Tribunal established by law
RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICEDomestic lawIcelandic Constitution Domestic lawIcelandic Constitution Icelandic Constitution Domestic lawIcelandic Constitution Icelandic Constitution Icelandic Constitution 101. The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) read as follows: Article 2 “ Althingi and the President of Iceland jointly exercise legislative power. The President and other governmental authorities referred to in this Constitution and elsewhere in the law exercise executive power. Judges exercise judicial power.” Article 59 “The organisation of the judiciary can only be established by law.” Article 60 “Judges settle all disputes regarding the competence of the authorities. No one seeking a ruling thereon can, however, temporarily evade obeying an order from the authorities by submitting the matter for judicial decision.” Article 61 “In the performance of their official duties, judges shall be guided solely by the law. Those judges who do not also have administrative functions cannot be discharged from office except by a judicial decision, nor may they be transferred to another office against their will, except in the event of reorganisation of the judiciary ...” Article 70 “Everyone shall, for the determination of his rights and obligations or in the event of criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the determination of an independent and impartial court of law. A hearing by a court of law shall take place in public, unless the judge decides otherwise as provided for by law in the interest of morals, public order, the security of the State or the interests of the parties. Everyone charged with criminal conduct shall be presumed innocent until proven guilty.” The Judiciary Acts (a) Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level 102. Section 5 of Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level ( Lög um framkvæmdarvald ríkisins í héraði ), which concerned the appointment of a committee to evaluate the competencies of candidates for posts of judge at District Courts, provided as follows: “... The Minister of Justice shall appoint a committee every four years, to evaluate the competencies of candidates for the post of District Court judge. The committee shall be composed of three members, one of whom shall be nominated by the Supreme Court and shall serve as chair of the committee. The Association of Judges shall nominate another member of the committee from amongst District Court judges and the Bar Association shall nominate the third from amongst practising lawyers. The same parties shall nominate reserve members of the committee. The committee shall give written and reasoned evaluations of the candidates to the Minister of Justice. The Minister of Justice shall set out more detailed rules on the work of the committee.” (b) Judiciary Act no. 15/1998 103. The relevant provisions of the former Judiciary Act ( Lög um dómstóla ), as amended by Act no. 45/2010, read as follows: Section 4a “The Minister shall appoint an Evaluation Committee of five members to examine the qualifications of candidates for the office of Supreme Court judge or District Court judge. Two members shall be nominated by the Supreme Court, of whom one shall serve as chair; at least one of the two shall not be in active service as a judge. The third member shall be appointed by the Judicial Council and the fourth by the Icelandic Bar Association. The fifth member shall be elected by Althingi. ... The Evaluation Committee shall provide the Minister with a written and reasoned report concerning candidates for the office of Supreme Court judge. The report of the Evaluation Committee shall state the board’s view as to which candidate is best qualified for the post; the board may rank two or more candidates equally. In other respects, the Minister shall establish further rules on the functions of the board. No candidate may be appointed to the office of judge whom the Evaluation Committee has not designated as the most qualified of the candidates, whether alone or equally ranked with others. However, derogation from this condition is permitted if Althingi adopts a motion of the Minister to appoint another named candidate who, in the opinion of the Evaluation Committee, meets all the requirements laid down in the second and third paragraphs of section 4. The Minister shall in such circumstances place the motion before Althingi within two weeks from the time of submission of the Evaluation Committee’s opinion or within two weeks from the time when Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time when it is placed before Althingi, otherwise the Minister will be bound by the opinion of the Evaluation Committee.” Section 12 “3. The provisions of section 4a shall apply, mutatis mutandis, to appointments to District Court judge posts.” 104. As already noted in paragraph 14 above, the preparatory material in respect of Act no. 45/2010 indicates that the amendments to the judicial appointment system in Iceland had aimed to further ensure the independence of the judiciary, having regard to the significant role played by the judiciary in securing fair trial rights and maintaining the checks and balances inherent in the separation of powers. The preparatory material also provides the following information on the assessment of the work experience of candidates for judicial posts, in so far as relevant: “... When evaluating the competencies of candidates, several factors have to be taken into account, including experience of legal work, be it judicial work, litigation, other legal practice, academic work or work in the administration, but in general a candidate should possess a broad, general legal education and expertise. Other work undertaken by the candidates on the side should also be taken into account, such as membership of administrative committees or other related experience which will come into good use for a candidate. In general, it should be considered an asset for a candidate to have varied work experience, although that has to be assessed in each case. The committee should also look to and specifically seek out testimonials of a candidate’s work and whether he or she is efficient and hard-working, whether he or she has the ability to identify key issues and to present his or her opinion in an understandable way, both in writing and verbally. In this regard, it is possible to look to academic writing, a candidate’s experience with litigation or any judgments which a candidate may have written ...” (c) Judiciary Act no. 50/2016 105. The relevant provisions of the new Judiciary Act ( Lög um dómstóla ) read as follows: Section 11 Evaluation Committee on the Qualifications of Candidates for Posts as Judges “The Minister shall appoint five principal members and as many reserve members to an evaluation committee to examine the qualifications of applicants for the office of Supreme Court judge, Court of Appeal judge or District Court judge. One member shall be nominated by the Supreme Court and shall serve as chair of the committee. One member shall be nominated by the Court of Appeal. The third member, who shall not be a serving judge, shall be nominated by the Judicial Administration and the fourth member shall be nominated by the Icelandic Bar Association. The fifth member shall be elected by Althingi. Each nominating party shall nominate a man and a woman, both as member and as reserve member, but this may be deviated from if objective reasons prevent the nomination of both a man and a woman. The nominating party shall then substantiate such impossibility. The Minister shall, when appointing members to the committee, ensure compliance with the Equality Act’s provisions on appointment to councils and committees. The term of appointment to the evaluation committee is five years, with the proviso that the term of one member shall expire each year. The same member cannot be appointed as a principal member of the board for more than two consecutive terms. The evaluation committee shall be based on the premises of the Judicial Administration.” Section 12 The Evaluation Committee’s Opinion and the Appointment of Judges “The evaluation committee shall provide the Minister with a written and reasoned opinion concerning applicants for the office of judge. The opinion of the evaluation committee shall state the board’s position regarding which applicant is best qualified for the post; the board may rank two or more applicants equally. In other respects, the Minister shall establish further rules on the functions of the committee. No applicant may be appointed to the office of judge which the evaluation committee has not designated as the most qualified of the applicants, whether alone or equally ranked with others. However, derogation from this condition is permitted if Althingi accepts a proposal by the Minister to appoint another identified applicant, provided that, in the opinion of the evaluation committee, they meet all the requirements for appointment to the post. The Minister shall in such circumstances put the motion before Althingi within two weeks from the time of submission of the evaluation committee’s opinion or within two weeks from the time when Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time when it is put before Althingi, otherwise the Minister will be bound by the opinion of the evaluation committee.” Section 21 General Qualification Requirements “The Court of Appeal shall be composed of 15 judges, appointed for an indefinite period of time by the President of Iceland as proposed by the Minister. Only a person who fulfils the following conditions may be appointed to the office of Court of Appeal judge; he or she must: 1. have attained the age of 35 years; 2. be an Icelandic national; 3. have the necessary mental and physical capacity; 4. be legally competent to manage his or her personal and financial affairs, and never have been deprived of the control of his or her finances. 