With so many new judges about to be appointed to serve in the national courts of Malta as well as in the regional courts under the auspices of the Council of Europe and the European Union, it is pertinent to bring to the attention of the authorities and the public in general the judgment delivered this month by the European Court of Human Rights in Strasbourg on March 12, 2019 in the case of Guðmundur Andri Ástráðsson v. Iceland (Application no. 26374/18). 

Naturally, this judgment will also have consequences for other Member States besides Iceland. The judgment is important for the reason that it lays down certain requirements for the proper appointment of judges. The European Court of Human Rights in its majority judgment supported by five out of seven judges held that:

“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 15 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 emphasised the importance...of compliance with the principle of the separation of powers

“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 the Convention would be devoid of meaningful protection. Therefore, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in the present case.”

Viewing this procedural breach through the lens of Article 6 § 1 of the Convention, as was required under the Court’s case-law, the Court observed that the statutory scheme, requiring the active participation of Parliament in voting on the candidates to the new Court of Appeal, “was meant to serve the important public interest of safeguarding judicial independence vis-à-vis the executive branch”.

This legislative framework was intended to minimise the risk of party-political interests unduly influencing the process by which the qualifications of each candidate were to be evaluated and ultimately confirmed by the legislative branch, the Parliament. The European Court of Human Rights emphasised the importance in a democratic society governed by the rule of law of securing compliance with the principle of the separation of powers. 

The question will undoubtedly arise in future as to whether and to what extent court decisions can be challenged on the basis of a flaw in the procedure for appointing a judge to sit on the bench.

In their joint dissenting opinion Judges Lemmens and Griţco premised that:

“At the outset of this separate opinion, we would like to stress that we strongly believe in the fundamental importance of the independence of the judiciary for the rule of law. With respect to the crucial issue of the appointment of judges, we think that objective selection criteria and a fair selection process are indispensable. The aim should be to guarantee equal treatment of the candidates, to arrive at a selection based on the merits of the candidates, and to avoid undue political influences.”

In Ástráðsson v. Iceland, the Minister of Justice 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 Evaluation 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.

Iceland’s Minister of Justice Sigríður Á. Andersen has since stepped down over the court’s ruling.

Dr Tonio Azzopardi is a European Human Rights practitioner.  He has pleaded successfully before the Grand Chamber of the European Court of Human Rights in Strasbourg (Micallef v. Malta) which is now a leading case on judges’ independence and impartiality.

This is a Times of Malta print opinion piece

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