ECtHR: Judge appointed in tainted process violated defendant’s rights

ECtHR: Judge appointed in tainted process violated defendant’s rights

Andrew McKeown BL

The Grand Chamber of the European Court of Human Rights (ECtHR) has found that the fact that the Minister for Justice in Iceland selected a judge for appointment, in favour of candidates shortlisted by an independent evaluation panel, without providing sufficient reasons, meant that the judicial appointment was tainted by undue Executive discretion.

The participation of this judge in a criminal case was held to have violated the applicant’s European Convention on Human Rights (ECHR) rights to a “tribunal established by law”. ECtHR rulings are erga omnes, meaning that they are potentially binding on all member states.


In March 2017, Guðmundur Ástráðsson was convicted of driving without a valid licence, under the influence of narcotics. He appealed to the Icelandic Supreme Court. His case was referred to the newly-established Court of Appeals.

During his appeal, he argued that one of the court’s members, Judge Arnfríður Einarsdóttir, had been improperly appointed to the court and requested her removal. When the court was created, a special independent evaluation committee produced a list of 15 judges. However, then-Minister for Justice Sigríður Andersen substituted candidates, including Judge Einarsdóttir, who had not made it to the top fifteen.

By doing so without carrying out an independent evaluation of the facts or providing adequate reasons for her decision, the Minister of Justice had breached domestic law. Further, Parliament had not held a separate vote on each individual candidate, as required by law, but instead voted in favour of the Minister’s list en bloc. The Supreme Court held, however, that these irregularities could not be considered to have nullified the appointment, and that the applicant had received a fair trial.

In March 2019, a Chamber of the ECtHR found that there had been a violation the right to a tribunal “established by law” (no. 26374/18, 12 March 2019). Following the judgment, the Minister resigned, and the Court of Appeals suspended for one week. It resumed with only 11 of the 15 appointed judges sitting. The four judges whose appointments had been impugned did not sit. The case was referred to the Grand Chamber of the ECtHR at Iceland’s request.

Grand Chamber

With respect to the ECHR Article 6 §.1, the Grand Chamber had to determine the consequences of the breaches of domestic law, notably whether Judge Einarsdóttir’s participation had deprived Mr Ástráðsson of the right to be tried by a “tribunal established by law”. The Grand Chamber analysed its relationship with the other “institutional requirements”, those of independence and impartiality.

Mr Ástráðsson referred to the Court of Justice of the European Free Trade Association States decision in Pascal Nobile v DAS Rechtsschutz-Versicherungs AG (E-21/16) and the General Court of the European Union’s judgment in FV v Council (Case T‑639/16 P), arguing that a judge whose appointment had not been in conformity with the law could not be considered to have been fully vested with judicial powers and his or her judgments would therefore have no validity.

The Grand Chamber found that it was inherent in the very notion of a “tribunal” that it be composed of judges selected on the basis of merit through a rigorous process to ensure that the most qualified candidates, both in terms of technical competence and moral integrity, were appointed. The higher a tribunal was placed in the judicial hierarchy, the more demanding the applicable selection criteria should be.

Having regard to its fundamental implications for the legitimacy of the judiciary in a democratic State governed by the rule of law, and citing Ilatovskiy v Russia (6945/04), the court found that the process of appointing judges necessarily constituted an inherent element of the concept of “establishment” of a court or tribunal “by law”. The “established by law” requirement existed to protect the judiciary against encroachments from unlawful external influence, particularly from the Executive. The process of appointing judges called for strict scrutiny. A “tribunal established by law” meant a “tribunal established in accordance with the law”, with a clear interrelationship between the requirements of “independence”, “impartiality” and “tribunal established by law”.

Contracting States are afforded a certain margin of appreciation, and a three-limb test is to applied. First, there must be a “manifest” breach of domestic law, objectively and genuinely identifiable. The ECtHR generally show deference to the national courts’ interpretation as to whether there was a breach, unless the breach was “fragrant”. Second, the breach should be assessed in light of the “tribunal established by law” requirement, to ensure the judiciary can perform its duties free of undue interference. Third, the review conducted by national courts as to the legal consequence, in terms of an individual’s ECHR rights, of a breach of domestic law plays a significant role in determining whether such breach amounts to a violation of the right to a tribunal established by law. Such review must be carried out on the basis of the relevant ECHR standards.

The Grand Chamber held that there was a manifest breach of the domestic law. There had been a grave breach of the law pertaining to a fundamental rule on appointing judges. The independent evaluation committee’s main purpose was to limit the influence of the Executive. The Minister failed to explain why she had picked one candidate over another, as required by law. While she purportedly had regard to subjective factors, such as “success” in career, she did not explain how she had measured it. Those actions raised objectively justified concerns that she had acted out of political motives. The Grand Chamber noted that it could not ignore Mr Ástráðsson’s allegations regarding the political connections between the Minister and the husband of the impugned judge. Moreover, the Minister was a member of one of the parties forming the majority in the coalition Government, by whose votes alone her proposal had been adopted in Parliament. This was sufficient to taint the legitimacy and transparency of the whole procedure.

The Icelandic parliament had failed to demand that the Minister provide objective reasons for her proposed candidates, and it failed to comply with the voting rules. It had, therefore, undermined its own supervisory role as a check against untrammelled Executive power.

The Supreme Court had failed to carry out a Convention‑compliant assessment and did not have regard to the question of whether the safeguard enshrined in the concept of “established by law” had been achieved. The court had mainly focused on the question of whether the irregularities had had any actual implications for the judge’s independence or impartiality, a question which had no direct bearing on that assessment.


The Grand Chamber unanimously found that there was a violation of Mr Ástráðsson’s ECHR rights. It awarded him €20,000 for the breach.

Share icon
Share this article: