ECHR Inventing a Right: The Icelandic Case

Culture - April 16, 2024

The recent decision by the European Court of Human Rights in Strasbourg in a case on global warming brought by an association of elderly Swiss women is problematic, if not absurd, as I have previously argued here. The Court interpreted Article 8 in the European Convention of Human Rights which lays down the ‘right to respect for private and family life’ as including the ‘right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life’. The Court not only admitted the application of a special-interest association with no clear victim status, but also stretched the meaning of Article 8 beyond recognition, effectively inventing a new right. While the Strasbourg Court was originally established to decide whether harm done to a victim was a violation of the Convention, in this case it derived its decision mostly from speculations about a possible future harm. The Court seems to have been captured by an elite trying to impose its ideas on the democratically elected representatives of European nations. Indeed, the very name of the institution is an example of questionable appropriation: this is not a real court with the appropriate powers, but a consultative tribunal, set up to review allegations about violations of the Convention by the signatory states. Its opinions are not legal judgements, and hardly enforceable. To my comments about this recent Swiss case, I would like to add here a brief analysis of an Icelandic case where the Strasbourg Court also went far beyond its authority and simply invented a new right.

Minister of Justice or Rubber Stamp?

The Icelandic case concerned the appointment of judges to the Icelandic Court of Appeal (Landsrettur). After it had been decided in 2016 to establish this Court, 33 lawyers applied for its 15 judgeships. The applications were referred to an Evaluation Committee, which had two members nominated by the Supreme Court, one by the Judicial Council (representing district court judges), one by the Icelandic Bar Association and one by Parliament. According to a law about appointments to the Court of Appeal, the Minister of Justice, Sigridur Andersen, should as a general rule appoint as judges those assessed by the Evaluation Committee to be ‘most qualified’. The appointment of a judge who was ‘qualified’ but not ‘most qualified’, was only valid if ratified by Parliament. The Evaluation Committee concluded that 15 out of the 33 applicants were ‘most qualified’ for the 15 judgeships; the others were all ‘qualified’, but not ‘most qualified’. The Committee supported its conclusion in a report and by an evaluation table with twelve criteria to grade the applicants, with a miniscule difference, 0.03, between the outcomes of the 15th ‘most qualified’ and the 16th ‘qualified’ applicant. It was statistically almost impossible that on those twelve criteria exactly 15 applicants would be ‘most qualified’ for the 15 new judgeships. It was too perfect a fit. It was pretty obvious that the Evaluation Committee had tailored the conclusion in such a way that the Minister of Justice would have to appoint the 15 applicants it had selected. She was not to be left with any choice.

Sigridur Andersen however refused to be a rubber stamp for the Evaluation Committee. She decided to appoint 11 of the 15 recommended by the Assessment Committee and 4 applicants whom the Committee had assessed as ‘qualified’, but not ‘most qualified’. Her argument was that the Evaluation Committee had not given sufficient weight to judicial experience. She also pointed out, although it was not a part of her legal reasoning, that of the 15 applicants recommended by the Assessment Committee, 10 were men and 5 were women, whereas she appointed 8 men and 7 women. Her appointment of the 15 judges was ratified by Parliament, which voted on it as one proposal, as was customary with multipart proposals if nobody requested a separate vote on each part of the proposal.

Complaints by Rejected Candidates

Two of the unsuccessful candidates in the group of 15 recommended by the Evaluation Committee brought charges against the Icelandic state, demanding the annulment of the appointment of the 15 judges as well as damages for pecuniary and personal injury. The Reykjavik District Court rejected all their demands. But while the Supreme Court dismissed their demands for annulment of the appointments and for pecuniary damages, it awarded them damages for personal injury, arguing that the Minister of Justice had violated Icelandic administrative law by not carrying out a sufficiently thorough comparison of the competence of the 4 applicants she appointed from the group of ‘qualified’, but not ‘most qualified’, applicants, and the competence of the 4 applicants recommended by the Evaluation Committee and bypassed by the Minister. Although the Minister had not intended to cause any personal injury, the Supreme Court acknowledged, she should have been aware of the detrimental consequences for the 4 unsuccessful candidates of her decision to bypass them. The Court also found the voting procedure in Parliament to be defective. There should have been a separate vote on each candidate.

