TrustHLT/LaCour huggingface dataset:
Linos-Alexandre Sicilianos (JudgeP): and Mr. Molyneaux, Advisor.
Linos-Alexandre Sicilianos (JudgeP): The applicant is represented by Mr. Vilhjálmsson, Supreme Court Attorney.
Linos-Alexandre Sicilianos (JudgeP): I welcome the representatives in the name of the Court.
Linos-Alexandre Sicilianos (JudgeP): I also welcome a delegation of Ukrainian judges on a study visit to the Court.
Linos-Alexandre Sicilianos (JudgeP): Having consulted the agent of the government and the representative of the applicant, I have determined the order of addresses as follows.
Linos-Alexandre Sicilianos (JudgeP): Mr. Vilhjálmsson for the applicant will speak first,
Linos-Alexandre Sicilianos (JudgeP): and then Mrs. Þorsteinsdóttir and Mr. Otty for the government.
Linos-Alexandre Sicilianos (JudgeP): I would explain that in addition to interpreting in the two official languages of the Court, English and French, interpreting into Russian has been authorised for the benefit of a group of lawyers from Russia attending this hearing.
Linos-Alexandre Sicilianos (JudgeP): This interpretation is not part of the official interpretation of the proceedings as organised by the Court.
Linos-Alexandre Sicilianos (JudgeP): I call the applicant.
AP1 (Applicant): Mr. President, Members of the Court,
AP1 (Applicant): I address the Court on behalf of my client, Gudmundur Andri Aastraarsson.
AP1 (Applicant): The central issue at stake in this case is the continued meaningful protection of probably the most important principle within Article 6 of the Convention, the right to a tribunal established by law.
AP1 (Applicant): Without a real protection of this principle, the applicant contends that the rest of the rights of Article 6, paragraph 1, would be terminally undermined.
AP1 (Applicant): The applicant maintains that the way to guard this principle and ensure its continued relevance is to confirm the well-reasoned and correct chamber judgment and find for the applicant in this case.
AP1 (Applicant): On the other hand, to overturn the chamber judgment would seriously damage the protection of this principle.
AP1 (Applicant): This is the core of the applicant's arguments in this case.
AP1 (Applicant): Before proceeding further, I will seek to provide answers to the three questions put forth by the Court.
AP1 (Applicant): The answer to the first question is this.
AP1 (Applicant): According to the temporary provision to the Act on the Judiciary, it is clear that the Minister would only be required to submit new proposals to replace the refused candidates.
AP1 (Applicant): The second question is first and foremost for the government to answer.
AP1 (Applicant): However, the applicant is of the opinion that this list or a group of 24 candidates for the judicial posts in the Court of Appeal does not exist and never existed, and therefore this matter has no significance for this case.
AP1 (Applicant): Regarding the third question, the applicant answers as follows.
AP1 (Applicant): Icelandic law on criminal procedure provides the Supreme Court with an authority to reopen a case if an earlier process was sustainably flawed.
AP1 (Applicant): This criteria is general in nature, and its application depends on the facts of each case.
AP1 (Applicant): Here, we have a situation where a judge has been appointed by a flagrant violation of law.
AP1 (Applicant): On the face of it, such fundamental flaw seems to merit reopening.
AP1 (Applicant): In the Supreme Court's case law, however, there is no judgment that deals with similar situation.
AP1 (Applicant): There is only a recent judgment concerning a different set of facts indicating that the Supreme Court will interpret the substantially flawed criteria restrictively.
AP1 (Applicant): Therefore, the question on the right to file for a reopening has no clear answer at this stage.
AP1 (Applicant): I will now turn to the background to the facts of the present case.
AP1 (Applicant): There is, regrettably, a long-standing tendency in Iceland of political meddling in the appointment of judges.
AP1 (Applicant): In 2003 and 2004, the Minister of Justice appointed two judges to the Supreme Court.
AP1 (Applicant): In these appointments, the Minister decided not to abide by the recommendations of the Supreme Court.
AP1 (Applicant): In 2007, the Minister of Justice appointed a district court judge in direct opposition with the proposal of an evaluation committee.
AP1 (Applicant): In all these instances, the appointments were clearly political in nature because the appointees were closely connected to the Independence Party.
