Guest Post: The Recent Rise in ECtHR Inter-State Cases in Perspective

By Elif Erken & Claire Loven, PhD researchers at Utrecht University

 

Introduction 

For those with an interest in inter-State cases before the European Court of Human Rights (Court) January 2021 was an important month. In January 2021, the Court issued its admissibility decision in the inter-State case of Ukraine v Russia (RE Crimea) and its judgment on the merits in the case of Georgia v Russia (II). Such a start of 2021 is a fitting continuation of last year, where we have witnessed renewed attention for the inter-State complaint procedure with a rise in new inter-State cases being registered by the Court. In this blogpost, we assess this recent rise in inter-State cases (also discussed here and here) in light of the original aim and purpose of the inter-State procedure and consider the extent to which these recent cases can be seen to fall within that purpose. By further contexualising these cases within the inter-State typology as advanced by former president of the Court Dean Spielmann, we not only give more context to the recent rise in inter-State cases, we also consider whether all opportunities offered by the inter-State procedure are currently employed. We continue by firstly elaborating on the historical context and original aim of the inter-State procedure. Thereafter, we focus on the recent inter-State cases as well as Spielmann’s typology. We end by shedding some light on possible future usages of the inter-State procedure.

 

Setting the stage: historical background 

 

The Convention was drafted in the years after the Second World War, which had provided horrific examples of how States can misuse their power and deeply violate individuals’ dignity, autonomy and freedom. In those early drafting years, the fear of a communist threat coming from Eastern Europe was, moreover, existent in democratic Europe. With these circumstances in mind, the Convention system was envisaged to function as a ‘rampart against tyranny and oppression’ and as an ‘alarm-bell’ for democratic Europe (see extensively Bates 2010). Originally, the inter-State complaint procedure was the primary collective enforcement mechanism for ensuring that the Convention could fulfill these functions. When the Convention entered into force in 1953, the inter-State procedure was a mandatory requirement for the States ratifying the Convention while, at that time, the right of individual petition was only optional.

 

The inter-State complaint procedure was supposed to function as a mechanism allowing Convention States to collectively guarantee the rights and freedoms enshrined in the Convention (see also the Preamble). Put more concretely, an inter-State case was not to be regarded as ‘exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe’ (Austria v Italy EComHR 11 January 1961). This also entails that the inter-State procedure was meant to have an objective character. Its aim is to protect the fundamental rights of individuals against violations by Convention States, rather than to implement mutual rights and obligations between Convention States (see also Ireland v the UK ECtHR 18 January 1978).

 

Although the inter-State procedure was not meant to enforce States’ own rights, it should be noted that the drafters of the Convention had foreseen that, because of political reasons or sensitivities, Convention States would be reluctant to bring a complaint against another Convention State when they did not have a special interest in the case. That States are in practice more inclined to bring a case before the Court when they have an interest of their own is reflected in the inter-State cases brought before the Court more recently, as is further discussed below.

 

Recent rise in inter-State cases

 

Ever since the first inter-State case was lodged in 1957, that is, Greece v the UK which concerned alleged violations of Convention rights in Cyprus, the overall rate of inter-State cases before the Court has been low. Yet, although such cases are rare, they do constitute an important aspect of the Court’s case law. Interestingly, in the year 2020, the Court was seized by numerous States with questions regarding Convention compliance by other States, demonstrating a rise of inter-State applications. Currently, there are ten such cases pending before the Court, with six applications introduced in the year 2020. These recently introduced cases range from those addressing an impending extradition of a Latvian national, detained in Denmark, to South Africa (see, Latvia v Denmark, resolved after the Latvian national was returned to Latvia) to the inter-State application of Liechtenstein v the Czech Republic, where the former complained of alleged breaches of property rights of Liechtenstein citizens. Yet, quite a number of the recently introduced cases are born out or related to situations of crisis and conflict. For example the case of the Netherlands against the Russian Federation, lodged in 2020 as well (discussed here, here and here), concerns the downing of flight MH-17 over Eastern Ukraine, which resulted in the death of all those aboard the plane, the majority of which were Dutch citizens. Similarly, the Court received several requests for interim measures in the context of inter-State applications concerning the situation in the Nagorno-Karabakh region.

