TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Here the applicant stresses the following.
AP1 (Applicant): Just for argument's sake, even if any criticism could be aimed at the evaluation committee on the grounds of compulsion of those two evaluations, that would be an entirely separate matter from the core facts and issues of the present case.
AP1 (Applicant): It could firstly on no account make less significant, let alone justify, the former Minister of Justice's own flagrant violations in the appeal court appointment process of spring 2017.
AP1 (Applicant): And secondly, the same would naturally apply for the serious violations by Parliament in the same process.
AP1 (Applicant): I will now turn to the consequences of the chamber judgment for the member states or the opening of the so-called Pantherus box.
AP1 (Applicant): In my arguments today, I have discussed that the established by law principle of Article 6, paragraph 1, is not only a formal condition for the legality of a tribunal, probably more importantly, it also represents a material requirement fully applicable to the process of judicial appointments.
AP1 (Applicant): Now, what if this provision was to be interpreted as only having this formal dimension and therefore no material requirements?
AP1 (Applicant): What would happen then?
AP1 (Applicant): In the applicant's view, it is very likely that such a conclusion could have a grave and disturbing consequences.
AP1 (Applicant): Namely, as recent events in Europe show, some states have taken deliberate action to harm the independence and impartiality of their justice system.
AP1 (Applicant): A conclusion to interpret this principle strictly formally would afford such states opportunity to operate and cause lasting harm to human rights in those states.
AP1 (Applicant): In this context, some well-known examples can be pointed out from Poland, Turkey, and now Iceland.
AP1 (Applicant): It must be stressed again, therefore this case carries great importance in this respect.
AP1 (Applicant): With reference to arguments made today on behalf of the Icelandic state, there is also reason to address what consequences it could possibly have if the Chamber judgment would be upheld.
AP1 (Applicant): The consequence will simply be that the Member State will be forced to follow and uphold their own legislation on the judicial system.
AP1 (Applicant): The applicant can find no fault with that consequence.
AP1 (Applicant): He also finds it hard to understand why anyone else could.
AP1 (Applicant): The only thing that will happen are good things.
AP1 (Applicant): Justice will be served here today, and justice will hopefully prevail elsewhere in the future.
AP1 (Applicant): Mr President, members of the court, the applicant rests.
Linos-Alexandre Sicilianos (JudgeP): I call now Mrs. Þorsteinsdóttir.
GR2 (Government): Mr. President, with your leave, I'll take the floor first.
GR2 (Government): Mr. President, some very brief reply submissions
GR2 (Government): on the law and the facts, as contended for by the applicant first.
GR2 (Government): And then I'll endeavor to answer the court's questions.
GR2 (Government): If the applicant is given permission to answer in writing, we would also seek the same indulgence.
GR2 (Government): But I'll seek to answer the questions as best I can now.
GR2 (Government): So reply submissions first, the law.
GR2 (Government): It is striking, we say, that the applicant has failed to engage with any of the case law cited by the grand chamber's questions to the parties, all of which, and this goes to one of the questions raised by both Judge Ravarani and Judge O'Leary, all of which, properly understood, supports the government's position by emphasizing the importance of a relationship of proximity between any legal defect identified and the applicant's individual case, and by making it clear that technical defects with no implications for independence or impartiality or fairness cannot provide the foundation for a finding of a violation of Article VI under any of its terms.
GR2 (Government): So far as the law is concerned, the applicant has also referred again, as he did in his January submissions, to the Simpson case.
GR2 (Government): As I've said, correctly understood, the opinion of Advocate General Sharpstone fundamentally weakens the applicant's case.
GR2 (Government): At paragraph 47, 57, and 58, it criticizes the earlier general court case of FV, heavily relied upon by the applicant before the majority, and suggests it is wrongly decided and it has fundamentally failed to have regard to the critical requirements of legal certainty, even failing to mention the concept.
GR2 (Government): Precisely the same criticism can, with respect, be made of the majority judgment of the chamber here.
