TrustHLT/LaCour huggingface dataset:
GR1 (Government): First, there is no doubt that the Court of Appeal, which determined the applicants' proceedings, has a clear and express foundation in Icelandic law as an institution.
GR1 (Government): It was established by a law which came into force in June 2016, and the Court formally came into being on 1 January 2018.
GR1 (Government): Second, this being a new Court, there was no established precedent as to how the appointment process governing proposals to Parliament should proceed, or as to how Parliament should vote on such proposals.
GR1 (Government): See documents 2, 3 and 24.
GR1 (Government): Third, the Minister of Justice, who proposed Judge A.E. for appointment, was not, as a
GR1 (Government): matter of law, bound to propose the first 15 candidates identified by the Evaluation Committee.
GR1 (Government): It was instead open to her to propose to Parliament other individuals who had the requisite qualifications, such as A.E.
GR1 (Government): Furthermore, even the Evaluation Committee has now recognised that its earlier procedure was flawed, because evidenced by documents 65 to 60 cc, it now adopts a practice of nominating more candidates than are needed and allowing the Minister to choose between them.
GR1 (Government): Fourth, in making her proposals, the Minister placed weight on judicial experience and gender balance.
GR1 (Government): These were two objectively legitimate factors endorsed both by the Icelandic Association of Judges and by all party leaders when they made it clear to the Minister that the Committee's original proposals could not pass through Parliament without amendment because of issues of gender equality.
GR1 (Government): See documents 10, 25a to b and 26 to 28.
GR1 (Government): Fifth, there was a complete transparency when the Minister set out her position and the key criteria she was applying in memorandum to Parliament.
GR1 (Government): She engaged in detailed discussions with the Constitutional Supervisory Committee of Parliament and she had guidance from external experts.
GR1 (Government): See documents 28 and 63.
GR1 (Government): Sixth, Judge A.E. was fully qualified for appointment as a judge to the Court.
GR1 (Government): She had an exemplary record as an Associate Judge for more than 10 years, a District Court Judge for 14 years and a Chief Judge of the Labour Court for 7 years.
GR1 (Government): The Independent Evaluation Committee had found her to be fully eligible for appointment and she had more judicial experience than any of the candidates excluded from the Minister's lists.
GR1 (Government): These are documents 4 and 44.
GR1 (Government): Seventh, Parliament retained full oversight and it approved the appointment of all 15 judges proposed, including A.E.
GR1 (Government): Although complaint is now made that this approval was conferred by a single collective vote, this was a procedure proposed by the Speaker of Parliament and approved as lawful by the Independent Secretary of Parliament.
GR1 (Government): It had also been adopted for other matters in the past and it was not opposed by a single MP, whether Government or Opposition, despite their being told of their ability to request individual votes.
GR1 (Government): See documents 2 and 24.
GR1 (Government): Eighth, prior to that vote, it had been made apparent in conversations between the Speaker and all parliamentary groups that all MPs would vote in the same manner on every individual identified in the Minister's proposals, whether in one collective vote or individually.
GR1 (Government): This is document 24.
GR1 (Government): Ninth, Judge A.E. was appointed by the President of Iceland in June 2017 and her appointment
GR1 (Government): took effect with the new court on 1 January 2018.
GR1 (Government): Following her appointment, she became formally and fully vested with the powers of a judge of the Court of Appeal and she became entitled, under Article 61 of the Constitution, to full security of tenure.
GR1 (Government): Tenth, Judge A.E.'s conduct since her appointment has continued to be exemplary.
GR1 (Government): There is no evidence of any public concern about her good faith, professional integrity or competence or of that of any of her colleagues and there is no evidence of any pattern of inappropriate executive interference with judicial appointments in Iceland.
GR1 (Government): Eleventh, the only two defects identified in the appointment process by the domestic courts were of a technical nature.
GR1 (Government): No domestic court has ever suggested that either defect made any difference to A.E.'s
GR1 (Government): appointment.