This judgement was implausible. The Supreme Court never described what would be a ‘sufficient investigation’ according to administrative law. Is judicial experience to which the Minister of Justice referred not an objective and reasonable criterion? (While some others invoked gender equality, perhaps less reasonably, she did not.) The voting procedure followed a long parliamentary tradition about multipart proposals: It was uncontested that it would not have made any difference if there had been fifteen votes instead of one; and if any member of parliament would have requested separate votes this would have been granted. It should also be pointed out that the Minister of Justice had gone against a committee with two out of five members nominated by the Supreme Court. Thus, the Supreme Court judges were partly assessing their own activities or those of their colleagues.

A Strange Test Case

The Court of Appeal had only been operating for a short time in 2018 when a case was brought before it which was eventually turned into a test case on the appointments issue. A 33-year-old man, Gudmundur Andri Astradsson, had in October 2016 been arrested and indicted for driving a car without a valid driver’s licence and under the influence of cocaine, causing a collision with another car. He was on parole and had behind him a series of convictions for driving under the influence of alcohol and narcotics and for trying once to smuggle a large amount (2 kg) of cocaine into Iceland. He pleaded guilty, and in the Reykjanes District Court he received a 17-month prison sentence. He appealed the judgement to the Court of Appeal. But on the advice of his lawyer, he requested that one of the three judges in the panel on his case would recuse herself, because she had been one of the 4 judges not recommended by the Evaluation Committee but appointed nevertheless by the Minister of Justice. Gudmundur Andri argued that he would not receive a fair trial under the European Convention of Human Rights because of the irregularities leading up to her appointment (in Icelandic there are normally no family names, only a given name and information about whose son or daughter you are: therefore the proper way to call the defendant is Gudmundur Andri, not Astradsson).

The Court of Appeal dismissed Gudmundur Andri’s request. He appealed to the Supreme Court which also dismissed his request, holding that despite flaws in the process of appointing the 4 judges in question, his right to a fair trial had not been violated by one of them sitting in the panel over him. Subsequently, he changed his pleadings before the Court of Appeal. He no longer pleaded guilty. Instead, he demanded to be acquitted and if not acquitted that his sentence would be reduced. The Court of Appeal however upheld his conviction by the District Court and so did the Supreme Court.

Gudmundur Andri’s lawyer, Vilhjalmur H. Vilhjalmsson, is a close friend of the Icelandic judge in the European Court of Human Rights in Strasbourg, Robert Spano (depicted above with President R. T. Erdogan during a controversial lecture tour to Turkey). On behalf of his client, Vilhjalmur applied to the Strasbourg Court which decided in 2019 that the right of Gudmundur Andri to a fair trial had been violated because one of the judges in the Court of Appeal had been illegally appointed. Five judges in the Second Chamber voted for this decision, Robert Spano from Iceland, Işıl Karakaş from Turkey, Ivana Jelić from Montenegro, Arnfinn Bårdsen from Norway and Darian Pavli from Albania. They found that the panel convicting Gudmundur Andri had not been ‘established by law’. They noted the judgements by the Icelandic Supreme Court that the Minister of Justice had violated administrative law by not investigating sufficiently the competence of the candidates for judgeships and that the Parliament had violated law by not voting separately on each candidate. Their decision was later confirmed by the Grand Chamber.

