TrustHLT/LaCour huggingface dataset:
GR2 (Government): For a convention violation to be flagrant, as the Court is well aware, it must involve the complete destruction of the essence of the right.
GR2 (Government): That is simply not this case.
GR2 (Government): I turn finally then to the Government's third core submission of law.
GR2 (Government): It is that far from safeguarding the rule of law and the principle of judicial independence, the applicant's approach fundamentally weakens both concepts.
GR2 (Government): On the applicant's case, any clear defect in an appointment process, however historic in nature, can place the position of an individual judge in jeopardy.
GR2 (Government): Even where the process under scrutiny was novel, even where all concerned in the process have acted in good faith, even where the criteria applied are objectively reasonable ones, even where the judge themselves had no involvement whatever in any such defect, and even where the judge is manifestly qualified.
GR2 (Government): That approach is irreconcilable with the need for judicial security of tenure, both as a matter of basic principle and as reflected in Article 61 of the Constitution.
GR2 (Government): And it is striking, we say, that the majority judgment's reasoning contains no reference at all to this principle or to Article 61 of the Constitution.
GR2 (Government): But the serious policy issues go even further than this.
GR2 (Government): The rule of law also depends, of course, on legal certainty, and on parties and on society at large understanding that decisions made by courts are final in nature.
GR2 (Government): On the applicant's approach, there can never be such certainty, as at any point in time a defect in an appointment process might be identified and alleged to be flagrant.
GR2 (Government): That could lead not only to the effective removal from office of a judge who had done nothing wrong, but also to the invalidation of every decision that judge had participated in, and even potentially to every decision made by other judges appointed at the same time as part of the same process.
GR2 (Government): That would undermine the core values of the Convention and the rule of law.
GR2 (Government): And again, it is notable, as with the principle of judicial security of tenure, that the majority judgment fails even to refer to the principle of legal certainty, let alone to consider the implications of its reasoning for that principle.
GR2 (Government): It should also be emphasized, Mr. President, that this case could not be more different
GR2 (Government): from the kind of situation addressed by the interventions before the Court.
GR2 (Government): In contrast to the alleged situation in Poland or Georgia, the approach of the Icelandic authorities, as evidenced in the present case, poses no conceivable threat to judicial independence.
GR2 (Government): On the contrary, it supports that independence by insisting on judicial security of tenure, by insisting on proper constitutional protections for the status of judges, and by protecting judges from unmeritorious attacks on their status based upon technical errors for which others have been inadvertently responsible.
GR2 (Government): Now it may well be that in the future, whether in relation to Poland, Georgia, or another state, this Court will be called upon to assess the implications of judicial appointment processes or disciplinary measures, where questions of fairness, independence, and impartiality genuinely arise because, for example, of a lack of qualification on the part of those appointed, or because of a lack of adequate security of tenure, or because of clearly evidenced politicization of the process, or deliberate breaches of the law.
GR2 (Government): But that is emphatically not this case.
GR2 (Government): And in truth, the central principles of law set out in all of the four interventions before the Court are inconsistent with the approach of the majority judgment.
GR2 (Government): The core test that is proposed in the submissions of the government of Poland, the Helsinki Foundation, and the public defender of Georgia, is that a defect in appointment which all the circumstances of the case show to have adverse implications for impartiality and independence, or which affect the legal powers of the judge concerned, may lead to a finding of a violation of Article 6.
GR2 (Government): But if, as here, no such implications arise, and the defects are of a technical nature with no discernible impact on either outcome of appointment, judicial power or tenure, trial process, and no objective indication of politicized intent, then no violation should be found.
GR2 (Government): Mr. President, to accept the applicants' arguments would be, with respect, to bring the convention
GR2 (Government): system of oversight into disrepute, and it would, importantly, render the convention of far less value for those cases which may well arise in the future where the urgent intervention of the Court may be needed.
GR2 (Government): The endorsement of a test as general and vague as that contended for by the applicant would be dangerous enough as a matter of principle.
GR2 (Government): But a finding that it was satisfied in a case as technical as the applicants' would also create precisely the lack of legal certainty, and to use his words, the legal chaos that the Polish Commissioner for Human Rights warns against in his intervention.
GR2 (Government): It would be to open the Pandora's box described in the powerful dissenting opinion of Judge Lemons and Judge Gritko before the Chamber.