GR1 (Government): None of the unsuccessful candidates has ever suggested A.E.'s appointment should be invalidated
GR1 (Government): and the Supreme Court has rejected the applicant's central case that A.E.'s appointment should
GR1 (Government): be treated as a nullity, finding the defects to be of no significance in this regard.
GR1 (Government): And finally, the extraordinary allegations of bad faith now made by the applicant are not open to him in circumstances where they were not advanced before the domestic courts and they in any event have no evidential foundation whatever as confirmed by documents 21, 30 and 59 to 64.
GR1 (Government): I turn next to the court's three questions of 20th of December 2019.
GR1 (Government): As to the first question, although the appointment process was novel, it would have been open to Parliament to respond to the motion before it by rejecting certain candidates and by requiring only that some positions be made the subject of subsequent proposals.
GR1 (Government): Parliament would not have been required to repeat the whole procedure regarding all 15 candidates.
GR1 (Government): Not a single MP raised concern at the collective vote procedure and not a single MP, government or opposition opposed the individual judges on the minister's list.
GR1 (Government): The position of the opposition MPs before Parliament was that they had no objection to the merit or qualifications of the candidates proposed.
GR1 (Government): It was simply that more time should be devoted to the process.
GR1 (Government): As to the second question, the minister explained to Parliament that she had considered that 24 candidates were eligible.
GR1 (Government): She presented the 15 candidates which she did have in regard both to the work of the Evaluation Committee and her own judgement based on the issues of judicial experience, a matter she considered of paramount importance and gender balance.
GR1 (Government): These matters were reflected in the minister's letter to Parliament of 29 May 2017 and her memorandum of 30 May 2017, as well as in the observations she made when appearing before the Constitutional Committee.
GR1 (Government): The relevant documents are 8 to 10, 43 and 63.
GR1 (Government): As to the third question, a violation of Article 6 of the Convention does not automatically lead to the reopening of criminal proceedings, but it may provide a foundation for doing so if the conditions set out in Article 228 paragraph 1 of the Code of the Criminal Procedure are met.
GR1 (Government): One example where reopening was granted is provided by a decision of 13 June 2012.
GR1 (Government): Another where relief was refused by a decision of 21 May 2019.
GR1 (Government): The Government is of course ready to provide both decisions if that were to exist.
GR1 (Government): In the present case, as document 21 shows, the applicant's principal claim before the Supreme Court was that the judgement in his case should be overturned and referred back to the Court of Appeal, or as an alternative claim, that he be granted a complete acquittal by reference to his Article 6 arguments.
GR1 (Government): This illustrates again the issues of legal certainty that his arguments may give rise to.
GR1 (Government): Mr President, I now hand over to Mr Otty to address the Government's case on the law.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much. Mr. Otty, you have the floor.
GR2 (Government): Mr. President, members of the court, the government makes three core submissions.
GR2 (Government): The first is that the applicant's case involves a breach of the principle of subsidiarity.
GR2 (Government): It requires this court to disregard the express findings of the Supreme Court without any justification.
GR2 (Government): The primary Supreme Court decision in this regard is that from the applicant's own case dated 24 May 2018, document 20.
GR2 (Government): The Supreme Court made five key findings, all set out at pages 7 to 8 of its judgment.
GR2 (Government): First the fact that Parliament did not hold individual votes was not a defect which carried any weight or significance, or which rendered the appointment of AE null and void.
GR2 (Government): That finding was unsurprising given previous parliamentary practice and the advice of the independent parliamentary secretariat, given the indications to the Speaker in advance that all MPs would vote the same way, whether voting on a collective or individual basis, and given the express opportunity provided to all MPs to ask for individual votes, an option not taken up by any of them.
GR2 (Government): Second the earlier defect in the process adopted by the Minister did not undermine the appointment of AE or her colleagues either.