Implausible Decision

This was quite an implausible, if not absurd, decision by the Strasbourg Court. Gudmundur Andri had been caught in the act, ‘in flagrante delicto,’ committing a crime. He had initially pleaded guilty, and he had been convicted without any dissenting voices by one judge in the District Court, three judges in the Court of Appeal, and five judges in the Supreme Court. It was highly debatable if the one judge in the Court of Appeal had been appointed illegally, as noted previously. To insiders, it was clear that Robert Spano, a hard-working, popular judge, had used his great influence on the Court to obtain this extraordinary decision. He and his friend Vilhjalmur were both known left-wing opponents of the right-wing Icelandic Minister of Justice who was forced to resign because of the Strasbourg decision. Two judges of the Court, Paul Lemmens from Belgium and Valeriu Griţco from Moldova, dissented, arguing that the Icelandic Court of Appeal had indeed been ‘established by law’, even if the process might have been defective. They noted that the Icelandic Supreme Court had rejected the argument that the defects were sufficiently serious to disqualify the four judges who had been assessed by the Evaluation Committee as qualified, but not ‘most qualified’. The Supreme Court had therefore confirmed Gudmundur Andri’s conviction.

In this case, the Strasbourg Court clearly invented a right under the European Convention of Human Rights. It was the right of a convicted criminal to be heard by judges who were not only qualified but deemed ‘most qualified’ by an Evaluation Committee. Thus, the Strasbourg Court rejected the judgement of the Icelandic Supreme Court that had refused to disqualify one of the judges in the Court of Appeal panel and to invalidate the whole process. It went far beyond its assigned task, which was not to review judicial decisions in a signatory state, but in this case only to decide whether the right to a fair trial under the European Convention had been violated. It broke both the principles under which it is supposed to operate: the Principle of Subsidiarity, that political issues should be resolved at the most immediate or local level possible, and the Margin of Appreciation, that each signatory country to the Convention should have some discretion in applying and interpreting its articles and protocols.

What is Law About?

In this case, the majority in the Strasbourg Court in its zeal to reprimand the Icelandic government seems to have lost sight of what law is about. It is, among other things, about protecting innocent people from criminals who are dangerous to the public because they drive under the influence of narcotics. In its decision the Court did not even mention the long criminal record of the applicant, or the fact that he was on parole when arrested, or the fact that he caused a collision by his reckless driving. Indeed, during and after this case Gudmundur Andri continued his criminal career. In June 2017, he was arrested driving under the influence of amphetamine and metamphetamine. In September 2017, he was arrested again driving under the influence of amphetamine, cocaine and alcohol. In October 2017, he was arrested yet again driving a car under the influence of cocaine. When searching his home, the police found two illegal weapons, a Winchester rifle and a Franchi shotgun which had been stolen from a warehouse. He was convicted and sentenced to an eight-month prison. In January and April 2018 he was arrested for driving without a valid driver’s licence. In April 2020 he was arrested yet again, driving a car under the influence of alcohol, amphetamine and cocaine. He had behind him 15 breaches of various laws, and he was now convicted and sentenced to a twelve-month prison.

Citing an Irrelevant Case

Of course, even hardened criminals should enjoy the same rights under the law as law-abiding citizens. But people have lost all sense of proportion if they regard it as a fundamental flaw in the appointment of a candidate for a judgeship that while ‘qualified’, he or she got 0.03 points less than a ‘most qualified’ candidate, on an evaluation table submitted in an Excel document by an Evaluation Committee, as happened in Iceland. In this case, however, in its support the Strasbourg Court invoked two recent cases about lawful judges. The first one was about the Court of Justice of the European Free Trade Association, EFTA. According to the rules about the EFTA Court, each appointment of judges should be for a term of six years. The Norwegian government had however reappointed a judge for only three years. In an appeal to the Court from Liechtenstein this issue was raised. Before the case was heard, the Norwegian government revoked its former decision and reappointed the judge in question for six years.