5. have not committed any criminal act considered to be dishonourable in public opinion, or evinced any conduct detrimental to the trust that persons holding judicial office generally must enjoy; 6. have completed the can.jur. examination or B.A. examination in law together with a master’s degree; 7. have for a term of no less than three years been a district court judge, attorney before the Supreme Court, full professor or associate professor of law, commissioner of police, district commissioner, public prosecutor, permanent secretary of a ministry, director general of a department of the Minister or Althingi ’s Ombudsman, or have for such period discharged a similar function providing similar legal experience; 8. be deemed capable of holding the office in the light of his or her career and knowledge of law. A person who is, or has been, married to an Appeal Court judge already in office, or a person related to such judge by blood or marriage by ascent or descent, or to the level of second cousin, may not be appointed to the Court of Appeal.” Section 43 Independence of Judges “Judges are independent in their judicial work and shall perform such work under their own responsibility. In their resolution of a case they shall be guided solely by the law and never act under instructions from others. A judicial act will not be reviewed by others except through an appeal to a higher court. ...” Section IV (temporary provision) “Nomination of judges of the Court of Appeal shall be completed no later than 1 July 2017 and the judges shall be appointed to office with effect from 1 January 2018. As provided for in section 4a of Act no. 15/1998 on the Judiciary, a committee shall be established to investigate for the first time the qualifications of candidates for the office of judge of the Court of Appeal. The committee shall provide the Minister with its opinion about the candidates in conformity with the second subsection of the same section and of the regulation that applies to the committee. The Minister is not authorised to appoint an individual to the office of judge whom the Evaluation Committee has not deemed to be the most qualified amongst the candidates, either separately or among others. This provision may be departed from, however, if Althingi accepts a proposal by the Minister on an authorisation to appoint to the office of judge another named candidate who, in the opinion of the Evaluation Committee, meets all the conditions of the second and third paragraphs of section 21 hereof. When the Minister proposes appointments to the office of judge of the Court of Appeal for the first time, he/she shall submit her proposal regarding every appointment to Althingi for approval. If Althingi accepts the Minister’s proposals, he/she shall send them to the President of Iceland, who formally appoints the judges (see section 21). If Althingi does not accept the Minister’s proposal regarding a particular appointment, the Minister shall present a new proposal to Althingi for approval. ...” 106. The preparatory material regarding temporary provision IV provides the following, as relevant: “...Secondly, it is proposed that before the Minister appoints judges to the Court of Appeal for the first time, he/she should make a proposal regarding each appointment to Parliament for approval. In the light of the fact that 15 judges will be appointed simultaneously, it is natural to ensure the participation of more than one of the public powers in that process.” Minister of Justice’s Rules no. 620/2010 on the work of the Evaluation Committee 107. The relevant provisions of the Minister of Justice’s Rules no. 620/2010 on the work of the Evaluation Committee, which assesses the competencies of applicants for judicial posts ( Reglur um störf dómnefndar sem fjallar um hæfni umsækjenda um dómaraembætti ), read as follows: Section 3 “When the application deadline has expired the Minister examines whether the candidates fulfil all the general conditions of qualification for the judicial office which was published in accordance with the Judiciary Act no. 15/1998. Then the applications fulfilling the conditions are sent to the Evaluation Committee for assessment.” Section 4 “In its opinion the Committee shall decide who is/are the most qualified candidate/s to be appointed to the judicial office. The Committee shall make sure that in its evaluation equality is respected. The conclusion shall stem from an overall assessment based on objective considerations and on the candidates’ merits, taking account of the candidates’ education, experience, integrity, competence and professional efficiency, as described, inter alia, in more detail below: 1. Education, career, theoretical knowledge. When evaluating the candidate’s education, career and theoretical knowledge, the Committee shall lay emphasis on the fact of the candidate having a varied background in the fields of law such as experience as a judge, litigation or other type of legal practice work, work in administration or academic work. The candidate should have general and comprehensive legal knowledge and education. It should also be considered whether the candidate has undergone further education. 2. Secondary activities and social activities. The Committee shall also take into account the candidate’s secondary activities, such as activities in appeals committees or other activities which could be useful for a judge. The Committee can also take into account extensive participation in social activities. 3. General competence. The Committee shall take into account whether the candidate has shown independence, impartiality, initiative and efficiency in his or her work and whether the candidate can easily extrapolate upon the key issues. It is optimal for the candidate to have management experience. The candidate shall have good knowledge of the Icelandic language and ability to communicate easily both verbally and in writing. 4. Special competence. It is important for the candidate to have good knowledge of civil and criminal procedures and to follow the provisions of law when drafting judgments, which also requires good use of language. The candidate has to be able to conduct hearings firmly and fairly and process the cases he/she is assigned quickly and with confidence. 