 

As noted in the introduction above, the Court has, in January 2021, taken two important decisions regarding the inter-State cases of Ukraine v Russia (RE Crimea) and Georgia v Russia (II). The Court’s partial admissibility decision in the case of Ukraine v Russia (RE Crimea) paved the way for a judgment on the merits. In this case, which addresses events in Crimea in 2014 and 2015, Ukraine alleges that the Russian Federation ‘had exercised extraterritorial jurisdiction over Crimea and had been responsible for an administrative practice entailing numerous violations of the Convention’ (para 7 of the judgment). Although the Court refrained from engaging with the question of whether the admission of Crimea into Russia had been lawful, as it had not been ‘called upon’ to do so, it does decide on a number of other aspects. Most importantly, it found that Russia had jurisdiction on the basis of effective control it exercised over Crimea. As such, Russia is considered to have jurisdiction over Crimea and consequently, the Court decided it has competence to examine the complaints raised (paras 276-352). Further, the Court rendered its decision in Georgia v Russia (II), thereby addressing the armed conflict that took place in August 2008, between Georgia and the Russian Federation. Albeit with many separate opinions, the Court decided on the questions of jurisdiction of the Russian Federation during both the active phase (no jurisdiction) and after-math of hostilities (jurisdiction). In the respect of the latter, it identified numerous violations, including of Articles 2 and 3 of the Convention.

 

The Court thus cleared one inter-State case off its docket, and opened the door for a new one. Coupled with the recently introduced cases, the Court will continue to be pre-occupied with cases concerning (military) conflict in the years to come.

 

Spielmann’s typology of inter-State cases

 

A few years ago, the President of the Court at the time, Dean Spielmann, advanced a ‘basic typology’ for inter-State cases. He distinguished two types of inter-State cases in this respect, though noting that these typologies may converge, and are not all-encompassing. His first category concerned those inter-State cases where ‘the applicant State is in effect standing in the place of the direct victims of a violation of human rights’, thereby referring to this type of case as ‘a form of subrogation’. As an example of such a case, Spielman noted the Cyprus v Turkey cases. This type of inter-State case can now be seen in the above-mentioned case of Liechtenstein and the three discussed cases against Russia. For example, with regard to the Dutch inter-State case concerning MH-17, the Dutch government stated that the Netherlands aims to share and make available all relevant information regarding the downing of this flight with the Court, and thereby also provide full support the individual cases by the victims’ next of kin that are also pending before the Court concerning this event; in which the Netherlands also acts as a third-party intervener.

 

The second category noted by Spielman concerned those cases regarding the vindication of the European public order, that is, ‘action taken by one or more States […] seeking to uphold the rights that are the benchmark of the modern democratic state’. As such, this type of case appears mostly in line with the purpose of the inter-State procedure as originally seen by the Court (or Commission) itself, as was noted above. Yet, the cases for which the Court has most recently been seized do not necessarily seem to fall within this category. Although the European Convention system has experience with this type of cases, most notably the First Greek case that was lodged by the Nordic States of Denmark, Norway, Sweden and by the Netherlands. In that case, the applicant States condemned the human rights violations committed by the Greek government, but no such cases have recently been introduced.

 

Conclusion

 

The recent rise in inter-State cases seems to mainly concern those cases born out of (military) conflict between States. These cases can be considered to fall in Spielmann’s first category of inter-State cases as the applicant State is in effect standing in the place of the direct victims of a violation of human rights. It will be interesting to see if this recent rise in inter-State cases continues, and if so, if States are willing to also consider the original aim of the inter-State procedure, that is, complaints about violations of the public order of Europe. Such cases are not alien to the Court, as noted by Spielmann in his typology, and presently, there are situations in Europe that prima facie appear to lend themselves for such complaints regarding violations of the public order of Europe – one can think here of Poland, and Hungary, for instance. However, it has to be awaited if States appear willing to take this route in the future. If so, the recent rise in inter-State cases might not only continue, but also diversify.

New ECHR Readings

Please find below a new selection of academic publications from the last few months, related to the European Court of Human Rights, the Convention and other directly related topics:·    

The latest volume of the European Yearbook on Human Rights (Vol. 2020) is out, with special attention to the rights of the child. The content relating to the ECHR is the following:

* Linos-Alexander Sicilianos, ‘The European Convention on Human Rights at 70: The Dynamic of a Unique International Instrument’, p. 3

* Lorenzo Acconciamessa, ‘Bringing the Child’s Procedural Rights before the ECtHR through Interpretative Tools: Access to Justice, Participation and Representation’, p. 49

* Lydia Bracken and Conor O’Mahony, ‘The Child’s Right to Family Life: Shifting Sands and Social Science’, p. 79

* Evelyn Merckx, ‘The ECtHR on Parental Authority and Contact aft er Separation: Towards a More Child-Centred Perspective?’, p. 97

* Anette Faye Jacobsen, ‘Principles and Politics in Compulsory Adoption Cases in the European Court of Human Rights: Th e Right Balancing of Rights’, p. 135

* Rebecca Thorburn Stern, ‘The Image of the Vulnerable Migrant Child in Recent ECtHR and CRC Committee Case Law’, p. 233

* Marie Spinoy and Kurt Willems, ‘Inclusive Education in Strasbourg: Still Learning?’, p. 281

* Stefan Kieber, ‘The Jurisprudence of the European Court of Human Rights in 2019’, p. 593.