GR2 (Government): Its reasoning, too, contains no reference at all to that doctrine or to judicial security of tenure.
GR2 (Government): Paragraph 65 and 85 of Advocate General Sharpton's opinion state in terms that even a deliberate breach of domestic rules on the appointment of a judge, as occurred in FV's case, will not suffice for a finding that the tribunal is not established by law.
GR2 (Government): Paragraphs 98 to 104 identify a far more nuanced approach evident from the domestic case law of the Czech Republic, of France, of Germany, of Spain, and the United Kingdom, all of it showing the fundamental importance of legal certainty.
GR2 (Government): The one example of a breach of an appointment procedure that Advocate General Sharpton identifies as justifying a conclusion that a tribunal is not established by law is that set out at paragraph 107 of her opinion, where a procedure has been deliberately manipulated by political leaders in order to secure the appointment, as a judge, of a supporter of theirs who does not have any legal qualification required, but who could be relied upon to sentence government opponents to life imprisonment.
GR2 (Government): Those are the words of Advocate General Sharpton as to the kind of scenario where a finding of not established by law could be justified.
GR2 (Government): It is quite obviously a million miles from this case.
GR2 (Government): Before leaving Simpson, I should emphasize that it also proceeds on the basis of a flawed understanding of the facts of this case.
GR2 (Government): It wrongly understood the evidence in this case to show a deliberate breach of the law.
GR2 (Government): The evidence does not show that.
GR2 (Government): The domestic judgments have not found that.
GR2 (Government): And it wrongly overlooked the significance of the voting in Parliament being the same, whether it was collective or individual, the voting in Parliament not being strictly on party lines, but involving votes for, against, and abstentions, the independent advice of the Secretariat to Parliament as to the lawfulness of what occurred, and the unprecedented nature of the process.
GR2 (Government): Turning to what the applicant said about the facts, Mr. President, I apologize for repeating this,
GR2 (Government): but it could not be more important.
GR2 (Government): There is nothing in the domestic judgments in this case to show a deliberate disregard of the law.
GR2 (Government): It is simply a mischaracterization of the debate before the domestic courts and the findings of the domestic courts to suggest otherwise.
GR2 (Government): And it is quite wrong for that submission to be repeated.
GR2 (Government): Turning, if I may, then, to attempt to engage with the court's questions, the first question came, Mr. President, from —
GR2 (Government): first questions came from Judge Villanova.
GR2 (Government): And the question was, what is the number of similar cases pending in Iceland?
GR2 (Government): It's not possible today to give a definitive answer to that question, but it clearly goes to the potential implications in terms of legal certainty of the Chamber's judgment.
GR2 (Government): The potential implications would extend to every decision taken by AE or her colleagues between January 2018 and March 2019, when, in response to the Chamber judgment, the decision was taken that AE and the three additional colleagues appointed with her, not proposed first time round by the Evaluation Committee, should no longer sit on the Court of Appeal.
GR2 (Government): So every decision taken in that 15-month period involving those judges would be susceptible to challenge if the applicants' complaints are right.
GR2 (Government): The second question for us, I think, from Judge Villanova was — or for both parties, rather — was, what were the links between the minister and the police and the prosecution?
GR2 (Government): And we understand this question, again, to go to a recurring theme in the Court's questions about whether the applicant here really has any substantive complaint of unfairness.
GR2 (Government): And the answer to that question is, he has no substantive complaint as to unfairness.
GR2 (Government): The Constitution in Iceland is quite clear that the police and the prosecution are obliged to act independently.
GR2 (Government): And there is no question here of whatever defects the minister was responsible for, tainting the independent judgment of the police and the prosecution and tainting the substance of the allegations against this applicant, who, after all, was, as the evidence shows, a repeat offender who pleaded guilty at the district court and has no substantive complaint at the way the Court of Appeal actually handled his case.
GR2 (Government): Turning then to Judge Pinto's questions, the first question, I think, was whether there had been any criminal investigation into the minister's conduct, given the way the applicant now put his case before this court.