5. Mental capabilities. The candidate has to be able to communicate easily, both with colleagues and other people he/she encounters at work. The candidate must have a good reputation both from his or her previous work and from outside work and must be dependable.” Section 5 “The candidate’s application for the judicial office advertised, along with the rules that apply to it, shall be the basis upon which the Committee makes its evaluation. The Committee shall make sure that the matter is in all other aspects sufficiently investigated before giving its opinion on a candidate’s qualifications. In its evaluation, in accordance with section 4, the Committee can take into account all published works of the candidates, such as scholarly writing, judgments, decisions and the like, even where they have not been submitted with the application. The candidate does not need to be specifically notified in advance. The Committee can invite the candidates for an interview and request necessary documents in addition to those submitted with their application and the Committee can base its evaluation, under section 4, on the documents. The Committee can obtain knowledge of the candidate’s career from his/her former employer or others who have been in professional contact with him/her. The candidate shall have seven days to comment on the information that is collected.” Section 6 “The Committee shall submit a written and reasoned report on the candidates including the following: (a) reasoned opinion on each candidate’s qualification; (b) reasoned opinion as to which candidate/s the Committee considers the most qualified for the judicial office.” Section 7 “The Committee shall share its draft assessment report with the candidates and give them seven days to comment thereon. The candidates are bound by confidentiality as to the content of the draft report.” Section 8 “After the Committee has reviewed the candidates’ comments and amended the report, as appropriate, it finalises the report, signs it and sends it to the Minister along with the case documents. Furthermore, the Committee sends its report to the candidates. Three days after the Minister and the candidates have been sent a copy of the report it shall be published on the Ministry of Justice’s website.” Section 9 “The Committee shall submit a report on the candidates within six weeks after receiving the applications. This deadline can be extended under special circumstances such as in the event of a high number of candidates, etc. ...” Administrative Procedures Act 108. The relevant provision of the Administrative Procedures Act no. 37/1993 ( Stjórnsýslulög ) reads as follows: Section 10 Rule of investigation “An authority shall ensure that a case is sufficiently investigated before a decision thereon is reached.” Parliamentary Procedures Act 109. The relevant provisions of the Parliamentary Procedures Act no. 55/1991 ( Lög um þingsköp Alþingis ) read as follows: Section 45 “Motions for parliamentary resolutions shall take the form of resolutions. They shall be printed and distributed to Members at a sitting of Althingi. As a rule, motions for resolutions shall be accompanied by an explanation of their substance. Deliberations may not take place until at least two nights after the distribution of the motion. A resolution cannot pass until it has received two readings. However, motions of no confidence in the Government or a minister, motions on the appointment of committees under Article 39 of the Constitution and motions from committees submitted pursuant to section 26(2) shall be debated and brought to a conclusion in a single debate in accordance with the rules on second readings of parliamentary resolutions. The same applies to motions for adjournment of sittings of Althingi pursuant to the second sentence of Article 23 (1) of the Constitution. At the end of the first reading the motion will pass to the second reading and the committee proposed by the Speaker. However, a vote shall be taken at the request of any Member, and also if another motion is made regarding the committee to which the matter should be submitted. The second reading shall not take place until one night after the first reading or distribution of a committee report. At this reading, individual Articles of the proposal shall be debated along with amendments to such Articles. At the close of this reading a vote shall be taken on each Article of the proposal and any amendments thereto, and finally on the proposal in its entirety. However, if there are no motions to amend, the proposal may be put to the vote in its entirety. If Althingi receives a submission relating to a matter on which Althingi is required to take a position under the Constitution or by law, but the submission does not constitute parliamentary business pursuant to Chapter III, the Speaker shall report the submission at a sitting. The matter is then submitted without debate to a committee on the recommendation of the Speaker. When the committee has completed its examination of the matter, the committee shall express its opinion in a report, which shall be distributed at a sitting, together with a motion for a resolution, which shall be debated and brought to a conclusion in a single sitting pursuant to the rules on second readings of parliamentary resolutions. Parliamentary resolutions which are distributed after the end of November may not be placed on the agenda before the Christmas recess except with the consent of Althingi, obtained in compliance with section 74. Furthermore, parliamentary resolutions which are distributed later than 1 April may not be placed on the agenda before the summer recess except with the consent of Althingi, obtained in compliance with section 27. However, this consent can only be sought when five days have passed from the distribution of the resolution; derogation from this requirement is permitted with the support of three fifths of the Members voting on the resolution. Constitutional requirements pursuant to Article 103 of the Agreement on the European Economic Area shall be derogated from by a parliamentary resolution, whose presentation shall comply with rules established by the Speaker. The Prime Minister shall in October of each year submit to Althingi a report on the implementation of resolutions passed by Althingi in the preceding year and requiring action by a Minister or the government, unless a different form of reporting to Althingi is provided for by law. The report shall furthermore address the process of matters referred by Althingi to the Government or a Minister. When the report has been submitted, it shall be referred to the Constitutional and Supervisory Committee for discussion. The committee may submit to Althingi its opinion regarding the Minister’s report at its discretion and submit proposals to Althingi regarding individual matters in the report.” Criminal Procedure Act 110. The relevant provisions of the Criminal Procedure Act no. 88/2008 ( Lög um meðferð sakamála ) read as follows: Section 6 “A judge, including a lay judge, shall be disqualified from sitting as judge in a case where: (a) he is an accused, a victim or a representative thereof; (b) he has represented the interests of an accused or the victim in the case; (c) he has testified or been called as a witness in the case for legitimate reasons or has served as an assessor or examiner in the case [with regard to the charges in question]; (d) he is or has been the spouse of the accused or the victim, is related to them by blood or marriage in a direct line or to the level of second cousin, or related to them to the same degree by adoption; (e) he is related or has been connected to the representative of the accused or the victim, or counsel, in the manner stipulated in point (d); (f) he is connected or has been connected to a witness in the case, or to an assessor or examiner, in the manner stipulated in point (d); or (g) there are other circumstances or conditions that may justifiably raise questions about his impartiality.” 111. According to the Criminal Procedure Act, judicial proceedings can be reopened under certain conditions. Section 228 of the Act states that when a District Court judgment has not been appealed against or the time limit for appeal has passed, the Committee on Reopening of Judicial Proceedings ( Endurupptökunefnd ) can approve a request of a person, who considers that he or she has been wrongly convicted or convicted of a more serious offence than he or she committed, to reopen the judicial proceedings before the District Court, if certain conditions are fulfilled. The conditions are, inter alia, that new evidence has come to light which could have had great significance for the outcome of the case if it had been available before the judgment was announced (point (a)), or that there were serious defects in the processing of the case which affected its outcome (point (d)). The State Prosecutor can also request reopening for the benefit of the convicted person if he considers that the conditions in section 228(1) of the Act are fulfilled. In accordance with section 229 of the Act, the request for reopening shall be made in writing and sent to the Committee on Reopening of Judicial Proceedings. It shall include detailed reasoning as to how the conditions for reopening are considered to be fulfilled. Pursuant to section 231 of the Act, the Committee on Reopening of Judicial Proceedings decides whether proceedings will be reopened. If a request for reopening is approved the first judgment remains in force until a new judgment is delivered in the case. Section 232 of the Act states that the Committee on Reopening of Judicial Proceedings can accept a request for the reopening of a case which has been finally decided in the Court of Appeal or the Supreme Court and a new judgment will be delivered if the conditions of section 228 are fulfilled. A case will not be reopened in the Court of Appeal unless the time-limit to request leave to appeal to the Supreme Court has expired or the Supreme Court has rejected leave to appeal. 