AP1 (Applicant): In 2010, comprehensive changes were made to the stipulations on the appointment of judges.
AP1 (Applicant): In broad terms, the changes meant that the power of appointment was effectively withdrawn from the Minister of Justice and put in the hands of an evaluation committee.
AP1 (Applicant): The purpose of this was clear, to stop political corruption and the abuse of power in the appointment of judges.
AP1 (Applicant): There is no doubt that these changes can be directly traced to the harsh criticism and public outcry that resulted from the repeated political appointments of judges in 2003, 2004, and 2007.
AP1 (Applicant): A few years after this, in 2016, a new act on the judiciary was enacted.
AP1 (Applicant): One of its main purpose was to limit further the influence of the executive branch on judicial appointments.
AP1 (Applicant): It was also meant to ensure a proper and professional mechanism for the evaluation of judicial candidates.
AP1 (Applicant): These changes in 2010 and 2016 aimed to rule out that a minister's whim could decide a judicial appointment.
AP1 (Applicant): The new act on the judiciary from 2016 also contained a special provision.
AP1 (Applicant): In the event of the Minister of Justice decided to go against the proposals of the evaluation committee, the decision would need the consent of Parliament.
AP1 (Applicant): There is no doubt that the enactment of this special rule was meant to be a further safeguard against possible overstepping or abuse by the executive branch, and therefore to uphold and maintain public trust in a judiciary independent from the executive branch.
AP1 (Applicant): I will now turn to the appointments of judges to the Court of Appeal in spring 2017.
AP1 (Applicant): Unfortunately, even the best and most ambitious laws will come to nothing if they are not followed.
AP1 (Applicant): That is exactly what happened in this case when the former Minister of Justice decided to go against the recent decision of the evaluation committee and replaced four of the 15 most qualified candidates with four others less qualified.
AP1 (Applicant): With the judgment of the Supreme Court from 19 December 2017, it was found that the former Minister of Justice had violated the law in the appointment process.
AP1 (Applicant): As a result, two of the four refused candidates were awarded damages by the Supreme Court.
AP1 (Applicant): The Supreme Court also found that the procedure deployed by Parliament in the appointment process had been defective.
AP1 (Applicant): In two judgments from 25 October 2018, the District Court of Reykjavik found that the two remaining refused candidates had rightful claims for damages.
AP1 (Applicant): Taking into account those conclusions and arguments by the Istanbul courts, the applicant holds that the following summary of these facts has to be considered true and undeniable.
AP1 (Applicant): The multiply law violations during the appointment process made the panel of judges on the Court of Appeal very different from what would have been the case if the law had been followed.
AP1 (Applicant): I will now turn to the Supreme Court judgment of May 24, 2018.
AP1 (Applicant): In May 2018, the Supreme Court ruled on the applicant's appeal and rejected the applicant's claim to quash the judgment of the Court of Appeal and order a retrial.
AP1 (Applicant): In the judgment, the Supreme Court did not especially evaluate whether the violations of the former Minister of Justice and Parliament should be deemed serious in nature or just deviations of little or none consequences.
AP1 (Applicant): However, the judgment directly refers to the judgment of the Supreme Court of 19 December 2017 and states that those judgments have full evidentiary value in the applicant's case as well.
AP1 (Applicant): With that in mind, one should recall one of the central conclusions of those former judgments by the Supreme Court.
AP1 (Applicant): And that was namely the judgment of the Supreme Court and that was namely that the former Minister of Justice had broken the rules on the appointment of judges in complete disregard of the obvious danger of such violations.
AP1 (Applicant): And let me respectfully remind the Court, obvious danger, complete disregard.
AP1 (Applicant): This is the Supreme Court's own harsh judgment on the actions of the former Minister.
AP1 (Applicant): This condemnation by the Supreme Court must be understood to mean that the violations by the former Minister of Justice should be considered as having been committed either deliberately or by such gross negligence that it borders on intent.
AP1 (Applicant): It has therefore been shown that the violations of the former Minister of Justice in the appointment process were grave.
AP1 (Applicant): Supported by the case law of this Court, they should therefore rightfully have led to the conclusion that the applicant's sentence by the Court of Appeal to be quashed and the case retried before a court established by law.