GR2 (Government): Mr. President, Members of the Court, for all those reasons and those set out in the detailed
GR2 (Government): written submissions, the Grand Chamber is invited to dismiss the applicants' complaints.
Linos-Alexandre Sicilianos (JudgeP): Thank you for your submissions.
Linos-Alexandre Sicilianos (JudgeP): I now invite the judges of the Grand Chamber wishing to do so to put their questions to the parties.
Linos-Alexandre Sicilianos (JudgeP): Judge Pere Pastor Vilanova, please.
Pere Pastor Vilanova (Judge): J'ai trois questions à poser aux partis, une au gouvernement, une au requérant et, finalement, une troisième commune aux deux partis.
Pere Pastor Vilanova (Judge): La première, donc, est dirigée au gouvernement.
Pere Pastor Vilanova (Judge): Combien d'affaires similaires à celles du requérant sont actuellement pendantes devant les juridictions islandaises?
Pere Pastor Vilanova (Judge): Je vous demande un chiffre approximatif, bien entendu.
Pere Pastor Vilanova (Judge): Une question, donc, dirigée au requérant.
Pere Pastor Vilanova (Judge): Devant les juridictions nationales, le requérant a demandé à être rejugé.
Pere Pastor Vilanova (Judge): Il me semble que cette prétention n'a pas été formulée devant la Chambre.
Pere Pastor Vilanova (Judge): Par conséquent, je voudrais savoir si le requérant demande à la Grande Chambre à être rejugé en Islande, en plus, bien entendu, de la réparation pécuniaire de 5 000 euros qu'il formule au titre de l'article 41 de la Convention.
Pere Pastor Vilanova (Judge): Et enfin, une dernière question commune aux deux partis.
Pere Pastor Vilanova (Judge): À l'époque des faits de l'espèce, quels étaient les liens entre la ministre de la Justice, Mme Andersen, la police et les procureurs?
Linos-Alexandre Sicilianos (JudgeP): Merci beaucoup, le juge Paulo Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): Thank you, President. I have three questions. One for the applicant, one for the government,
Paulo Pinto de Albuquerque (Judge): and the third one for both parties. Now, the applicant accuses the Minister of Justice
Paulo Pinto de Albuquerque (Judge): of this most abject, backstage, horse-trading deal between members of the same party. There
Paulo Pinto de Albuquerque (Judge): would have been a deal between the former Minister of Justice and candidate BN to Reykjavik, according to which Judge AE, who is the wife of BN, would go to the Court of Appeal if BN would step down in favor of the Minister. So there is, in your view, clear quid pro
Paulo Pinto de Albuquerque (Judge): quo, a deal, and personal political gain of the former Minister of Justice. And you even
Paulo Pinto de Albuquerque (Judge): said that there is bad faith bordering intent. My question is, was there any criminal investigation
Paulo Pinto de Albuquerque (Judge): or prosecution launched against the former Minister of Justice on this basis, alleged abuse of power or corruption? You have mentioned the deficiencies of the Supreme Court's oversight
Paulo Pinto de Albuquerque (Judge): over this entire procedure. You have pointed out the fact that the Supreme Court did not
Paulo Pinto de Albuquerque (Judge): address this argument in its judgment of May 2018. The Supreme Court said there was no
Paulo Pinto de Albuquerque (Judge): nullity, no major defect in the appointment procedure, confirming its judgment of December 2017. My question is the following. Is it your view that the Supreme Court should have
Paulo Pinto de Albuquerque (Judge): annulled the Minister's decision in its judgment of December 2017? I would like to recall the
Paulo Pinto de Albuquerque (Judge): passage of the Supreme Court's decision with regard to the request of annulment of the Minister's decision. The Supreme Court said the following, and I'm quoting the Supreme
Paulo Pinto de Albuquerque (Judge): Court, it is not in the power of the courts to decide who should be appointed to the office of judge of the Court of Appeal. Bearing this in mind and having received the appellant's
Paulo Pinto de Albuquerque (Judge): explanation as to the nature of their claim, which will serve as a basis here, the appellants have not demonstrated that they have a lawful interest in obtaining a court ruling on the invalidity of decisions by the Minister of Justice. This is the decision of the Supreme
Paulo Pinto de Albuquerque (Judge): Court upholding the district court's judgments insofar as they concern the request of annulment of the Minister's decision. Is it your position that this is wrong in law and the Supreme