112. In a recent judgment it delivered on 21 May 2019, the Supreme Court held that neither section 228(1) (d) of the Criminal Procedure Act, nor any other laws, created an automatic right to reopening to persons whose criminal convictions had resulted in findings of a violation by the European Court of Human Rights and that each case would have to be assessed on its facts. The defendants in the relevant case had been convicted of tax offences, which the Court had found to be in violation of Article 4 of Protocol No. 7 to the Convention (see Jóhannesson and Others v. Iceland, no. 22007/11, 18 May 2017). Noting that the defendants had been heard by an independent and impartial tribunal and that their case was incomparable to those where fundamental fair trial principles had been breached, the Supreme Court found that their request did not fulfil the requirements for reopening under Section 228(1) (d) of the Criminal Procedure Act. Tort Act 113. Section 26(1) of the Tort Act no. 50/1993 ( Skaðabótalög ) reads: “A person who (a) deliberately or through gross negligence causes physical injury or (b) is responsible for unlawful injury against the freedom, peace, honour or person of another party, may be ordered to pay an amount in respect of non-pecuniary damage to the injured party.” Domestic practice 114. It is an unwritten general principle of Icelandic administrative law that, in the appointment of persons to public posts, the appointing party is under a duty to appoint the most qualified candidate. It is furthermore considered that such appointments must be based on objective considerations. This principle has been confirmed by the Supreme Court in many of its judgments, including the judgments dated 5 November 1998 and 14 April 2011 (see paragraph 69 above), and the judgments of 19 December 2017 concerning the candidates J.R.J. and Á.H. (see paragraphs 67-75 above). 115. As mentioned briefly in paragraph 13 above, the Supreme Court judgment of 14 April 2011 (no. 412/2010) concerned a dispute over the appointment of a District Court judge, where the Supreme Court had found the then ad hoc Minister of Justice and the Icelandic State liable for damages in relation to the appointment at issue. The appointment having been made prior to the introduction of Act no. 45/2010, at which time the Evaluation Committee’s recommendations on judicial appointments were not yet binding on the Minister of Justice, the latter had disregarded the recommendation of the Evaluation Committee and had proposed a candidate who had only been considered “qualified”, instead of one of the three who had been considered “very well qualified”. When one of the three candidates who were not appointed brought proceedings to claim damages for injury to his reputation and personal honour, the Supreme Court upheld that candidate’s claims on the basis of the following principles: “Under section 10 of the Administrative Procedures Act no. 37/1993, an authority making an appointment to a position or office of the State is required to ensure that issues of significance are sufficiently elucidated before a decision is made on the appointment. The previously applicable third and fourth paragraphs of section 12 of Act no. 15/1998 relieved the Minister of Justice ... to a significant extent of this duty of investigation when making appointments to positions of District Court judge, instead placing it in the hands of the Evaluation Committee, which was appointed with a view to ensuring that specialised expertise would be available there to assess the qualifications of applicants for a position as District Court judge ... Although the Evaluation Committee’s opinion was not binding on the Minister, ..., it must be kept particularly in mind that its investigation replaced by law an investigation which the Minister would otherwise have been obliged to carry out. As a result, if the Minister considered there to be a reason to deviate from the opinion of the Evaluation Committee when appointing a District Court judge, then his/her decision would have to be based on further investigation under section 10 of the Administrative Procedures Act, taking into account among other things his own instructions in Rules no. 693/1999 on matters relating to the assessment of the applicants’ qualifications, while at the same time ensuring that comparable expert knowledge was exercised as in the case of the Evaluation Committee’s work. In this regard, it needed also to be taken into consideration that when making an appointment to the office of judge, the Minister was not deciding on a post under the Minister’s own authority, but an office pertaining to another branch of government and subject to special rules on independence, as provided in the first sentence of Article 61 of the Constitution and section 24 of Act no. 15/1998.” 116. In his annual report for 2016, the Icelandic Parliamentary Ombudsman made the following remarks on the evaluation procedures followed by the authorities in appointments to public posts, as pertinent: 3.1.2 Matters concerning public servants “... According to an unwritten principle of administrative law, it is a general obligation to recruit the most competent candidate for a public post. Thus, an evaluation of candidates must be carried out on the basis of their professional competencies in the light of the legitimate criteria applicable, consideration being given to the law and to the nature of the post. The principle also entails that, in general, it is impermissible to take into account unrelated criteria such as political views or amity/animosity. In cases where public servants are to be recruited or appointed, authorities – or the recruitment companies they employ – increasingly appear to use a method whereby the criteria through which candidates are to be evaluated are enumerated and each criterion given a certain weight. Candidates are then awarded points for each criterion and their total score is calculated. The candidate who achieves the highest score is generally considered the most competent by the appointing authority. Deciding on the applicable criteria and their weight before evaluating candidates is in general in compliance with the appointing authority’s task to evaluate candidates based on their professional competencies. However, I have noticed in recent years that the above-described method is employed too strictly and absolutely, without properly assessing substantively the candidates’ knowledge and experience. Thus, the candidates’ experience is assessed only in terms of years, how many courses they have finished or how many academic articles they have published, without that experience apparently being substantively assessed, including as to how well the candidate has performed and how the experience will assist the candidate in the performance of the post in question. In other instances, the criteria have been divided into categories, i.e. different categories of professional experience, where each category can only give a certain maximum number of points. The result is often that the candidate who has done the highest number of jobs, and thus obtains points from the most categories, achieves a higher score than a candidate who has mastered a certain professional experience, without any substantive assessment as to whether the long experience of the latter candidate constitutes better preparation for the post than the varied experience of the former. While noting that it is not, in general, illegitimate to look for varied professional experience when recruiting candidates for a post, the above-described methods often seem automatically to lead to a lack of substantive comparison of the qualities of candidates and thus of their competencies. This results in genuine uncertainty about whether the most qualified candidate for a post obtained the highest score and thus is eliminated from consideration [ sic ]. In this regard, I emphasise that the evaluation procedures followed by the authorities should enable them to meaningfully and substantively evaluate candidates, in order to recruit the most qualified candidate for each post. In general, I believe that in the light of the evaluative nature of the choice of candidate for a public post and the criteria on which such a choice can be based, care should be taken when making that choice on the basis of points, as described above.” INTERNATIONAL MATERIALUnited Nations United Nations United Nations 117. The United Nations (UN) Basic Principles on the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provide in their relevant part as follows: Qualifications, selection and training “10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.” 