January 25
2021
Dolores Utrilla
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1st December 2020
Human Rights Institutional law Justice & Litigation

Grand Chamber of the ECtHR: appointment of some of the members of the new Icelandic Court of Appeal breaches right to a tribunal established by law

Today, the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its judgment in Guðmundur Andri Ástráðsson v. Iceland, ruling that the irregularities in the appointment of one of the judges of the new Icelandic Court of Appeal (Landsréttur), which upheld the applicant’s conviction for road traffic offences, amounted to a breach to the right to a tribunal established by law under Article 6(1) of the European Convention on Human Rights (ECHR).

Today’s judgment makes it clear that the right to a ‘tribunal established by law’ should not be construed so broadly that any irregularity in a judicial appointment procedure would risk compromising that right. The ECtHR formulated a three-step test to determine whether irregularities in a judicial appointment procedure are of such gravity as to entail a violation of Article 6(1) ECHR. Firstly, a manifest breach of domestic law must be established. Secondly, that breach must pertain to any fundamental rule of the judicial appointment procedure. Lastly, there must have been a failure to effectively review the alleged breach and failure by the domestic courts to remedy it.

The ECtHR concluded that these three criteria were fulfilled in the case at hand. The Strasbourg-based court noted that the Icelandic legal framework concerning judicial appointments has been amended over the past few decades in order to limit ministerial discretion in the appointments process, thereby strengthening the independence of the judiciary. However, it agreed with the Icelandic Supreme Court that this legal framework was breached when four of the new Court of Appeal judges were appointed, particularly because the Minister of Justice disregarded a fundamental procedural rule that obliged her to base her decision to depart from the Evaluation Committee’s proposal on sufficient investigation and assessment. The ECtHR further noted that the legal guarantees available to remedy this breach (namely the parliamentary procedure and the ultimate safeguard of judicial review before domestic courts) proved ineffective.

The judgment is available here.

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