AP1 (Applicant): Regrettably, the Supreme Court did not rise to the occasion and reach the correct conclusion.
AP1 (Applicant): Regarding the seriousness of the violations by Parliament itself, one point must be made.
AP1 (Applicant): It is mistakenly stated in the judgment of the Supreme Court in the applicant's case that the Supreme Court had previously, in its judgment in December 2017, considered it a minor defect that Parliament did not follow the clear and unconditional legal duty to vote on each candidate separately.
AP1 (Applicant): No such reasoning can be found in the Supreme Court's judgment from 2017, as was correctly pointed out in paragraph 120 in the chamber judgment.
AP1 (Applicant): This statement of the Supreme Court in the applicant's case is therefore simply wrong.
AP1 (Applicant): It also confirms that the Supreme Court did not independently evaluate the seriousness of the violations of Parliament in the appointment process.
AP1 (Applicant): I will now turn to the seriousness of the Icelandic state's violations.
AP1 (Applicant): To start with, I refer to my previous arguments regarding the Supreme Court's harsh remarks in its judgment in December 2017.
AP1 (Applicant): In that context, it should be borne in mind that the former Minister of Justice is a lawyer.
AP1 (Applicant): She was a practicing attorney in Iceland from 2007 to 2015, as well as being a member of the Judiciary Committee and thus being a member of the Judicial Council from 2004 to 2009.
AP1 (Applicant): It is therefore clear she had, as a specialist, a personal knowledge of Icelandic law, including rules regarding legal principles relevant to the court system and to the appointment of judges.
AP1 (Applicant): There is also clear written evidence that legal staff of the ministry repeatedly and forcefully pointed out to the former minister how she was legally obliged to act.
AP1 (Applicant): It is also clear how the minister reacted to this well-founded advice.
AP1 (Applicant): She simply ignored it.
AP1 (Applicant): That fact still further supports that the violations in the appointment process were committed deliberately.
AP1 (Applicant): Last but not least, when the minister decided to put aside more qualified candidates in favor of less qualified ones, it can be asked whether her actions can be viewed as plain abuse of power.
AP1 (Applicant): Here, the applicant refers to the strange turn of events in late 2017 when an Independence Party MP, BN, relinquished his first place seat on the Independence Party election ticket in Reykjavik South to the former Minister of Justice only a few months after the minister appointed the MP's wife, AE, to the Court of Appeal.
AP1 (Applicant): In this respect, the applicant further refers to its written submissions to the Grand Chamber, paragraphs 40 to 46, where these events are explained and examined more closely.
AP1 (Applicant): From the applicant's point of view, it is hard to reject or to try to explain this turn of events as being coincidences, one after another.
AP1 (Applicant): Instead, this seems to suggest or point towards abuse of power.
AP1 (Applicant): Last but not least, it must be held in mind that the former minister's own stated reason for ignoring the Evaluation Committee's proposal have from the start not stood up to the current not stood up to any serious scrutiny.
AP1 (Applicant): Let us remember that the former Minister of Justice explained the changes to the candidates list with a reference to gender equality and judicial experience.
AP1 (Applicant): Those arguments are not convincing.
AP1 (Applicant): Firstly, one of the refused candidates was a district court judge that had been ranked higher than all four district court judges that the former minister chose to appoint instead.
AP1 (Applicant): Secondly, she appointed a male district court judge that had been ranked number 30 but decided to ignore a female district court judge that was ranked number 22.
AP1 (Applicant): This surely rules out the minister's own justifications for her actions and point instead to abuse of power.
AP1 (Applicant): From all this, it is clear that the violations of the former Minister of Justice were extremely serious, as was rightly concluded by the chamber in its judgment.
AP1 (Applicant): Regarding the violations of Parliament, regarding the violations of Parliament, the Supreme Court completely failed to evaluate the seriousness in its judgment in the applicant's case.
AP1 (Applicant): Instead, the Supreme Court wrongly stated that they had already been evaluated and found to be minor in its judgment in December 2017.
AP1 (Applicant): No sensible explanations have been given on why Parliament decided to disregard a clear and unmistakable legal stipulation in this way.