118. In its General Comment no. 32 on Article 14 of the International Covenant on Civil and Political Rights (ICCPR) – which was ratified by Iceland on 22 August 1979 – concerning the right to equality before courts and tribunals and to a fair trial (CCPR/C/GC/32 published on 23 August 2007), the UN Human Rights Committee stated as follows: “4. Article 14 contains guarantees that States parties must respect, regardless of their legal traditions and their domestic law. While they should report on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees. ... 19. The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. 20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.” 119. The relevant parts of the thematic report by the UN Special Rapporteur on the Independence of Judges and Lawyers, Mr Leandro Despouy, on “Guarantees of judicial independence / Major developments in international justice” (UN Human Rights Council, document A/HRC/11/41 of 24 March 2009), read as follows: III. GUARANTEES OF JUDICIAL INDEPENDENCE A. Institutional independence: elements having an impact on the independence of the judiciary “17. In this chapter, the Special Rapporteur will analyse features having an impact on the independence of the judiciary as an institution. ... 3. Selection and appointment 23. The Basic Principles on the Independence of the Judiciary prescribe that judges be selected on the basis of integrity and ability and that any method of judicial selection should include safeguards against judicial appointments for improper motives [footnote: Principle 10]. This key principle is also established by a number of regional standards [Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe, principle I (2) (c); Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, A (4) (h); Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region, principles 11, 12 and 15]. Furthermore, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa highlight the importance of transparency and accountability in the selection and appointment procedures [footnote: Principles and Guidelines in Africa, A (4) (h)]. 24. The Special Rapporteur takes note of the variety of existing systems for the selection and appointment of judges worldwide. One can broadly distinguish political appointments (selection by the legislative or executive branches of power), appointments by popular elections, corporative appointments (by bodies composed of judges only), selection by judicial councils with plural representation, or a variety of mixed systems where the nominating body is of one type (e.g. judicial council) and the one in charge of appointments is of a different nature (e.g. a political appointing body) ... ... 30. In addition to the composition of the selecting body, it is also important to determine the extent of powers given to this organ, as this element has a great impact on the degree of independence of judges, not only from political power, but also from the selecting body itself ... In order to secure the independence of judges and the selection of the most suitable candidates, the Special Rapporteur highlights the importance of the establishment and application of objective criteria in the selection of judges. The principle of objective criteria was also highlighted by the Human Rights Committee and by the Committee against Torture. These objective criteria should relate particularly to qualifications, integrity, ability and efficiency. The Special Rapporteur emphasizes that selection of judges must be based on merit alone, a key principle also enshrined in Recommendation No. R (94) 1228 and the Statute of the Ibero-American Judge ... ... 33. Where an organ of the executive or legislative branch is the one formally appointing judges [footnote omitted] following their selection by an independent body, recommendations from such a body should only be rejected in exceptional cases and on the basis of well-established criteria that have been made public in advance. For such cases, there should be a specific procedure by which the executive body is required to substantiate in a written manner for which reasons it has not followed the recommendation of the above-mentioned independent body for the appointment of a proposed candidate. Furthermore, such written substantiation should be made accessible to the public. Such a procedure would help enhance transparency and accountability of selection and appointment.” 120. In accordance with its obligation under Article 40 of the ICCPR, the Government of Iceland submitted its fifth periodic report on the implementation of the ICCPR to the UN Human Rights Committee on 27 April 2010 (UN Doc. CCPR/C/ISL/5). The relevant parts of the report, concerning the procedure for the appointment of judges, read as follows: “130. In the recent years there has been growing concern that the rules relating to the selection and appointment of judges, both in the district courts and the Supreme Court, do not sufficiently guarantee the independence of the judiciary. This debate has centred on the role of the ministers, who have sole responsibility for appointing judges, and have on occasions disregard[ed] the recommendations of a special evaluation committee concerning the appointment of district court judges and the opinion of the Supreme Court concerning the appointment of Supreme Court Judges. A response has now been made to this criticism, and the Minister of Justice has submitted a bill to the Althingi on amendments to the Judiciary Act, No. 15/1998. Under the amendments proposed, the aim is that the Minister of Justice would appoint a five-man selection committee to examine the qualifications and competence of applicants for the position of both Supreme Court and district court judges ... This selection committee would submit to the Minister of Justice written and reasoned comments on applicants for positions as Supreme Court judges. In its comments, the committee would adopt a position as to which applicant was the best qualified to be appointed to the position, but would be able to name two or more as being equally well qualified. 131. The most significant element in these proposals is that the minister would not be able to appoint as a judge a person that the evaluation committee did not consider to be the best qualified, either absolutely or tying with one or more others, among the applicants. Exemptions could be made from this rule, however, if the Althingi approved an application by the Minister of Justice for permission to appoint to the position another applicant, whose name was specified, who in the opinion of the selection committee met all the [relevant] conditions ...” Council of EuropeCommittee of Ministers Committee of Ministers Committee of Ministers 121. The Recommendation adopted by the Committee of Ministers on 17 November 2010 (CM/Rec(2010)12) on “Judges: independence, efficiency and responsibilities” provides in its relevant parts as follows: Chapter I – General aspects Judicial independence and the level at which it should be safeguarded “3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence. 4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.” Chapter II − External independence “11. The external independence of judges is not a prerogative or privilege granted in judges’ own interest but in the interest of the rule of law and of persons seeking and expecting impartial justice. The independence of judges should be regarded as a guarantee of freedom, respect for human rights and impartial application of the law.” Chapter VI - Status of the judge Selection and career “44. Decisions concerning the selection and career of judges should be based on objective criteria pre ‑ established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity. ... 46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. 47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice. 48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.” The Explanatory Memorandum to this recommendation further provides as follows: “13. The separation of powers is a fundamental guarantee of the independence of the judiciary whatever the legal traditions of the member states.” Venice Commission 122. In its Report on Judicial Appointments (CDL-AD(2007)028), adopted at its 70th Plenary Session (16-17 March 2007), the European Commission for Democracy Through Law (Venice Commission) held as follows (footnotes omitted): “3. International standards in this respect are more in favour of the extensive depolitisation of the [judicial appointment] process. However no single non-political “model” of appointment system exists, which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary. ... 