84.

På dette trin er det vigtigt nøje at undersøge Menneskerettighedsdomstolens præcise ræsonnement i dommens §§ 102, 103 og 123 (som efter min opfattelse udgør det sande grundlag for denne domstols analyse), som jeg citerer in extenso: »102. The Court notes in this connection that it flows from the criteria in the Court’s case-law that a violation of national law be »flagrant« that only those breaches of applicable national rules in the establishment of a tribunal that are of a fundamental nature, and form an integral part of the establishment and functioning of the judicial system, can be considered to fulfil this criterion. In this context, the concept of a »flagrant« breach of domestic law therefore relates to the nature and gravity of the alleged breach. Furthermore, in the Court’s examination of whether the establishment of a tribunal was based on a »flagrant« violation of domestic law, the Court will take into account whether the facts before it demonstrate that a breach of the domestic rules on the appointment of judges was deliberate or, at a minimum, constituted a manifest disregard of the applicable national law (see also in this context, [FV-dommen], § 77 […]). 103. Finally, the Court recalls that »the notion of the separation of powers between the executive and the judiciary has assumed growing importance in its case-law« […]. The same applies to the »importance of safeguarding the independence of the judiciary« […]. Therefore, on the basis of the above-mentioned principles, and taking account of the object and purpose of the requirement that a tribunal be always established by law, and its close connection to the fundamental principle of the rule of law, the Court must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, exercised undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time. […] 123. In the light of all of these elements, the Court cannot but conclude that the process by which A.E. was appointed a judge of the Court of Appeal, taking account of the nature of the procedural violations of domestic law as confirmed by the Supreme Court of Iceland, amounted to a flagrant breach of the applicable rules at the material time. Indeed, the Court finds that the process was one in which the executive branch exerted undue discretion, not envisaged by the legislation in force, on the choice of four judges to the new Court of Appeal, including A.E., coupled with Parliament failing to adhere to the legislative scheme previously enacted to secure an adequate balance between the executive and legislative branches in the appointment process. Furthermore, the Minister of Justice acted, as found by the Supreme Court, in manifest disregard of the applicable rules in deciding to replace four of the fifteen candidates, considered among the most qualified by the Committee, by other four applicants, assessed less qualified, including A.E. The process was therefore to the detriment of the confidence that the judiciary in a democratic society must inspire in the public and contravened the very essence of the principle that a tribunal must be established by law, one of the fundamental principles of the rule of law. The Court emphasises that a contrary finding on the facts of the present case would be tantamount to holding that this fundamental guarantee provided for by Article 6 § 1 of [ECHR] would be devoid of meaningful protection. Therefore, the Court concludes that there has been a violation of Article 6 § 1 of [ECHR] in the present case.«