Paulo Pinto de Albuquerque (Judge): Court did not exercise full jurisdiction over the Minister's decision and should have done so? With regard to the government, after the delivery of the chamber judgment, the Minister
Paulo Pinto de Albuquerque (Judge): of Justice resigned from office. Why so? If the judgment of the chamber is wrong, there
Paulo Pinto de Albuquerque (Judge): is no reason to resign. The only reason to resign is if the judgment of the chamber is
Paulo Pinto de Albuquerque (Judge): right. But then the question might be raised, why is the government appealing the decision
Paulo Pinto de Albuquerque (Judge): of the chamber if it is right? Final question addressed to both parties. In the criminal
Paulo Pinto de Albuquerque (Judge): proceedings against the applicant, the Court of Appeal rejected the applicant's motion for AE to withdraw from his case. But it decided so with the participation of AE. AE intervened
Paulo Pinto de Albuquerque (Judge): in the judgment itself where the impartiality was at stake. Would you comment on this? Thank
Paulo Pinto de Albuquerque (Judge): you very much.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Judge Georges Ravarani.
Georges Ravarani (Judge): Thank you, Mr. President.
Georges Ravarani (Judge): I have a legal question to both parties.
Georges Ravarani (Judge): It's true that during their pleadings they touched upon it indirectly, but I think for the sake of clarity I will ask it again.
Georges Ravarani (Judge): Do you think that the requirements for a fair hearing, establishment by law, independence, and impartiality are self-standing requirements or if they are interrelated?
Georges Ravarani (Judge): And if interrelated, is there a hierarchy between them?
Georges Ravarani (Judge): Thank you.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Judge Jon Fridrik Kjølbro.
Jon Fridrik Kjølbro (Judge): I do have one question, which at the same time is addressed to both parties.
Jon Fridrik Kjølbro (Judge): And the question is concerned the link between a possible finding of a violation of Article VI established by law and the possible consequences to be drawn from such a finding, meaning the link between Article VI and Article 46 of the convention.
Jon Fridrik Kjølbro (Judge): The applicant is arguing that there has been a violation of Article VI and that there has to be a reopening.
Jon Fridrik Kjølbro (Judge): The government, on the other hand, is arguing there has been no violation of Article VI and obviously no need to reopen.
Jon Fridrik Kjølbro (Judge): My question is more in general.
Jon Fridrik Kjølbro (Judge): To what extent, and could the parties elaborate on, to what extent will a finding of a violation of Article VI necessitate a reopening or whether it would necessitate the court to indicate reopening?
Jon Fridrik Kjølbro (Judge): Or in other words, which kinds of violations of Article VI would necessitate the reopening?
Jon Fridrik Kjølbro (Judge): Is the threshold under Article VI, the threshold for finding a violation of Article VI established by law, is it necessarily the same threshold which the court should apply under Article 46 when deciding whether or not to indicate as an individual measure the reopening of the procedures?
Jon Fridrik Kjølbro (Judge): So if both parties could clarify their view on that question.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much.
Linos-Alexandre Sicilianos (JudgeP): Judge, Síofra O’Leary, please.
Síofra O’Leary (Judge): I have three questions.
Síofra O’Leary (Judge): I'd like to follow up and repeat the question asked by my colleague, Judge Ravarani, concerning the interrelationship in Article 6.1
Síofra O’Leary (Judge): fair trial assessments by this court of the criteria related to establishment by law, independence, and impartiality.
Síofra O’Leary (Judge): And I repeat the question not for the sake of it, but rather to leave both parties in no doubt that the bench wants an answer to this question.
Síofra O’Leary (Judge): My second question is also addressed to both parties, but particularly to the applicant.
Síofra O’Leary (Judge): Both parties have examined in detail and in general terms questions relating to the irregularities recognized by the Icelandic Supreme Court in the appointment of court of appeal judges.
Síofra O’Leary (Judge): But I'd like to ask both parties to return their focus to the applicant's individual case.
Síofra O’Leary (Judge): The respondent government addressed this in their submissions, but in my view, the applicant could address it a little bit more.