GR2 (Government): There has been no investigation, and there has been no criminal complaint, whether by the applicant or his lawyer or otherwise.
GR2 (Government): And this again goes to a recurring question in some of the court's questions.
GR2 (Government): There was no quid pro quo here.
GR2 (Government): The applicant's case is littered with unevidenced conspiracy theory.
GR2 (Government): Documents 63 and 64, in particular, the statements before the Grand Chamber from the former minister and from Mr. Nielsen,
GR2 (Government): who are said to be at the heart of this somewhat outlandish conspiracy theory, explaining why the applicant's allegations make no chronological sense whatever.
GR2 (Government): The theory of the applicant's case was that in May 2017, there was some horse trading, some backstairs deal, that there will be a resignation to allow the minister to stand in a particular way at the election.
GR2 (Government): In May 2017, the next election scheduled was for 2020.
GR2 (Government): It just so happened that as events would unfold in Iceland, an entirely different course was taken, and by the autumn, elections were being held.
GR2 (Government): But that was neither anticipated nor capable of being anticipated at the material time in May 2017.
GR2 (Government): And that chronological sequence, striking at the centerpiece of the entire conspiracy theory advanced by the applicant, we respectfully submit is compelling.
GR2 (Government): There's the further point that this direct allegation of actual bad faith, both against the former minister and embracing in the written submissions the entirety of the Supreme Court, the entirety of Parliament, the Speaker of Parliament, the Secretariat of Parliament, none of it appeared in the submissions before the domestic courts.
GR2 (Government): And it will be an extraordinary step, we say, for the applicant to be allowed to maintain unevidenced allegations of that kind now.
GR2 (Government): The second question raised by Judge Pinto went to the jurisdiction of the Supreme Court, which was also raised by Judge O'Leary.
GR2 (Government): And I'll come back to that, if I may, when dealing with her questions.
GR2 (Government): Judge Pinto's third question was, why did the minister resign?
GR2 (Government): If the chamber judgment was wrong, as the government now says, then there was no reason for her to resign.
GR2 (Government): The minister has actually given specific...
GR2 (Government): The former minister has actually given specific instructions on that point.
GR2 (Government): She resigned because she felt it appropriate that any decision as to whether or not to refer the chamber's judgment to the Grand Chamber should be taken and be seen to be taken completely independently.
GR2 (Government): And that it could never be said that the decision to seek a referral to the Grand Chamber was to serve the personal interest of the minister.
GR2 (Government): Her resignation carried with it no acceptance, whatever, that the outcome with respect of the chamber judgment was correct.
GR2 (Government): And that's abundantly clear from her statement now before the Grand Chamber at Document 63.
GR2 (Government): That is, in fact, what happened.
GR2 (Government): An independent decision was then taken by the government of Iceland to seek a referral for precisely the reasons we have been submitting today.
GR2 (Government): With great respect, we submit that the chamber judgment and the applicant's case does serious damage to the rule of law, not just in Iceland, but elsewhere.
GR2 (Government): And the importance of the principles of legal certainty and judicial security of tenure hardly needs to be stressed.
GR2 (Government): Judge Pinto's final question was to ask whether, as I understood it, whether there was anything irregular or inappropriate in Judge A.E.
GR2 (Government): participating in the decision on the recusal application in the applicant's case.
GR2 (Government): The answer is there is nothing inappropriate in that course.
GR2 (Government): It is entirely conventional right across the Council of Europe where recusal applications are available for that recusal application to be made to the judge himself or herself, and for the judge himself or herself to make that decision, subject, of course, to the supervisory oversight of an appellate court, as was available in this case the Supreme Court.
GR2 (Government): So nothing inappropriate at all, and entirely correct that she did so.
GR2 (Government): And on the facts here, the question in any recusal application is, do the objective facts here suggest that there is, to the objective bystander, any reason to doubt the independence and impartiality of the judge who is about to decide upon the case?