AP1 (Applicant): Whatever the reason for this, it is indisputable that this was a conscious and controlled decision by Parliament.
AP1 (Applicant): As a consequence, this decision has to be considered a deliberate violation, which makes it especially grave.
AP1 (Applicant): The question then arises, why did Parliament decide to violate a clear statutory in the law?
AP1 (Applicant): To the applicant, this question is not difficult to answer.
AP1 (Applicant): This was the only way to get Parliament to pass the former Minister of Justice's proposal to appoint to the Court of Appeal the four candidates that had not been ranked among the 15 most qualified ones.
AP1 (Applicant): It was simply found impossible for political reasons to vote on each candidate separately.
AP1 (Applicant): To understand this, one must only consider what the procedure would have meant.
AP1 (Applicant): To take just one example, Parliament would then have had to directly reject a candidate, EJ, ranked among the most qualified at number seven, in favor of a candidate ranked much lower, for example, JF, who had been ranked at number 30.
AP1 (Applicant): With this in mind, it is sadly evident that in this matter, Parliament utterly failed to act as a control or check upon the executive power.
AP1 (Applicant): And in doing so, it ignored and neglected a legal duty entrusted to Parliament for those exact circumstances.
AP1 (Applicant): Regrettably, it is plain that the matter was instead driven to its preordered and desired conclusion along political lines.
AP1 (Applicant): The appointments were hustled through Parliament with unlawful procedure by a government majority making use of its voting power.
AP1 (Applicant): Again, it is therefore clear that the violations of the Minister of Justice and Parliament directly resulted in the Court of Appeal being made up of other judges as its founding than would have been the case if the law had been observed.
AP1 (Applicant): The applicant holds that violations with such serious consequences can never be ranked or justified as minor deviations.
AP1 (Applicant): If that was the case, the principle in Article 6, paragraph 1 of the Convention, that a tribunal shall be established by law, could not be deemed to offer citizens meaningful protection against state authority as correctly concluded in paragraph 123 in the Chamber judgment.
AP1 (Applicant): The violations of the Minister of Justice and Parliament must therefore be viewed as flagrant breaches of law.
AP1 (Applicant): It must also be taken into account that the case involves the violations of two branches of government, that is, the legislative and executive branches, against the interest and integrity of the third, the judicial branch.
AP1 (Applicant): The violations were against laws and rules that are meant to ensure that professional and legal procedure is followed in the appointment process of judges, and thereby to protect the independence of the judicial branch.
AP1 (Applicant): I will now turn to the case law of this court.
AP1 (Applicant): Regarding the case law of the judicial branch, regarding the definition of law within the meaning of Article 6, paragraph 1, the applicant refers to paragraph 70 and 71 in the applicant's written submissions to the Grand Chamber.
AP1 (Applicant): The applicant will, however, take a closer look at how this criteria has been interpreted in the case law of this court.
AP1 (Applicant): The following principle in the case law of the court has been used to assess the seriousness of violations against rules on judicial appointments in the national law of member states.
AP1 (Applicant): Here, a reference is made to paragraphs 100 to 103 in the Chamber Judgment.
AP1 (Applicant): Number one, can the violations be traced to more than one branch of state authority, that is, a breach of both the legislative and executive branches?
AP1 (Applicant): Number two, have the violations been confirmed by the court of the state in question?
AP1 (Applicant): Number three, do the violations concern principles that constitute an inseparable part of the foundation and function of the justice system?
AP1 (Applicant): And number four, can the violations be described as intentional breach of national law, or have they been committed by gross negligence?
AP1 (Applicant): Lastly, this court has increasingly, in its jurisprudence, based its findings on the principle of separation of power, in this instance between the judicial and executive branch.
AP1 (Applicant): In that respect, it has been examined whether the executive branch has improperly undermined public faith and trust in legally established processes on the appointment of judges.
AP1 (Applicant): The applicant submits that all of those five principles clearly apply to the violations committed by the former Minister of Justice and Parliament.
AP1 (Applicant): It was therefore correctly concluded in the chamber judgment that the procedure had been seriously flawed by flagrant breaches of national law.
