♦ The Helsinki Foundation for Human Rights has submitted an amicus curiae brief to the European Court of Human Rights in the case of Ástráðsson v. Iceland concerning the impact of irregularities in judicial appointments on the individual’s right to a court. Proceedings in the case are pending before the Grand Chamber of the ECtHR, following an appeal by the Icelandic government against the Chamber’s judgment entered in March 2019.

♦ The Grand Chamber’s upcoming decision may be important not only for Iceland but also for other member states of the Council of Europe, including Poland.

♦ According to the HFHR, the crisis in the Polish judiciary shows that legal violations affecting the judicial appointments process, especially those appearing in circumstances suggesting the partisan complicity of the executive and legislature, pose a clear and present threat to human rights and the country’s entire legal system.

Defectively appointed judges issue legal judgments

Guðmundur Ástráðsson was convicted by a judgment of the Icelandic Court of Appeal, issued by a panel comprising of a defectively appointed judge. The defectiveness resulted from a government minister’s unlawful nomination of judicial appointees who have been evaluated by an independent committee of experts as lesser-performing candidates. Moreover, the Icelandic Parliament held a single vote on all candidates but should have voted on each candidate individually. Two unsuccessful candidates sued Iceland, claiming compensation for the pecuniary and non-pecuniary damage resulting from the unlawful infringement of their rights. The case was finally decided by the Supreme Court of Iceland, which ruled for the claimants and concluded that the appointment procedure had indeed been unlawful.

However, the defectively appointed judges continued to adjudicate cases, and one of them convicted the applicant. The man filed a cassation complaint with the Supreme Court, claiming that the ruling was made by an improperly constituted court, but his complaint was dismissed. The Supreme Court decided that defects in the judicial appointments process did not affect the legality of decisions made by the defectively appointed judges. The Court held that these legal defects did not lead to the invalidity of the acts of judicial appointments, arguing that upon receiving the president’s appointment, the judges became capable of actively performing their judicial role. Accordingly, according to the Icelandic Supreme Court, there are no grounds for challenging the standing of the judges concerned.

ECtHR finds a violation, government requests referral

Ástráðsson has lodged an application with the ECtHR, alleging that the national authorities have infringed the guarantee of the right to a court established by law enshrined in Article 6(1) ECHR. In the Chamber’s judgment, the ECtHR ruled for the applicant. The Strasbourg Court held that the mere fact that defective appointments were considered effective under domestic law does not mean that Article 6 had not been infringed What must be assessed is, in the Court’s view, whether there had been a “flagrant breach” of domestic law. In order to perform such an assessment, one needs to consider the impact of violated national rules and the nature of the government’s violations. It is also important whether the breach of national rules created the risk that other authorities would put undue pressure on the judicial appointments process, interfering with the proper conduct of the process.

In applying the above test to Ástráðsson’s case, the Chamber concluded that Article 6 (1) ECHR had been violated. The judgment aroused considerable controversy, as evidenced, among other things, by two dissenting opinions of the Chamber’s judges. The decision was challenged by the Icelandic Government, which requested that the case be referred to the Grand Chamber. The Grand Chamber will hear the case on 5 January 2020 in Strasbourg.

HFHR: Violations in the judicial appointments process undermine the right to a court

The Helsinki Foundation for Human Rights presented an amicus curiae brief in the case. In the brief, the Foundation notes that Ástráðsson is important for other Council of Europe countries, including Poland. The HFHR recalls Polish disputes over the lawfulness of elections and appointments of certain judges, focusing on the three “double-judges” of the Constitutional Tribunal and several hundred judges appointed to sit on the Supreme Court and common courts at the nomination of the National Council of the Judiciary composed of members elected under the law adopted on December 2017. The Foundation indicates that while ruling on the legal status of the judges in its newly created chambers, the Polish Supreme Court has frequently referred to the Ástráðsson judgment. The ECtHR judgment was also invoked by “new” judges in their attempts to legitimise their adjudication powers.

The Foundation also points out that serious legal violations in the judicial appointment process, and especially violations of laws designed to ensure that the procedure is objective and free from political interference, may have a negative impact on the right to a court. The proper formulation of the model of judicial appointments is recognised as a factor to be taken into account in the assessment of judicial independence. Accordingly, a breach of relevant laws may also affect the perception of judicial independence. A party to the proceedings may reasonably fear that a judge appointed as a result of unlawful interference by executive or legislative bodies may not be impartial and independent.

Legal certainty may also be jeopardised, as judgements handed down with the participation of judges with questionable legal standing may be challenged through ordinary or extraordinary remedies. Furthermore, in a state governed by the rule of law, members of the public must be sure that judges hearing their cases are lawfully appointed. Otherwise, the functional legitimacy of the judiciary may be undermined, which may lead to legal chaos.

The ongoing crisis affecting the judiciary in Poland is yet more proof that this pessimistic scenario is likely. At the same time, the Foundation notes that it is dangerous to accept that any irregularities in the judicial appointment process are irrelevant as long as they do not lead to the invalidity of the acts of appointment. Such an interpretation may encourage the authorities to manipulate the appointment process for partisan political purposes, which could have a negative impact on the legitimacy of the judiciary and may also interfere with the rule of law.