GR2 (Government): And for all the reasons I emphasized in my opening submissions relating to her preeminent qualifications, her distinguished record as a judge, her exemplary record since appointment, there is no basis upon which an objective bystander could have reached that conclusion.
GR2 (Government): Judge Ravarani, in a question also raised by Judge O'Leary, raised an important question of legal principle as to the interrelationship between the requirement in Article VI for a tribunal to be established by law and the discrete wording relating to fairness, independence, and impartiality.
GR2 (Government): And this is, to some extent, as I said earlier, a matter I already commented upon in my reply submissions to the applicant's case and to his failure to engage with the Strasbourg case law.
GR2 (Government): The concepts are, to some extent, interrelated.
GR2 (Government): The overall target is clear.
GR2 (Government): Individuals' rights are to be protected in a fair manner.
GR2 (Government): That's what matters.
GR2 (Government): That's what's at the core of Article VI.
GR2 (Government): And if you have a technical defect which shows, strictly speaking, as in this case, that there has been a departure from some provision of Icelandic law, it cannot be the case that that is sufficient on its own to show that the tribunal is not established by law or that the judge is not bested with legal powers.
GR2 (Government): There has to be a common sense application of the context.
GR2 (Government): And a common sense application of the context requires consideration of what implications that legal defect actually has in the particular case for the independence, impartiality, and fairness of the process faced by the individual.
GR2 (Government): And on the facts here, there are no such implications.
GR2 (Government): Now, different, of course, in a situation of the kind alleged in relation to Poland and Georgia in the interventions, you might have a situation where, as a matter of black letter law, there could be no complaint about the domestic law which had established a court and no complaint about the domestic law which had led to a particular judge being put in position.
GR2 (Government): But if the evidence and all the circumstances of the case showed that the law had been explicitly manipulated for political partisan purposes, then that might well lead to a finding, both that there had been a lack of independence and impartiality and that there had been a failure to have a court established by law.
GR2 (Government): So they do interrelate.
GR2 (Government): And once one understands that interrelationship and looks at the substance, it only leads to the conclusion that the applicant's case fails.
GR2 (Government): Judge Kelbro asked what kind of violation of Article VI could lead to a reopening of the case having regard to Article 46 of the Convention.
GR2 (Government): And this question about the consequences of the chamber judgment embraces both the Strasbourg level of Article VI and Article 46, of course, and the domestic level of what are the implications of a finding for the Icelandic courts.
GR2 (Government): As I understood it, Judge Kelbro was focusing on the first of those.
GR2 (Government): There is case law, as the court will know, particularly emanating originally from Turkey, which showed that where there was a finding of a violation of the impartiality requirement, because, for example, of the presence of a military judge on courts trying conventional criminal proceedings involving the PKK and others, where there was that problem of objective partiality, then the court has stated, in principle, that would justify a reopening of the case.
GR2 (Government): It's never said that a finding of a technical defect in some aspect of domestic law could, in principle, justify that reopening.
GR2 (Government): But the important point to emphasize here is that is what the applicant here is after.
GR2 (Government): That is what the applicant will be contending before the Icelandic courts.
GR2 (Government): And it is that which gives rise to the fundamental problems of legal certainty, or legal uncertainty, or legal chaos, as the Polish Commissioner for Human Rights would have it, that I've been emphasizing.
GR2 (Government): Turning then to Judge O'Leary's questions, the first related to the interrelationship of the terms within Article VI, established by law, fairness, independence, impartiality.
GR2 (Government): And I've attempted to give my answer to that question.
GR2 (Government): Judge O'Leary also focused expressly on, in a question directed, it should be said principally, to the applicant, on the implications for the applicant's own case.
GR2 (Government): We do, with respect, emphasize that point for our own part.
GR2 (Government): There are no implications here.
GR2 (Government): And it will be quite wrong for his case to lead to a finding of a violation.