GR2 (Government): As the Supreme Court stated in terms, as regards the consequences of the said shortcomings in the procedure on behalf of the Minister, what matters is that the appointment of all the 15 judges for indefinite term, which in no instance has been invalidated by a court, was realised upon the signing of their letters of appointment.
GR2 (Government): Third all of the individuals appointed, including AE, were adequately qualified by reference to what the Supreme Court described as their professional experience and legal knowledge.
GR2 (Government): Fourth on appointment AE and her colleagues enjoyed full security of tenure under Article 61 of the Constitution, and none of them could be discharged from office other than by judicial decision.
GR2 (Government): And fifth on appointment AE and her fellow judges acquired judicial powers and obligations.
GR2 (Government): They became obliged to exercise independence in their judicial work and never to act under instructions from others.
GR2 (Government): These five factors together meant that from the Supreme Court's perspective, the Court of Appeal which heard the applicant's case had to be treated as established by law and as having fully respected Article 6.
GR2 (Government): In taking this course, the Supreme Court was also following four earlier decisions.
GR2 (Government): In the two December 2017 judgments, the Court had recorded that all parliamentary groups and MPs had informed the Speaker that they would vote the same way, whether a collective vote or an individual vote were held.
GR2 (Government): Furthermore, at pages 11 to 12 of the December judgments, the Court had expressly treated the parliamentary process as failing to cure the earlier ministerial defect rather than as being a significant defect in its own right.
GR2 (Government): And in the two earlier July 2017 decisions at page 4 of document 16, it was expressly acknowledged by the claimants in those cases and by the Supreme Court that complaints at deficiencies in the minister's decision making did not invalidate the appointment of any of the 15 individuals appointed.
GR2 (Government): So a total of five separate Supreme Court decisions treated AE's appointment as valid and effective as a matter of law.
GR2 (Government): With the inevitable logical consequence that if the procedural defects identified had no implications or significance for AE, they could not do so for the applicant either.
GR2 (Government): That is, we say, an insurmountable obstacle for the applicant's case if subsidiarity is to be respected.
GR2 (Government): In addition, the remoteness of the relationship between the defects and the applicant's own case underscores the lack of merit in the applicant's arguments from the perspective of all relevant ECHR, EU and EFTA case law.
GR2 (Government): All of the Strasbourg case law shows that a central question will be whether the legal defect relied upon in any given case has any relevance to any of the substantive protections of fairness, independence and impartiality in that case.
GR2 (Government): As to the EU and EFTA case law, it concerned the conduct, of course, of EU and EFTA institutions and so in contrast to this case, no issue of subsidiarity arose.
GR2 (Government): It also dealt with a different context of cases where the legal defect went to the heart of issues of impartiality because it related to security of tenure, to mandate, to lack of qualification or because it involved deliberate breach of the applicable legal framework.
GR2 (Government): No such issues are in play here.
GR2 (Government): And finally, of course, the EU case law has now been described as manifestly wrongly decided by the Advocate General in the Simpson case where a far more nuanced approach is suggested and proper regard is given to the principle of legal certainty.
GR2 (Government): Mr. President, the government's second course of mission is that the applicant's complaint
GR2 (Government): is technical in the extreme and lacks any substantive merit, even if issues of subsidiarity are set to one side.
GR2 (Government): Aside from the fact that he pleaded guilty at first instance and now has no complaint whatever at the Court of Appeals' substantive approach in his case, his position becomes even less meritorious when one looks again at the nature of the procedural defects he relies upon.
GR2 (Government): The first defect in time concerned what the Supreme Court described as the absence of data indicating a sufficiently full comparative exercise by the Minister before her partial departure from the approach of the Evaluation Committee.
GR2 (Government): But that takes the applicant nowhere in seeking to establish that his appeal tribunal was not established by law.
GR2 (Government): First, the Constitution protects judges from removal from office once appointed.
GR2 (Government): That meant that as a matter of domestic law, the defect had no effect on the judicial powers or status of AE or her colleagues.
