems likely that this question will be brought before the Court sooner or later.