Other publications:

* Ergul Celiksoy, ‘‘UK exceptionalism’ in the ECtHR’s jurisprudence on irreducible life sentences’, International Journal of Human Rights (Vol. 24, no. 10, 2020): 

'The ECtHR’s judgment in Hutchinson v. the United Kingdom brought into question whether the ECtHR was weakening the general principles on irreducible life sentences, and specifically, whether it was applying them more leniently to the United Kingdom (UK). Recent judgments delivered in Matiošaitis and Others v. Lithuania and Petukhov v. Ukraine (No. 2) have demonstrated that the ECtHR has aligned itself with its pre-Hutchinson jurisprudence by adopting a strict scrutiny of the review mechanisms of life sentences in Lithuania and Ukraine. Although this suggests that the general principles were not watered down, the concern about UK exceptionalism in the ECtHR’s jurisprudence on irreducible life sentences has been raised. This paper therefore examines to what extent the ECtHR carried out a softer application of the relevant principles pertaining to an effective and meaningful review mechanism as regards whole life sentences in Hutchinson and discusses why this suggests a UK exceptionalism in the ECtHR’s jurisprudence on irreducible life sentences. In contrasting the ECtHR’s judgments in the cases of Hutchinson, Matiošaitis and Others and Petukhov, this paper argues that with the suspicion of the application of the Convention with ‘double standards’, the ECtHR’s vulnerability to strong political responses risks damaging its legitimacy.'

* Wayne Sandholtz, ‘The ECtHR, transregional dialogues and global constitutionalism’, Global Constitutionalism, vol. 9, no. 3 (2020), pp. 543-551:

'This article is a preliminary attempt to evaluate signs of movement toward global rights review. A multi-level charter of rights exists in the network of international and regional human rights treaties and in national constitutions. An incipient structure of global rights review exists in the form of the regional human rights courts, which see themselves as trustees of the larger global human rights system. Judicial dialogue among the regional courts allows for informal, decentralized coordination among them. The European Court of Human Rights serves as a point of reference for the African and Inter-American systems, though these also cite each other. Transregional judicial dialogue establishes a rudimentary, informal and decentralized mechanism of coordination among bodies that exercise a review function in the multi-level system of international human rights.'

* Garrett Wallace Brown & Mads Andenas, ‘The European Convention of Human Rights as a Kantian cosmopolitan legal order’, Global Constitutionalism, vol. 9, no. 3 (2020) pp. 490-505:

'The authors argue that there has been the emergence of, and increasing prospects for, a cosmopolitan legal order based on the Convention. This symposium aims to engage with, and to better explore, the theoretical implications and practical legal ramifications of their argument. In doing so, this first article acts as a general introduction to the symposium, laying out the major arguments of the book as well as arguments presented by the symposium contributors. Moving beyond the summative, this introduction also situates A Cosmopolitan Legal Oder within broader debates in global constitutionalism, while defending its use of Kant’s cosmopolitan theory. Lastly, it explores some of the key implications and challenges that arise from the symposium itself, rooting these insights within the current context of anti-globalism, nationalism, populism and neo-sovereigntism, and the corresponding necessity for a more transitional and pluralistic response as offered in A Cosmopolitan Legal Order.'

* Øyvind Stiansen & Erik Voeten, ‘Backlash and Judicial Restraint: Evidence from the European Court of Human Rights’, International Studies Quarterly, vol. 64, no. 4 (2020), pp. 770–784:

 

'How does backlash from consolidated democracies affect the behavior of liberal international institutions? We argue that liberal international institutions have incentives to appease their democratic critics. Liberal institutions rely on democratic support for their continued effectiveness and can accommodate democratic critics at a lower legitimacy cost than non-democratic challengers. We examine this theory in the context of the European Court of Human Rights using a new dataset of rulings until 2019 and a coding of government positions during multiple reform conferences. Combining matching and a difference-in-differences design, we find strong evidence that the Court exercises restraint towards consolidated democracies that have criticized the Court in multilateral reform conferences by rendering fewer violation judgments against these states. We find some evidence that governments have also recently appointed more deferential judges. The findings suggest that backlash can affect liberal international institutions even without membership exit.'