GR2 (Government): Second, the legal obligations AE owed to act in an impartial and independent manner further protected all parties from any risk of executive interference.
GR2 (Government): Third, there is, notwithstanding the submissions you just heard, no evidence here of bad faith on the Minister's part, and the factors she had regard to carried with them no suggestion whatever of executive interference.
GR2 (Government): Fourth, there is no suggestion that AE herself was to blame for what occurred.
GR2 (Government): And fifth, as documents 14 and 21 show, before the domestic courts, even the applicant acknowledged that AE could have been properly proposed by the Minister, even if all aspects of the procedure had been followed entirely correctly.
GR2 (Government): The second defect, relating to the collective vote held by Parliament, also goes nowhere.
GR2 (Government): First this was the first time the appointment process was being followed.
GR2 (Government): Second, as the Secretary General of Parliament confirmed to the President, collective votes were not unprecedented, and this one was considered lawful by the Secretariat.
GR2 (Government): Third all MPs were given the opportunity to seek individual voting.
GR2 (Government): None did.
GR2 (Government): Fourth there is no evidence whatever to support the applicant's extraordinary theory in his written submissions that this manner of voting was part of some kind of conspiracy to force through the appointment of AE.
GR2 (Government): On the contrary, the evidence is that had individual voting occurred, the result would have been the same, and that there were no objections to AE as an individual judge.
GR2 (Government): Before turning to the Government's third and final core submission, it's important to address the Chamber's flagrant breach test directly.
GR2 (Government): In the Chamber, the majority saw the determinative question in these proceedings as being whether there had been a flagrant breach of Icelandic law.
GR2 (Government): That was an approach for which there was no authority or adequate foundation.
GR2 (Government): The material question instead was that raised by the applicant himself at the domestic level at page 4 of his written submissions to the Supreme Court, document 21, whether, by virtue of the defects identified, AE's appointment was to be treated as a nullity, such that she was not the holder of judicial power and her acts were, in the applicant's own words, a dead letter.
GR2 (Government): If AE's appointment was a nullity, then when she came to sit on the applicant's appeal, she would not have been vested with judicial power at all, and the Court could not be said to be established by law.
GR2 (Government): If on the other hand, the appointment remained valid and effective, then the opposite conclusion would follow.
GR2 (Government): The Court, as an institution, had been established by law since January 2018, and all the judges sitting on the applicant's panel were judges formerly vested by law with judicial powers and obligations.
GR2 (Government): In every respect, therefore, the tribunal would be established by law, leaving questions as to fairness, impartiality, and independence to be considered by reference to those expressed terms in Article 6.
GR2 (Government): But even setting all of that to one side, if it were the right question to ask whether there had been a flagrant breach of domestic law, the answer would have to be that the breaches here were not flagrant.
GR2 (Government): First the conclusion of the domestic courts was to the opposite effect.
GR2 (Government): They described the defects as not significant and expressly left open the prospect that precisely the same outcome in terms of AE's appointment might have occurred had all procedures been correctly followed to the letter.
GR2 (Government): Second as the appointment process was unprecedented, any errors later identified were never likely to be easily characterized as flagrant unless bad faith could be shown.
GR2 (Government): Third the minister's criteria were transparent and objectively legitimate, gender equality judicial experience, even if the procedure for their deployment was later found to be flawed.
GR2 (Government): Fourth, a point entirely overlooked by the applicant, even in the earlier proceedings where the defects were eventually identified, the first instance district court had found no breach of the law, so further indicating that any error was less than flagrant.
GR2 (Government): And fifth, and I emphasize this, the domestic courts have made no finding at all of bad faith against the minister and they have made no finding at all of deliberate disregard of domestic law.
GR2 (Government): On the contrary, and as she explained to the domestic courts and she has emphasized in her statement of document 63, the minister took external expert advice in adopting the approach she did.
GR2 (Government): As to the issue of good faith, the grand chamber now also has the positive evidence of Mr.
