Photo by Art Bicnick

Minister of Justice Sigríður Á. Andersen’s appointment of four judges to the Court of Appeals constituted a violation of the law, the European Court of Human Rights (ECHR) has determined in a new judgment released today. Parliament was also found negligent in the matter, for not providing the necessary checks against the executive branch. The Icelandic government has been ordered to pay €15,000 in compensation.

Background

Iceland’s Court of Appeals was established in January 2018. According to the Judiciary Act, a special Evaluation Committee was supposed to assess the candidates for the posts of the initial 15 judges to this court. When this Committee submitted its 15 most qualified candidates for the job, the Minister compiled her own list, including just 11 of the candidates the Committee had approved. An additional four were ranked too low by the Committee to qualify, but the Minister appointed them anyway.

In June 2017, this revised list was approved by Parliament, signed into law by the President in the same month. Later that month, two candidates for the court who had been bumped off the top 15 by the Minister filed a legal complaint against the Icelandic state. While the Supreme Court would ultimately reject their claims for compensation for pecuniary damage, they were each granted 700,000 ISK as compensation for personal injury. This court found that the Minister had violated administrative law, and that Parliament had been in error in their appointing all 15 as a single bloc, rather than voting on each candidate separately.

Nonetheless, these 15 judges remained at their posts.

The flashpoint

What would eventually send this case to the ECHR was one Guðmundur Ástráðsson, who was convicted in March 2017 of driving without a valid licence and being under the influence of narcotics. He appealed to the Supreme Court, but as his case was not heard before the end of the year, it went instead to the Court of Appeals. In January 2018, Guðmundur was notified by the prosecution who the three judges on his case would be. These included one of the less-qualified judges who had been bumped up the list by the Minister.

As such, Guðmundur requested that this judge recuse themselves due to irregularities in their appointment, but this motion was rejected the District Court, Court of Appeals, and finally by the Supreme Court in May 2018.

This is what would bring the matter to ECHR.

The ruling

The ECHR found that the Court of Appeals appointments had violated Article 6 § 1 (right to a tribunal established by law) of the European Convention on Human Rights.

“The Court found in particular that the process by which a judge was appointed to the Court of Appeal had amounted to a flagrant breach of the applicable rules at the material time,” the ruling reads in part. “It had been to the detriment of the confidence that the judiciary in a democratic society must inspire in the public and had contravened the very essence of the principle that a tribunal must be established by law.”

This ruling found that “the Minister was considered by the Supreme Court to have acted in complete disregard of the obvious danger to the reputational interests of two of the four candidates, who had instituted judicial proceedings. She had not provided a sufficient justification for her decision, although she had received expert advice from lawyers within the administration to that effect. Her reliance on prior judicial experience had not been based on an independent assessment or newly obtained information or other documentation. Thus, these breaches of national law also demonstrated her manifest disregard for the applicable rules at the time,” adding that she “had acted in manifest disregard of the applicable rules in deciding to replace four of the 15 candidates by another four applicants, who were assessed as being less qualified by the Committee. The process had therefore 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.”

Parliament was not without blame, either, as the ECHR noted “the failure of Parliament to adhere to the national rule of separate voting on each candidate had also amounted to a serious defect in the appointment procedure.”

All this being the case, the ECHR has ordered the Icelandic government to pay Guðmundur €15,000 in respect of costs and expenses.

Social Democrat chair Logi Már Einarsson is already calling for the Minister to resign. What next steps will be taken in Iceland regarding the judges currently serving on the Court of Appeals, and possibly even the Minister’s own position, still remains to be seen.