GR2 (Government): And then the third question, which I think picked up on one of Judge Pinto's questions, related to the jurisdiction of the Supreme Court in Iceland, in terms of an annulment of the decision of the minister.
GR2 (Government): Now, that's a matter we've addressed at paragraph 123 of our written submissions.
GR2 (Government): To annul the decision of the minister would require separate proceedings, which the courts in Iceland would have jurisdiction over, just not within the applicant's own case.
GR2 (Government): But the point I emphasize here is that safeguard is there.
GR2 (Government): And not a single candidate of the disappointed candidates has ever contended that invalidation of the minister's decision to invalidate the successful candidate's appointment should occur.
GR2 (Government): So two important points to emphasize.
GR2 (Government): The jurisdiction is there to protect the rule of law.
GR2 (Government): And no one has ever suggested there's anything wrong with these judges' approach.
GR2 (Government): With these judges' appointments as a matter of substance.
GR2 (Government): Judge Kouris asked a number of questions.
GR2 (Government): On the facts, the question was, well, what was the logic and criteria of the selection of the judges?
GR2 (Government): Well, the logic and criteria was as explained in our written submissions, paragraph 18, as evidenced from the documents, in particular document 63, 43, and document F, as well as documents 24 and the others that we've referred to.
GR2 (Government): The criteria were to better reflect gender balance and to give greater weight to judicial experience.
GR2 (Government): Now on the back of that, Judge Kouris asked a question specifically about how it was that a male judge, Judge 30, had been appointed in preference or above a female judge, I think it was Judge 22, given the gender balance point.
GR2 (Government): Well, as documents 43 and document F show, Judge 30 scored significantly higher than Judge 22 in terms of judicial experience, even on the evaluation committee's analysis.
GR2 (Government): The score Judge 30 had was 9.5,
GR2 (Government): the score Judge 22 had was 6.5.
GR2 (Government): Now, right or wrong, and the fact that we're here suggests there are different views on this, those were the judges appointed.
GR2 (Government): What this answer illustrates, with great respect, is that there's no question whatever here of bad faith.
GR2 (Government): The courts have found that something went wrong, but there's no question here of bad faith.
GR2 (Government): Two objectively reasonable criteria were applied.
GR2 (Government): The fact that there's been an error in their application takes the applicant nowhere near a violation of article six.
GR2 (Government): Related to that, Judge Kouris asked a specific question about document 7 and what was meant by the words for the benefit of particular candidates.
GR2 (Government): There's no magic meaning to that and no significance to that.
GR2 (Government): It simply meant to whichever candidates happened to benefit from this once you applied this new weighting.
GR2 (Government): It wasn't referring to any particular individuals.
GR2 (Government): Simply, it was a general term to reflect whoever might be elevated.
GR2 (Government): And it's important to recall in this context the context in which that question was being asked and answered.
GR2 (Government): The minister had said to the evaluation committee, you've put forward 15 people for appointment, there are 15 places, can you give me a wider pool to consider?
GR2 (Government): And the response was, no, we don't think it would be appropriate to allow weighting to benefit some people over others.
GR2 (Government): But it wasn't identifying AE or anyone else, far less providing any substance to the conspiracy theories advanced by the applicant.
GR2 (Government): And that takes me back to Judge Kouris' question again, which I've already responded to in substance, but I emphasise it again.
GR2 (Government): There was no horse trading here.
GR2 (Government): The theory advanced by the applicant makes no chronological sense whatever.
GR2 (Government): It's compellingly rejected in all of the materials before the court.
GR2 (Government): I emphasise again document 63 and 64.
GR2 (Government): And it was never put in these extremely heightened ways before the domestic court.
GR2 (Government): And that leaves finally, I think, Judge Turkovich's question, what would be the consequence of annulment at the domestic level and what implications, if any, would the statute of limitations have?
GR2 (Government): Now, so far as that's concerned, the potential for reopening cases and the major problem in terms of legal certainty that that illustrates is not a potential that is met by any implication of statute of limitations.