* Stuart Wallace, ‘Derogations from the European Convention on Human Rights: The Case for Reform’, Human Rights Law Review, vol. 20, no. 4 (2020), pp. 769–796:

'This article examines State practice on derogations from human rights protection during states of emergency under Article 15 of the European Convention on Human Rights. The article presents statistical data on the use of derogations, offers analysis of the data and practice and advances a series of reform proposals. It is argued that Article 15 is being misused by States to derogate for protracted periods of time for entrenched emergencies and that emergency measures are remaining in place after declared emergencies have ended. Equally, States are not derogating in circumstances where they should for military operations, particularly extra-territorial military operations. It is argued that the European Court of Human Rights has been deferential in enforcing Article 15 and that reform is needed to address the problems identified. Reforms should include review procedures for emergency measures, enhanced procedures for notifying derogations and an amendment to facilitate extra-territorial derogations.'

* Milka Sormunen, ‘Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights’, Human Rights Law Review, vol. 20, no. 4 (2020), pp. 745–768:

'According to Article 3(1) of the United Nations Convention on the Rights of the Child, the best interests of the child have to be a primary consideration in all cases concerning children. The Committee on the Rights of the Child understands Article 3(1) as a ‘threefold concept’: a substantive right, an interpretive principle and a rule of procedure. This article argues that the provision is best understood as a procedural obligation. Understanding Article 3(1) as a procedural obligation remedies key problems that originate from interpreting the provision as a substantive right. A significant strength of the procedural approach is that it can be consistently applied in different case groups. This article illustrates the argument with the case law of the European Court of Human Rights related to children, in which the article detects three layers of a procedural approach to the best interests of the child.'

Carola Lingaas, ‘Domestic Violence in Child Protection Cases before the European Court of Human Rights: Double Victimisation of Abused Parents?’, Nordic Journal of Human Rights, vol. 38, no. 2 (2020), pp. 122-140.

'In a number of child protection cases, the European Court of Human Rights (ECtHR) has concluded that the child should remain in foster care or can be forcibly adopted because of the history of domestic violence between the parents, even when the abused parent has been found to be capable of child care. In the cases examined here, the ECtHR did not take into consideration the situation of the parent who experienced intimate partner violence. On the contrary, that parent's inability to leave an abusive relationship was used as an argument against reunite child and parent. This practice raises the question of whether the interpretation of the ‘best interests of the child’ principle has gone too far, at the expense of the right to family life of the abused parent who thus suffers double victimisation – as a victim of domestic violence, and as a victim of the Court’s jurisprudence that accepts the severance of family ties.'

* Eduardo Gill-Pedro, ‘Proportionality and the Human Rights of Companies Under the ECHR – Whose Interests are at Stake?’, Nordic Journal of International Law, vol. 89, nos. 3-4 (2020), pp. 327–342:

'This article considers whose interests may be at stake when a company claims its human rights under the European Convention on Human Rights (echr). In order to do that, the article will first investigate whether it makes sense to conceive of companies as persons capable of having their own interests. It finds that it is possible to do so. The article proceeds to analyse the case law of the European Court of Human Rights (ECtHR) in respect of claims regarding their companies’ right to property, free expression and respect for home, considering whether, when the Court assesses the proportionality of the alleged interference, it is the interests of the company claiming the rights that are at stake. The article concludes it is possible to understand the case law of the court as not necessarily placing the interests of the company in the balance when assessing the proportionality of interferences with the Convention rights of companies. The article suggests that such an understanding is normatively desirable if we consider human rights as instruments for the protection of human beings.'

And, finally, the December 2020 issue of the French-language Revue Québécoise de Droit International: was entirely dedicated to the European Convention of Human Rights at the occasion of the Convention's 70th anniversary.

Training on the Freedom of the Media for Civil Servants

The ‘Matra Rule of Law Training Programme’ offers a training on the Freedom of the Media for civil servants working on the media law or policy from the Western Balkans countries, Georgia, Moldova, Turkey and Ukraine. The training is fully financed by the Dutch Government and is delivered by the Leiden Law School, the Netherlands Helsinki Committee, and the Hague Academy for Local Governance. The training will take place online from 1 March until 2 April 2021, and the application deadline is 24 January. More details about the application process can be found here. 

 

The focus and aims of the training are described below by the organisers:

 

“Freedom of expression and media freedom are crucial for every democratic society. Journalists and the media keep the public informed on matters of general interest to society. They act as public watchdogs who hold governmental authorities and other powerful forces in society to account. They expose wrongdoings and corruption. They provide shared spaces for public debate. In order to perform these roles, journalists and the media need to enjoy strong legal protection.