Síofra O’Leary (Judge): According to the constant case law of this court, our primary concern in examining an Article 6.1 complaint
Síofra O’Leary (Judge): is, and I quote, to evaluate the overall fairness of the applicant's criminal proceedings.
Síofra O’Leary (Judge): So could both parties please tell us or repeat how the criminal proceedings involving the applicant heard at district court level, at which stage the applicant pleaded guilty, heard on appeal by the court of appeal, and then again at Supreme Court level.
Síofra O’Leary (Judge): In what way were these proceedings unfair due to the irregular appointment of four out of 15 court of appeal judges?
Síofra O’Leary (Judge): And of course, here I'm asking you not just to address questions as of consequence, but rather questions of cause and effect.
Síofra O’Leary (Judge): And my third question is a follow-on question from Judge Pinto de Albuquerque, and I apologize to him in advance if I've misunderstood his question, and I apologize in particular to both parties if I misunderstand Icelandic law, but I'm not an Icelandic judge.
Síofra O’Leary (Judge): And the question relates to Judge Pinto de Albuquerque's question about the Supreme Court's jurisdiction to annul the ministerial decision.
Síofra O’Leary (Judge): Now, what I haven't understood is whether he is referring to the Supreme Court decisions in the damages cases brought by the candidates whose names had been removed from the list, or to the Supreme Court judgment in the applicant's case.
Síofra O’Leary (Judge): But in either or both cases under Icelandic law, did the Supreme Court have any jurisdiction whatsoever in the context of those proceedings to annul the ministerial decision?
Síofra O’Leary (Judge): And particularly, did the Supreme Court have jurisdiction to act in that way in the context of the applicant's case, which was, of course, an appeal from the Court of Appeal and on from the District Court concerning the commission of traffic offenses driving under the influence of narcotics and without a license?
Linos-Alexandre Sicilianos (JudgeP): Judge Egidijus Kūris, please.
Egidijus Kūris (Judge): I have some factual questions, first of all, to the representatives of the government, but I invite also the representative of the applicant to comment if he wishes so.
Egidijus Kūris (Judge): My first question refers to the 15 candidates on their lists as amended by the minister, as exchanged by the minister.
Egidijus Kūris (Judge): We see that in that list, we had candidates number 7, 11, 12, and 14 removed and replaced by candidates numbers 17, 18, 23, and the 30th.
Egidijus Kūris (Judge): I would like to understand the criteria.
Egidijus Kūris (Judge): Why these numbers?
Egidijus Kūris (Judge): Why wasn't it the 12, the 13, the 14, and the 15, and then the 16, 17, and so on?
Egidijus Kūris (Judge): Was there any logic in that, especially in the light of, my question is in the light of the applicant's representative remark that a female judge, who was numbered 22, was not selected to the new composition, and she was not selected to the new composition.
Egidijus Kūris (Judge): But a female judge, who was number 30, was selected.
Egidijus Kūris (Judge): So was there any logic?
Egidijus Kūris (Judge): Were there any objective criteria or justifiable criteria which the minister employed when changing the list of candidates?
Egidijus Kūris (Judge): That's my one question.
Egidijus Kūris (Judge): My other question relates to the statement of facts.
Egidijus Kūris (Judge): And in the statement of facts, we have a letter of the chairman of the evaluation committee who provided that letter to the Minister of Justice on the 28th of May, 2017.
Egidijus Kūris (Judge): That is one day before the amended or modified list of candidates was presented to the parliament on the eve of that presentation.
Egidijus Kūris (Judge): And in that letter, the chairman of the committee, of the evaluation committee, objected to the changing of weightings and, by extension, to the recomposition of the group of candidates which was already in place.
Egidijus Kūris (Judge): And I just quote that, according to the chairman, changing the weightings after the composition of the group of candidates for the benefit of particular candidates and to the disadvantage of others had to be avoided.
Egidijus Kūris (Judge): I put emphasis on the word particular, benefit of particular candidates.
Egidijus Kūris (Judge): Could you please shed some light on what was meant by the word particular candidates?
Egidijus Kūris (Judge): The chairman of the committee used plural.
Egidijus Kūris (Judge): What was meant by particular candidates?
Egidijus Kūris (Judge): Or at least what the minister from that letter could understand or ought to have understood by the word particular?