In this case there was an easily identifiable breach of rules about judicial appointments, and an argument could be made, although somewhat far-fetched, that by arbitrarily shortening the term of a judge’s appointment a government had the means to influence him and other judges. But this was basically a procedural error which was simply corrected. In the Icelandic case there had not been any such easily identifiable breach of rules, but rather that the Supreme Court found that the Minister of Justice had not sufficiently investigated the competence of the four judges she appointed against the recommendations of the Evaluation Committee in comparison to the competence of the four judges recommended by the Committee and bypassed by the Minister. This was highly debatable, and if the Minister had anticipated this objection, she could easily have made a much more thorough investigation than she did. Moreover, if the Icelandic Parliament had anticipated the objection that the 15 candidates appointed by the Minister should have been voted on separately, but not as one proposal, then it surely would have voted on them separately, although this was not the usual practice and although it would not have made any difference.

Citing Another Irrelevant, but Interesting Case

The second case cited was about the General Court of the European Union, EU. An official of the European Council (not to be confused with the Council of Europe) had appealed to the Court a decision made about her by the Civil Service Tribunal of the European Union. She argued that one of the judges on the Tribunal had not been properly appointed. The story behind it was a bit complicated. In 2013, a call had been issued for applications to fill two vacant posts in the Tribunal. A selection committee had drawn up a list of the six ‘most suitable’ candidates where suitability was mainly defined as high-level experience, but also with a reasonably even geographical distribution of judges. In 2016, the European Council decided to extend the term of one judge and to appoint two more judges from the list drawn up after the 2013 call for applications. The appelant argued that the Council should only have appointed one judge from that list, as the call then was for applications to fill two vacant posts. Thus, when a third post became vacant upon the retirement of a judge from Spain, the European Council should not have drawn from the list. By doing this, it excluded possible applicants to this third post, for example individuals able for personal reasons to become judges in 2015, and not in 2014, or individuals from Spain like the retiring judge. The third judge, appointed to replace the judge from Spain, was therefore not a lawful judge and the decision of the Tribunal in which he sat had to be set aside.

Again, this case was not directly relevant to the Icelandic case. The Icelandic Minister of Justice did not choose from a list which had been drawn up in response to an earlier call for applications. She chose applicants who were all qualified according to the Evaluation Committee, and her appointments had been ratified by Parliament. But the case was noteworthy for two other reasons.

First, the criterion used by the selection committee in the European case was, besides a reasonably even geographical distribution, high-level experience. This was precisely the criterion the Icelandic Minister of Justice used when she decided to put more weight on judicial experience than the Evaluation Committee had done. (Arguably, also, a reasonably even gender distribution of judges in the Court of Appeal as the Icelandic Minister accomplished seems no less relevant than a reasonably even geographical distribution, although in her legal reasoning she did not refer to gender.)

In the second place, the selection committee for the European judges was required to submit to the Council a list of qualified applicants which would be double the number of positions to be filled. Thus, the Council would have some choice between the candidates. This also seems to be a reasonable requirement. But in the Icelandic case, the Evaluation Committee just presented a list of 15 applicants to fill the 15 vacant positions, claiming that precisely 15 of the 33 applicants were ‘most qualified’, no more and no less. This could not be a sheer coincidence. The Evaluation Committee was obviously trying to outmaneuver the Minister. The Strasbourg Court should have noted this.

Unaccountable Judges with Unlimited Power

In a free society an independent judiciary is necessary as one of the checks on legislative and executive power. But this does not imply that the power to appoint new judges should be held solely by sitting judges. Unlike government ministers, judges are not accountable to anyone. Therefore, the process of appointing them is crucial. Unlimited power is dangerous everywhere, not only if held by government ministers or high officials, but also if held by judges. It is liable to be abused, as it was in the case discussed here, where the judges in the European Court of Human Rights invented a non-existing right to be heard by a judge who had not only to be qualified but also recommended by colleagues. There can be no disagreement that only those deemed to be qualified should be appointed judges, and it can be little disagreement that the capacity to decide on qualifications to be a judge belongs to the legal profession in one capacity or another. But it also seems reasonable that the holder of executive power, with a mandate from the people, such as the Minister of Justice in Iceland or the European Council in Brussels, has some say also in the matter and that he or she should be able to choose between judges deemed qualified by the legal profession in a fair process. The rule of law means government of law, not men, not even judges.