5. In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time. 6. New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges. 7. In Europe, methods of appointment vary greatly according to different countries and their legal systems; furthermore they can differ within the same legal system according to the type of judges to be appointed.” 123. The relevant extracts from the Rule of Law Checklist (CDL ‑ AD(2016)007), adopted by the Venice Commission at its 106th Plenary Session (11-12 March 2016) [8], read as follows: “45. A basic requirement of the Rule of Law is that the powers of the public authorities are defined by law. In so far as legality addresses the actions of public officials, it also requires that they have authorisation to act and that they subsequently act within the limits of the powers that have been conferred upon them, and consequently respect both procedural and substantive law [footnote omitted]. ... 53. Although full enforcement of the law is rarely possible, a fundamental requirement of the Rule of Law is that the law must be respected. This means in particular that State bodies must effectively implement laws. The very essence of the Rule of Law would be called in question if law appeared only in the books but were not duly applied and enforced [footnote omitted]. The duty to implement the law is threefold, since it implies obedience to the law by individuals, the duty reasonably to enforce the law by the State and the duty of public officials to act within the limits of their conferred powers. ... 66. Abuse of discretionary power should be controlled by judicial or other independent review. Available remedies should be clear and easily accessible. ... 68. The obligation to give reasons should also apply to administrative decisions [footnote omitted]. ... 74. The judiciary should be independent. Independence means that the judiciary is free from external pressure, and is not subject to political influence or manipulation, in particular by the executive branch. This requirement is an integral part of the fundamental democratic principle of the separation of powers. Judges should not be subject to political influence or manipulation. ... 79. It is important that the appointment and promotion of judges is not based upon political or personal considerations, and the system should be constantly monitored to ensure that this is so.” Consultative Council of European Judges 124. In its Opinion no. 1 (2001) on “standards concerning the independence of the judiciary and the irremovability of judges” the Consultative Council of European Judges (CCJE) made the following observations, the relevant parts of which read as follows (footnotes omitted): The rationales of judicial independence “10. Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial ... Their [judges’] independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice. 11. This independence must exist in relation to society generally and in relation to the particular parties to any dispute on which judges have to adjudicate. The judiciary is one of three basic and equal pillars in the modern democratic state. It has an important role and functions in relation to the other two pillars. It ensures that governments and the administration can be held to account for their actions, and, with regard to the legislature, it is involved in ensuring that duly enacted laws are enforced, and, to a greater or lesser extent, in ensuring that they comply with any relevant constitution or higher law ... To fulfil its role in these respects, the judiciary must be independent of these bodies, which involves freedom from inappropriate connections with and influence by these bodies. Independence thus serves as the guarantee of impartiality. This has implications, necessarily, for almost every aspect of a judge’s career: from training to appointment and promotion and to disciplining. 12. ... judicial independence is an elaboration of the fundamental principle that ‘no man may be judge in his own cause’. This principle also has significance well beyond that affecting the particular parties to any dispute. Not merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary. A judge must thus not merely be free in fact from any inappropriate connection, bias or influence, he or she must also appear to a reasonable observer be free therefrom. Otherwise, confidence in the independence of the judiciary may be undermined. 13. The rationale of judicial independence, as stated above, provides a key by which to assess its practical implications – that is, the features which are necessary to secure it, and the mean by which it may be secured, at a constitutional or lower legal level, as well as in day-to-day practice, in individual states.” Basis of appointment or promotion “17. ... There is, therefore, general acceptance both that appointments should be made ‘on the merits’ based on ‘objective criteria’ and that political considerations should be inadmissible. ... 25. Any ‘objective criteria’, seeking to ensure that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’, are bound to be in general terms. Nonetheless, it is their actual content and effect in any particular state that is ultimately critical. The CCJE recommended that the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’. Once this is done, those bodies or authorities responsible for any appointment or promotion will be obliged to act accordingly, and it will then at least be possible to scrutinize the content of the criteria adopted and their practical effect. ... 45. Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for more objective and formal safeguards [regarding appointments and promotions of judges]. In other states, ..., the need is pressing ...” Tenure – irremovability and discipline “57. It is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office: ...” 125. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant paragraphs read as follows: “ Rule of law and justice 1. The judiciary is one of the three powers of any democratic state. Its mission is to guarantee the very existence of the Rule of Law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner. Judicial Independence 2. Judicial independence and impartiality are essential prerequisites for the operation of justice. 3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence. 4. Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect of recruitment, Guarantees of independence 5. Decisions on selection, nomination and career shall be based on objective criteria and taken by the body in charge of guaranteeing independence. ... 8. Initial and in-service training is a right and a duty for judges. It shall be organised under the supervision of the judiciary. Training is an important element to safeguard the independence of judges as well as the quality and efficiency of the judicial system.” 126. In another opinion on the “Position of the judiciary and its relation with the other powers of state in a modern democracy” dated 16 October 2015 (Opinion no. 18/2015), the CCJE made findings, the relevant parts of which read as follows (footnotes omitted): III. Independence of the judiciary and separation of the powers “10. The judiciary must be independent to fulfil its role in relation to the other powers of the state, society in general, and the parties to litigations. The independence of judges is not a prerogative or privilege granted in their own interest, but in the interest of the rule of law and of all those who seek and expect justice. Judicial independence is the means by which judges’ impartiality is ensured. It is therefore the pre ‑ condition for the guarantee that all citizens (and the other powers of the state) will have equality before the courts. Judicial independence is an intrinsic element of its duty to decide cases impartially. Only an independent judiciary can implement effectively the rights of all members of society, especially those groups that are vulnerable or unpopular. Thus, independence is the fundamental requirement that enables the judiciary to safeguard democracy and human rights.” IV. The legitimacy of judicial power and its elements ... B. Different elements of legitimacy of judicial power ... (2) Constitutional or formal legitimacy of individual judges “14. In order to perform the judicial functions legitimised by the constitution, each judge needs to be appointed and thus become part of the judiciary. Each individual judge who is appointed in accordance with the constitution and other applicable rules thereby obtains his or her constitutional authority and legitimacy. It is implicit in this appointment in accordance with constitutional and legal rules that individual judges are thereby given the authority and appropriate powers to apply the law as created by the legislature or as formulated by other judges. The legitimacy conferred on an individual judge by his appointment in accordance with the constitution and other legal rules of a particular state constitutes an individual judge’s ‘constitutional or formal legitimacy’. 