AP1 (Applicant): In this context, it is worth examining whether the principle of legal certainty can have a significance when assessing a possible violation of the principle that a tribunal is established by law.
AP1 (Applicant): It is not quite clear to what extent the principle of legal certainty applies in this respect.
AP1 (Applicant): It is, however, clear that the principle does not apply when there has been a flagrant breach of the law, like in the present case.
AP1 (Applicant): Regarding this argument, I refer to paragraph 107 to 109 in the opinion of Attorney General Eleanor Shetlestone from 12 September 2019.
AP1 (Applicant): Furthermore, how can the principle of legal certainty be said to have any impact on this case when the following is considered?
AP1 (Applicant): As earlier described, the Supreme Court had in its judgment of December 2017 concluded that the appointment process had been flawed due to serious violations of the applicable law.
AP1 (Applicant): That was more than 10 days before the appointments of the judges of the Court of Appeal came into effect on 1 January 2018.
AP1 (Applicant): This harsh condemnation by the Supreme Court on the unlawfulness of the appointment process was therefore known to all in Iceland before the appointed judges even took office.
AP1 (Applicant): In spite of that, the Icelandic state willingly decided to act as if nothing had happened.
AP1 (Applicant): Therefore, the Icelandic state cannot in good faith defeat legal certainty in this case.
AP1 (Applicant): Mr. President, members of the Court, for six decades
AP1 (Applicant): this court has been at the forefront of protection of human rights.
AP1 (Applicant): It can safely be said that its work has been of great importance.
AP1 (Applicant): The established by law principle must be understood to mean not only that a tribunal be established by law in strictly formal and narrow sense, it must also and very possibly more importantly be understood as a requirement that any actions in the court of establishing a tribunal must be lawful in all relevant material sense.
AP1 (Applicant): In other words, no law can freely be broken, bent, or ignored during the establishment of courts of law.
AP1 (Applicant): To quote famous words centuries old from a text closely related to the subject matter here today, the applicant finds this straightforward and sensible understanding of Article 6, paragraph 1, to be self-evident.
AP1 (Applicant): Unfortunately, the state of Iceland is of another view in contesting this case with the support of its recent brothers in arms, the Republic of Poland.
AP1 (Applicant): The applicant therefore places his trust in this court to uphold and safeguard for him and other citizens in the jurisdiction of the Republic of Poland jurisdiction of the court the continuing meaningful protection of this central and most important principle of the convention.
Linos-Alexandre Sicilianos (JudgeP): Thank you. I call Mr. Þorsteinsdóttir, please.
Linos-Alexandre Sicilianos (JudgeP): You have the floor.
GR1 (Government): Mr. President, Members of the Court,
GR1 (Government): The Government emphasises at the outset its profound respect for the role of this Court and the rule of law.
GR1 (Government): The Government has repeatedly responded in a responsible and constructive manner to the decisions of the Court, even where very substantial disruption and cost in implementation has been involved.
GR1 (Government): At the institution of the Court of Appeal, the subject of these proceedings was itself established in response to an earlier judgment of this Court.
GR1 (Government): In the present context, and consistent with the rule of law, the domestic courts have provided full access to court for those judicial candidates who were disappointed by the appointment process, and where the Supreme Court has granted damages to those individuals, the Government has complied fully with the Supreme Court's rulings.
GR1 (Government): Furthermore, since the Chamber judgment, neither Judge A.E. nor any of the three judges who
GR1 (Government): were appointed at the same time and were not among the 15 whom the Evaluation Committee had suggested, have sat in any Court of Appeal proceedings.
GR1 (Government): But this state of paralysis cannot, it is submitted, be allowed to continue, and the Court contends that the Grand Chamber should now bring it to an end by finding that whatever test is applied to the meaning of established by law on the facts of this case, there was no violation of the Convention.
GR1 (Government): This should be the outcome, having regard to the principle of subsidiarity, to the lack of substantive merit in the applicants' complaints, and to the fundamental principles of judicial security of tenure and legal certainty.
GR1 (Government): Mr. President, Mr. Ohti will address the law, but before he does so, I would like to emphasize
GR1 (Government): 12 central elements of the factual background to this case, and to respond to the Court's most recent questions.