Thursday, 21 January 2021
Monday, 18 January 2021
The focus and aims of the training are described below by the organisers:
Friday, 15 January 2021
'In Russia, the magnitude of the non-implementation problem is of concern: of the ‘leading’ judgments from the last ten years, i.e. those identifying new and structural problems calling for wider reforms, 88% remain pending.
NGOs are accorded a critical role in the Council of Europe’s (CoE) process that underpins the supervision, by the Committee of Ministers (CM), of the implementation of these judgments (known as the CM judgment execution process). This is made possible under Rule 9.2. of the Rules of the CM. To translate into real human rights gains, NGO recommendations must also be supported by sustained advocacy at the domestic level.
The aims of the training are to equip NGOs so that they know how to use the CM judgment execution process and which domestic advocacy tools they can apply to support full and effective implementation of ECtHR judgments. The training will equip participants to work on all types of ECHR cases. A thematic session will be focused on the implementation of ECHR judgments related to freedom of expression.
The training on Russia will take place in the week of 12 April 2021, for 1,5 days. The exact date and place are to be confirmed. The in-person meeting could be replaced by an online session should international travels still be limited due to the health situation. The decision on whether the in-person meeting will be replaced by an online session will be taken at least 3 weeks before the event.
Who can apply?
· Staff of NGOs working on, or planning to work on, implementation of ECtHR judgments in Russia,; independent lawyers or human rights defenders supporting NGOs in these activities.
· Staff from specialised organisations working on freedom of expression who intend to engage into the ECHR judgment implementation process.
People do not have to be based in Russia, but must have a clear work focus in one or several of the target countries.
How to apply?
Interested applicants have to return the application form by 29th January 2021 to NHC Programme Officer: firstname.lastname@example.org .
Selected participants will be informed by 19th February 2021. The number of participants being limited to 20 in case of in-person meeting, we encourage you to apply as soon as possible!'
Tuesday, 12 January 2021
- The European Commission’s ongoing monitoring of the COVID-19 rule of law situation in the EU – findings and recommendations, by Joachim Herrmann
- Recent case law of the European Court of Human Rights (ECtHR) on emergency situations, by Pamela McCormick
- Enforcement of lockdown measures under ECHR scrutiny • Legal certainty, proportionality and necessity of fines, by Grégory Thuan dit Dieudonné
- Overcoming barriers in access to justice for persons with disabilities and other groups during the pandemic, by Maroš Matiaško
- Roundtable discussion: Practical challenges to the right of access to a court and to a fair trial during the health crisis, by Dory Reiling, Christian Schierholt, Grégory Thuan dit Dieudonné
- The exercise of freedom of expression and freedom of assembly and association during the fight against COVID-19, by Antoine Buyse
- Privacy and data protection during COVID-19, by Emanuele Ventrella
Guest Post on Guðmundur Andri Ástráðsson v. Iceland: Breach of Domestic Law on Judicial Appointments Violated the Right to a Fair Trial
Facts of the Case
The case of Guðmundur Andri Ástráðsson v. Iceland, decided on 1 December 2020, provided the Grand Chamber of the European Court of Human Rights (ECtHR or the Court) with an opportunity to refine the concept of a “tribunal established by law”. This case addresses the issue of judicial appointments and the way the irregularities in this process can lead to a violation of the right to a fair trial.
The case concerned the irregularities in the procedure for the appointment of a judge of the newly-established Court of Appeal of Iceland. The Minister of Justice breached domestic law by removing from the list of fifteen candidates, assessed as the most qualified by the Evaluation Committee, four candidates and replacing them with four other candidates who had been ranked lower. The Minister had proceeded in that manner without an independent examination of the merits of the candidates in question and without substantiating her decision. Moreover, the Parliament had not held a separate vote on each candidate, as required by domestic law, but instead voted in favour of the Minister’s list en bloc.
In a judgment of 12 March 2019, a chamber of the ECtHR found, by five votes to two, that there had been a violation of the right to a fair trial as the judicial appointment procedure contravened the very essence of the principle that a tribunal must be established by law. The Grand Chamber in a judgment of 1 December 2020 also found a violation of Article 6(1) of the Convention, unanimously even. The Grand Chamber’s decisive test was whether there had been a “flagrant” breach of domestic law in the process of appointment of judges.
The Grand Chamber Judgment
In the case of Guðmundur Andri Ástráðsson v. Iceland, the ECtHR broadened the scope of the concept of a “tribunal established by law”. The Court’s case-law on the requirement of a “tribunal established by law” had predominantly concerned breaches of domestic rules directly regulating the competence of a tribunal to rule on a particular case, or of those rules which had immediate effects on the composition of a tribunal hearing an applicant’s case. In this case, the Grand Chamber had to answer the question of whether breaches of domestic law that have occurred at the stage of the initial appointment of a judge may violate the right to a "tribunal established by law".