15. The CCJE has noted the different methods of appointment of judges in the member states of the Council of Europe. These include, for example: appointment by a council for the judiciary or another independent body, election by parliament and appointment by the executive. As the CCJE has pointed out, each system has advantages and disadvantages. It can be argued that appointment by vote of Parliament and, to a lesser degree, by the executive can be seen to give additional democratic legitimacy, although those methods of appointment carry with them a risk of politicisation and a dependence on those other powers. To counter those risks, the CCJE has recommended that every decision relating to a judge’s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria. The CCJE has also recommended the participation of an independent authority with substantial representation chosen democratically by other judges in decisions concerning the appointment or promotion of judges ...” 127. On 7 February 2018 the CCJE published a report on “Judicial independence and impartiality in the Council of Europe member States in 2017”. The relevant parts of this report read as follows (footnotes omitted): II. Overview of relevant European standards A. Functional independence: appointment and security of tenure of judges “13. The above-mentioned European and international documents underline that candidates for judicial office should be selected according to objective criteria based on merit, and that the selection should be undertaken by an independent body. If a person or body outside the judiciary, such as the head of state, has the authority to appoint judges, the proposal of the independent body should generally be followed by the appointing authority. 14. The independence of judges requires the absence of interference by other state powers, in particular the executive power, in the judicial sphere ... 15. The ECtHR and the CCJE have recognised the importance of institutions and procedures guaranteeing the independent appointment of judges. The CCJE has recommended that every decision relating to a judge’s appointment, career and disciplinary action should be regulated by law, based on objective criteria and be either taken by an independent authority or subject to guarantees, for example judicial review, to ensure that it is not taken other than on the basis of such criteria. Political considerations should be inadmissible irrespective of whether they are made within Councils for the Judiciary, the executive, or the legislature. 16. There are different appointment procedures of judges in the member States. These include, for example: appointment by a Council for the Judiciary or another independent body, election by parliament and appointment by the executive. Formal rules and Councils for the Judiciary have been introduced in the member States to safeguard the independence of judges and prosecutors. However, as welcome as such developments may be, formal rules alone do not guarantee that appointment decisions are taken impartially, according to objective criteria, and free from political influence. The influence of the executive and legislative powers on the appointment decisions should be limited in order to prevent appointments for political reasons ...” GRECO 128. At its 59th plenary meeting held from 18 to 22 March 2013 in Strasbourg, the Council of Europe Group of States Against Corruption (GRECO) adopted its Fourth Evaluation Report on Iceland, concerning corruption prevention in respect of members of parliament, judges and prosecutors (Greco Eval IV Rep (2012)8E). The report published on 28 March 2013 made the following relevant remarks on the appointment of judges: “75. Generally speaking, the GET [GRECO evaluation team] found the judiciary in Iceland to be of a high standard. Steps have been taken to address public criticism as regards appointment and recruitment to the judiciary, an area where misgivings have been expressed in the past as to appointments to office being politically motivated rather than based on merit ... The GET wishes to highlight that judges must not only be independent, but also seen to be independent. This is of particular relevance in Iceland where opinion polls in recent years have shown that only about 30% of the public expresses confidence in the judicial system as a whole [footnote: Sustainable Governance Indicators (SGI) (2011) Iceland Report by Bertelsmann Stiftung] – a striking figure, all the more so since the professionalism and competence of judges do not appear to be questioned by the population. Further consideration could be paid by the judiciary to the additional measures which could be developed to tackle this negative public perception and thereby strengthen public trust and confidence in this sector ... 76. The rules for the appointment of judges were changed in May 2010, pursuant to Act No. 45/2010 amending Act No. 15/1998 ... 77. Appointment criteria are examined for each applicant by an evaluation committee consisting of five members ... The most suitable candidate is then appointed as a judge by the Minister of the Interior ... No applicant may be appointed to the office of judge without the endorsement of the evaluation committee. However, the provisions allow an exception to this rule: the Minister of the Interior can appoint a candidate from the list of suitable candidates, who meets all the requirements but has not been ranked as the most suitable candidate by the evaluation committee, if the Althingi adopts, by simple majority, such a motion by the Minister. 78. However, the exception described above, which requires an appropriate justification by the Minister, has not applied since the new rules on judicial appointments came into force in 2010. The GET heard that, before the new system applied, the Minister was not bound to follow the advice of the relevant judicial bodies when appointing a person to judicial office and indeed it happened in the past that appointments were made arbitrarily raising criticism as to political influence having filtered in the process ... The GET was also told that the exception provided by law is meant to work more as a safety measure to ensure some sort of review mechanism for the decisions made by the evaluation committee (in the event, for example, of criticisms of corporatism). ... 82. The GET welcomes the measures taken in recent years to further regulate and strengthen the appointment and recruitment procedures in the judiciary (see paragraphs 77 and 78) to respond to concerns that had been raised previously in Iceland... The interlocutors met on-site agreed that the reforms undertaken in this field have provided greater safeguards against improper political influence and have decisively improved the general transparency of the system ...” The European Charter on the Statute for Judges 129. The relevant extract from the European Charter on the Statute for Judges of 8-10 July 1998 [9] reads as follows: 2. SELECTION, RECRUITMENT, INITIAL TRAINING “2.1. The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, (...). 2.2. The statute makes provision for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties.” The European Charter on the Statute for Judges provides as follows in its Explanatory Memorandum: “1.1 The Charter endeavours to define the content of the statute for judges on the basis of the objectives to be attained: ensuring the competence, independence and impartiality which all members of the public are entitled to expect of the courts and judges entrusted with protecting their rights. The Charter is therefore not an end in itself but rather a means of guaranteeing that the individuals whose rights are to be protected by the courts and judges have the requisite safeguards on the effectiveness of such protection. These safeguards on individuals’ rights are ensured by judicial competence, in the sense of ability, independence and impartiality ...” European UnionThe European Commission The European Commission The European Commission 130. The European Commission’s 2011 Progress Report on Iceland published on 12 October 2011 (SEC(2011) 1202 final) made the following observations regarding the independence of the judiciary in Iceland: “The independence of the judiciary was strengthened. In May 2011, the process of appointing three judges in the Supreme Court took place according to the rules of the amended Judiciary Act. However, the implementation of the new rules on appointing judges and prosecutors still requires further monitoring.” Case-law of the European Union courts (a) Judgment of the General Court (Appeal Chamber) in the case of FV v Council dated 23 January 2018 (T ‑ 639/16 P, EU:T:2018:22) 131. The case concerned an appeal brought by F.V., an official of the Council of the European Union at the material time, against a judgment delivered on 28 June 2016 by the Civil Service Tribunal of the European Union. F.V. claimed, inter alia, that the judgment under appeal had been delivered by a Chamber which had been improperly constituted, having regard to the flaws in the procedure for the appointment of one of the judges on the bench. He complained, in particular, that the judge in question had been appointed to the Civil Service Tribunal through an appointment procedure that had been initiated to fill two other positions in that tribunal. 