Egidijus Kūris (Judge): And my third question, also a factual question, will be very straightforward.
Egidijus Kūris (Judge): And that was partly prompted by Judge Paulo Pinto de Albuquerque's question about this alleged swap of services or horse trading.
Egidijus Kūris (Judge): He used the term horse trading.
Egidijus Kūris (Judge): The chairman of the parliamentary committee giving his place on the party's constituency list to the minister just not long after the nomination of an appointment of his wife to that judicial position.
Egidijus Kūris (Judge): My question would be very straightforward, maybe unusually straightforward.
Egidijus Kūris (Judge): But could you please tell whether that was a coincidence, a lack of judgment, or a quid pro quo?
Egidijus Kūris (Judge): Plainly, thank you.
Linos-Alexandre Sicilianos (JudgeP): Judge Turković, please.
Ksenija Turković (Judge): I would just like to expand a little bit on the question that was asked by Judge Kjølbro.
Ksenija Turković (Judge): And this is the relationship between Article 6 and finding a violation and the consequences.
Ksenija Turković (Judge): And not just the reopening, because it seems to me that we have something intermediary, and this is annulment of the judgment.
Ksenija Turković (Judge): So are you pleading for the automatic annulment of the judgment?
Ksenija Turković (Judge): Or there could be instances where automatic and under which conditions automatic annulment then would not be required.
Ksenija Turković (Judge): And what is then the consequence of that for the reopening?
Ksenija Turković (Judge): In other words, could reopening be mandated by the court?
Ksenija Turković (Judge): And or at the domestic level, could reopening be requested not only by the applicant, but by the government?
Ksenija Turković (Judge): Because in a case like this, the applicant might not have an incentive to ask for the reopening.
Ksenija Turković (Judge): At the domestic level, annulment of the judgment, how it is connected to "ne bis in idem", and how it is connected to statute of limitation.
Ksenija Turković (Judge): Would in this particular case statute of limitation be there if the judgment would be annulled?
Linos-Alexandre Sicilianos (JudgeP): The court will now withdraw for 30 minutes, following which the parties will be able to submit brief observations in reply to each other's submissions and reply to questions from the judges.
Linos-Alexandre Sicilianos (JudgeP): The hearing is suspended.
Linos-Alexandre Sicilianos (JudgeP): The hearing is resumed.
Linos-Alexandre Sicilianos (JudgeP): I call Mr. Vilhjálmsson.
AP1 (Applicant): to start with, I would like to ask for the court's permission to answer all its questions in writing, as allowed under the rules of the court.
AP1 (Applicant): Regarding the answers to the government's speech, I would like to start with the alleged changes in the opinions of the evaluation committee.
AP1 (Applicant): On behalf of the Icelandic state, it has been argued that the evaluation committee on judicial appointments has, after the facts of this case occurred, based its evaluation of judicial candidates on different grounds than it applied in the present case.
AP1 (Applicant): Reference has been made in this respect to the committee's opinion of 9 December 2019 in the appointment process for a vacant Supreme Court position.
AP1 (Applicant): This argument must be understood to allege that, by this, the committee's evaluation methods in the present case and its conclusions have been stricken down, and consequently that the Minister of Justice should be seen as justified in proposing her own list of candidates.
AP1 (Applicant): In the view of the applicant, this claim is completely without merit.
AP1 (Applicant): The law changes in 2010 limited the influence of the Minister of Justice in the appointment process and instead placed the authority mainly in the hands of a professional evaluation committee.
AP1 (Applicant): In the opinion of the special evaluation committee on 9 December 2019, the conclusion was reached that three of the candidates were deemed most qualified.
AP1 (Applicant): The evaluation committee found those three most qualified of the candidates and all equally qualified for the post.
AP1 (Applicant): In this respect, it must be stressed that in both evaluations, the one for the appeal court in 2017, that this case concerns, and in this recent one, in December 2019, for the Supreme Court, the committee acted completely in accordance with relevant Icelandic law and rules on its work.
AP1 (Applicant): In both cases, it was also anonymous in its findings.
AP1 (Applicant): It is therefore hard to see how a differently based evaluation by the committee in an entirely different appointment process with entirely different circumstances can be said to have any meaning for the present case.