The Court emphasized that a finding that a court is not a “tribunal established by law” might have considerable ramifications for the principles of legal certainty and irremovability of judges. Therefore, a balance must be struck between competing interests (§240). The Grand Chamber developed a threshold test and elaborated on three cumulative criteria to determine whether the irregularities in a judicial appointment procedure are of such gravity as to entail a violation of the right to a “tribunal established by law”:
1. A manifest breach of the domestic law - the breach must be objectively and genuinely identifiable as such;
2. The ability of the judiciary to perform its duties free of undue interference - breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as a judge who did not fulfill the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, must be considered to violate that requirement;
3. National courts’ interpretation and application of domestic law - the review conducted by national courts, if any, plays a significant role in determining whether such breach amounted to a violation of the right to a “tribunal established by law” unless their findings are arbitrary or manifestly unreasonable.
In the light of the three-step test, the Grand Chamber found the violation of the right to a fair trial. There was a manifest breach of the domestic law in two respects as acknowledged by the Supreme Court of Iceland: firstly, the Minister of Justice failed to provide adequate reasons for her departure from the Evaluation Committee’s proposal; secondly, Parliament did not comply with the special voting procedure.
According to the Court, the uncertainty surrounding the Minister’s motives raised serious doubts of irregular interference by the Minister in the judiciary and thus tainted the legitimacy of the whole procedure (§265). While the Minister was authorised to depart from the Evaluation Committee’s proposal, she had disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This procedural rule was an important safeguard to prevent the Minister from acting out of political or other undue motives (§288). Besides, Parliament did not fulfil its duty as the guarantor of the lawfulness of the appointment procedure. As a result, there had been a grave breach of a fundamental rule of the procedure for appointing judges.
Moreover, the Supreme Court of Iceland could not remedy the effects of the aforementioned irregularities on the applicant’s fair trial rights. Although there were legal guarantees in place to remedy the breach committed by the Minister, such as the procedure before Parliament and the judicial review by domestic courts, all those safeguards proved ineffective (§288).
The Grand Chamber noted that the irregularities in the appointment procedure were of such gravity that they undermined the very essence of the right to be tried before a tribunal established by the law. Having made that finding, the Court concluded that the remaining question as to whether the same irregularities had also compromised the independence and impartiality of the same tribunal did not require further examination (§295).
The Court emphasized that with the passage of time, the preservation of legal certainty will carry increasing weight in relation to the litigant’s right to a “tribunal established by law” in the balancing exercise that must be carried out (§252). Such approach has been criticized by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion, claiming that the manipulation of the appointment of a judge to a court in violation of the relevant eligibility criteria is an absolute procedural defect that cannot be remedied, neither by the passing of time nor by the acquiescence of the defendant.
The Grand Chamber considered that a finding of a violation could be regarded as sufficient just satisfaction and did not award non-pecuniary damages to the applicant. Besides, the Court stressed that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation to reopen all similar cases that have since become res judicata in accordance with Icelandic law (§314).
Consequently, it is up to the state to take appropriate measures to solve existing problems and to prevent similar violations in the future. This approach of the Grand Chamber was criticized by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion, suggesting that without clear instructions to the respondent State this judgment remains “a toothless, paper tiger”.
Therefore, despite its wider significance, this judgment did not provide tangible benefits to the applicant himself: neither the financial compensation nor reopening of the criminal proceedings was guaranteed by the Grand Chamber. The practical implication of the significant principles laid down in this judgment is dependent on the respondent State that is instructed “to draw the necessary conclusions from the present judgment”.
The Significance of the Grand Chamber Judgment beyond Iceland
The Grand Chamber’s judgment is significant in terms of clarifying the standards concerning the right to have one’s case heard by a tribunal established by law. It entails an important addition to the scope of this right and is expected to have important consequences: domestic courts are now under a Convention obligation to assess whether the judges have been appointed in conformity with the relevant legislative provisions.
The case of Guðmundur Andri Ástráðsson v. Iceland can have far-reaching implications beyond Iceland. As already pointed out, this judgment puts in question the Polish judicial reforms and whether decisions taken by Polish courts where judges were appointed by the new politically controlled National Council for the Judiciary can be regarded as decisions by a “tribunal established by law”.
Besides, this judgment might have a considerable impact on Georgia as well. In 2019, the selection procedure of the Supreme Court judges in Georgia was severely criticized. According to OSCE/ODIHR, the requirement for merit-based decision-making was seriously undermined by the use of secret votes throughout the process and the absence of a requirement for justification of the rankings and nominations.
As pointed out by the Grand Chamber in the case of Guðmundur Andri Ástráðsson v. Iceland, the absence of a manifest breach of the domestic rules on judicial appointments does not as such rule out the possibility of a violation of the right to a “tribunal established by law” (§ 245). There may be circumstances where a judicial appointment procedure that is seemingly in compliance with the relevant domestic rules nevertheless produces results that are incompatible with the object and purpose of the Convention right. The Grand Chamber emphasizes that it will defer to the national courts’ interpretation and application of domestic law – unless their findings are arbitrary or manifestly unreasonable.
As stressed by the Grand Chamber, it is inherent in the very notion of a “tribunal” that it is composed of judges selected based on merit – that is, judges who fulfill the requirements of technical competence and moral integrity to perform the judicial functions required of it in a state governed by the rule of law. It remains to be seen whether the appointments in the Georgian Supreme Court and several Polish courts will become the subject of the ECtHR consideration. The case of Guðmundur Andri Ástráðsson v. Iceland indicates the potential success of challenging these appointments in Strasbourg.
Friday, 8 January 2021
Friday, 18 December 2020