 

Such protection is provided by Article 10 of the European Convention on Human Rights and Article 11 of the EU Charter of Fundamental Rights, which guarantee freedom of expression and information for everyone. The freedom enjoyed by the media, which is based on these articles, is not unlimited. It is governed by duties and responsibilities. It is also subject to certain limitations imposed by law, for example to protect children from harmful content and to prevent the spread of hate speech. These and other themes will be examined in the training programme, including the safety of journalists (with a special focus on female journalists), minorities and the media, and the thorny question of online disinformation. While the central focus will be on the media, there will be wider attention for the range of other actors in the online communications environment, such as platforms and social media.

 

The training programme aims to increase understanding of the European regulatory and policy standards relating to the concepts of media freedom and the right of the public to be properly informed. Presentations on Dutch and European experiences in dealing with these issues will encourage the participants to reflect on the situation in their own countries, to identify areas for reform and to nurture exchanges on practices in other countries. Special attention will be paid to obstacles and dilemmas in the implementation process and how to overcome them.”

 

Training on ECtHR Judgments Implementation in Russia

As part of a series of trainings, the European Implementation Network (EIN) and the Netherlands Helsinki Committee (NHC) have issued a call for applications (in Russian here) by non-governmental organisations (NGOs), human rights defenders and human rights lawyers to participate in a training on advocating for full and effective implementation of judgments of the European Court of Human Rights in Russia. The training itself will take place halfway April and you can apply for it before 29 January. This is the full information, provided by the organisers:

'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. 

When? 

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: hrd@nhc.nl .

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!' 

Online ERA Course on ECHR: Human Rights in Times of Emergency

The European Law Academy (ERA) is organising one of its famous courses for professionals online on the theme of 'Human Rights in Times of Emergency' on 28 and 29 January. The course will go into 'current challenges posed by COVID-19 to individual human rights with a critical overview of the restrictions of human rights possible under the European Convention on Human Rights in times of emergency. It will also provide an opportunity to exchange best practices.' It is geared towards judges, prosecutors, lawyers in the private and public sector. This is the full programme:

I. RESPECT FOR HUMAN RIGHTS AND THE RULE OF LAW IN TIMES OF EMERGENCY

• 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

II. ACCESS TO COURTS AND FAIR TRIAL GUARANTEES DURING COVID-19

• 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

III. OTHER SELECTED HUMAN RIGHTS AFFECTED BY THE PANDEMIC

• 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

Spots are still available and you can register here.

Guest Post on Guðmundur Andri Ástráðsson v. Iceland: Breach of Domestic Law on Judicial Appointments Violated the Right to a Fair Trial

By Ketevan Kukava, head of Rule of Law and Human Rights Direction, IDFI

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. 

Mr Guðmundur Andri Ástráðsson, the applicant, was convicted by the District Court of Iceland for violating the Traffic Act. His case came before the newly established Court of Appeal of Iceland. The panel was composed of three judges, including A.E., who was one of the four judges who had been proposed by the Minister of Justice for appointment to that court. The applicant requested that A.E. withdraw from the case due to the irregularities in the procedure leading to her appointment as a judge. This motion was rejected and the Court of Appeal upheld the District Court’s judgment.

The Supreme Court of Iceland acknowledged that the judge’s appointment had been irregular. However, it held that these irregularities could not be considered to have nullified the appointment and that the applicant had received a fair trial.

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".

According to the Court, the process of appointing judges constitutes an inherent element of the concept of “establishment” of a court or tribunal “by law” (§227). A tribunal that is not established in conformity with the intentions of the legislature will lack the legitimacy required in a democratic society to resolve legal disputes (§211).

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. 

A New Year, A New Look for the ECHR Blog

As the new year of 2021 is starting, it is time for renewal. For this blog, this renewal already started last September with the extension of the editorial team. Now, in the thirteenth year of existence of this blog, we have decided to give it a new look. The blog now has a new logo that encapsulates in 'Council of Europe'-blue our visual identity. We are very grateful to graphic designer Yll Rugova for developing this new logo for us. In addition, we have also made some other, more subtle changes to the blog's look and feel for increased readability. 

As always, let us take the opportunity to thank you - all our readers - for your interest in our blog. Over the past extraordinary year, visitor numbers have increased once more to 245.000 in 2020 and 2.8 million since the blog's creation. It may come as no surprise that our most read post of last year was the analysis of Covid-19 responses and ECHR requirements, a guest post by dear colleague Jeremy McBride. 

We also thank our readers for conveying crucial information and updates to us and for submitting guests posts or other ideas, which we also warmly welcome in the year to come!

Let us end by wishing each of you a better year than the previous one, for your health, for the world, and for human rights,

Antoine Buyse and Kushtrim Istrefi