GR2 (Government): Nielsen at document 64.
GR2 (Government): The allegations against the minister and Mr. Nielsen make no chronological sense and there
GR2 (Government): is a complete absence of material to support the applicant's other allegations against a very wide range of other persons and institutions he now criticizes as party to some form of conspiracy in his written submissions.
GR2 (Government): But the fact that none of those allegations were made at the domestic level also means that the principles of both exhaustion of domestic remedies and subsidiarity prevent them from being raised now.
GR2 (Government): The majority judgment does not engage with any of these points.
GR2 (Government): It addresses the question of flagrant breach at paragraphs 108 to 123, but most of those paragraphs do no more than recite the fact that there were defects of domestic law in the two respects mentioned.
GR2 (Government): That of course does not answer the question whether they are properly to be characterized as flagrant.
GR2 (Government): The majority instead rests the conclusion of flagrant breach on three points.
GR2 (Government): First what is said to be the receipt by the Minister of expert advice in emails sent to her and alleged findings about this by the Supreme Court in its December judgments.
GR2 (Government): Second the Minister's disregard for the danger to the reputation of the other candidates by reference to their exclusion from the nominees presented to Parliament.
GR2 (Government): And third the fact that the judicial appointment system was intended to limit the discretion of the executive and to require the participation of Parliament.
GR2 (Government): None of those three points can withstand scrutiny or begin to justify a finding of flagrant breach of the law in this case.
GR2 (Government): As to expert advice, the majority materially overstates the significance of the emails referred to and it makes a basic error of fact in its description of what the Supreme Court found.
GR2 (Government): The first email, document five, was five lines long and advocated only that the Minister include reference to the competence and career achievements of those she was proposing to include in her letter to Parliament.
GR2 (Government): That is something she did as document nine shows.
GR2 (Government): The second email, document six, contained no definitive legal advice at all and it did not contend that the Minister's proposed course was unlawful.
GR2 (Government): It simply flagged questions that might arise.
GR2 (Government): Additionally the majority also made the basic error of fact of stating that the Supreme Court judgments of December 2017 had made findings about these emails and that it somehow characterized them as expert advice.
GR2 (Government): Those judgments did not in fact refer to the emails at all as document 19 shows.
GR2 (Government): As to the danger to the reputation of other unsuccessful candidates, the majority takes the findings by the domestic courts out of context and it misunderstands them in consequence.
GR2 (Government): Those were findings relevant to whether damages should be awarded by reference to conventional questions of foreseeability and remoteness of loss.
GR2 (Government): They had no relationship at all to any question of deliberate breach of the law and I'm afraid they've been simply misdescribed in the submissions to the court.
GR2 (Government): On the contrary, at page 13 of document 19, the Supreme Court made it explicit that it was not finding that the Minister had deliberately set out to harm anyone's reputation and it made no finding at all of deliberate breach of the law.
GR2 (Government): And as to the third point relied upon by the chamber, the majority of the chamber, the question of limitations on the discretion of the executive and the requirement for parliamentary scrutiny, there is nothing on the facts here to suggest that anything that occurred went against that basic approach, let alone to a standard of flagrancy.
GR2 (Government): As a matter of law, the Minister was not bound by the views of the Evaluation Committee.
GR2 (Government): The Association of Judges had endorsed the relevance of the criteria that she applied.
GR2 (Government): Her additional nominees were all endorsed as eligible and qualified by the committee itself and all of the four candidates added, including AE, had more judicial experience than those four that the Minister replaced.
GR2 (Government): And it was clear that Parliament simply would not vote for the proposals of the committee without some amendment to achieve greater gender balance.
GR2 (Government): And finally, Parliament did then have the opportunity to scrutinise the Minister's proposals, both through the extensive discussion with the Constitutional Committee and in full session.
GR2 (Government): So even if flagrant breach of domestic law were the correct test to apply, it could never be satisfied on the facts of this case.