132. By a decision dated 23 January 2018, the General Court found that the Chamber of the Civil Service Tribunal which delivered the judgment in question had been improperly constituted. It held, in particular, that the Council had failed to comply with the legal framework laid down by the relevant public call for applications, because it had used the list of candidates drawn up following that call – which had been made for the appointment of two judges only – to fill a third post. As the constitution of the relevant Chamber of the Civil Service Tribunal was considered improper on this ground alone, the judgment under appeal was set aside in its entirety. The relevant parts of the General Court’s judgment read as follows: “65. ..., it is therefore necessary to examine whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal. 66. In that context, it must be borne in mind that, according to the case-law of the Court, when the proper constitution of the court which delivered the judgment at first instance is contested and the challenge is not manifestly devoid of merit, the appeal court is required to verify that the court was properly constituted. A ground alleging the irregular constitution of the panel of judges is a ground involving a question of public policy, which must be examined by the appeal court of its own motion, even if this irregularity was not invoked at first instance (see, to that effect, judgments of 1 July 2008, Chronopost and La Poste v UFEX and Others, C ‑ 341/06 P and C ‑ 342/06 P, EU:C:2008:375, paragraphs 44 to 50). 67. As is apparent from the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, one of the requirements concerning the composition of the Chamber is that courts must be independent, impartial and previously established by law. 68. The principle of the lawful judge, the objective of which is to guarantee the independence of judicial power with respect to the executive, stems from that requirement, which must be interpreted as meaning that the composition of the court and its jurisdiction must be regulated beforehand by legal provisions (see, to that effect, judgment of 13 December 2012, Strack v Commission, T ‑ 199/11 P, EU:T:2012:691, paragraph 22). ... 72. According to the case-law of the European Court of Human Rights (‘the ECtHR’), the principle of the lawful judge enshrined in the first sentence of Article 6(1) of the ECHR reflects the principle of the rule of law, from which it follows that a judicial body must be set up in accordance with the intention of the legislature (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, ..., paragraph 103, and 20 October 2009, Gorguiladzé v. Georgia, ..., Paragraph 67). 73. According to the ECtHR, a court must thus be established in accordance with the legal provisions on the establishment and competence of judicial bodies and with any other provision of national law that would render, if it is not complied with, the involvement of one or more judges in the examination of the case improper. This includes in particular provisions relating to the mandates, incompatibilities and disqualification of judges (see, to that effect, ECtHR, 27 October 2009, Pandjikidzé and Others v. Georgia, ..., paragraph 104, and 20 October 2009, Gorguiladzé v. Georgia, ..., paragraph 68). 74. As it is apparent from the case-law of the ECtHR, the principle of the lawful judge requires compliance with the provisions governing the procedure for the appointment of judges (see, to that effect, ECtHR, 9 July 2009, Ilatovskiy v. Russia, ..., paragraphs 40 and 41). 75. Indeed, it is not only essential that judges are independent and impartial, but also that the procedure for their appointment appears to be so. It is for that reason that the rules for the appointment of a judge must be strictly adhered to. Otherwise, the confidence of litigants and the public in the independence and impartiality of the courts might be eroded (see, to that effect, decision of the EFTA Court of 14 February 2017, Pascal Nobile v DAS Rechtsschutz-Versicherungs, E-21/16, paragraph 16). 76. The question whether the flaws in the procedure for the appointment of the judge at issue are such as to affect the proper composition of the Second Chamber of the Civil Service Tribunal which delivered the judgment under appeal must be considered in the light of those principles. 77. In that regard, it must be stated that it is apparent [...], that the Council was fully aware that the list of candidates at issue had not been established with a view to appointing a judge to the post held by Ms [R.P.]. It nevertheless decided to use the list for that purpose. It therefore follows from the appointment itself that the Council deliberately disregarded the legal framework laid down by the public call for applications of 3 December 2013 and the rules governing the appointment of judges to the Civil Service Tribunal. 78. Accordingly, having regard to the importance of compliance with the rules governing the appointment of a judge for the confidence of litigants and the public in the independence and impartiality of the courts, the judge at issue cannot be regarded as a lawful judge within the meaning of the first sentence of the second paragraph of Article 47 of the Charter of Fundamental Rights.” 133. The proposal for the review of this judgment made by the First Advocate General was dismissed by the Court of Justice (Reviewing Chamber) on 19 March 2018 (C-141/18 RX), as the formal conditions under the Statute of the Court of Justice of the European Union on whether a judgment should be reviewed were not met in this case. (b) Judgments of the General Court (Appeal Chamber) and the Court of Justice of the European Union (Grand Chamber) in the cases of Simpson v Council and HG v Commission (i) Judgment of the General Court (Appeal Chamber) dated 19 July 2018 (cases T-646/16 P and T ‑ 693/16 P) 134. The cases of Simpson v Council and HG v Commission concerned appeals lodged with the General Court in September 2016 against judgments delivered by the Civil Service Tribunal in respect of Mr Simpson and Mr H.G., staff members at the Council of the European Union and the European Commission, respectively, at the material time. Both judgments of the Civil Service Tribunal had been delivered by the same panel of judges whose composition had been considered to be irregular by the General Court in the judgment in FV. 135. Relying on its findings in the case of FV, on 19 July 2018 the General Court held that the judgments of the Civil Service Tribunal under review had to be set aside in their entirety on the grounds of infringement of the principle of the right to a judge assigned by law. 136. Upon a request from the First Advocate General, in a decision of 17 September 2018 (EU:C:2018:763) the Reviewing Chamber of the Court of Justice of the European Union (CJEU) decided that the General Court’s judgments in the cases of Simpson and HG should be reviewed, in order to determine whether, having regard, in particular, to the general principle of legal certainty, they affected the unity or consistency of European Union law. The Reviewing Chamber held as follows: “The review shall involve, in particular, the question whether, ..., the appointment of a judge may form the subject matter of a review of indirect legality or whether such a review of indirect legality is – by principle or after the passage of a certain period of time – excluded or limited to certain types of irregularity in order to ensure legal certainty and the force of res judicata.” (ii) Judgment of the Court of Justice of the European Union (Grand Chamber) dated 26 March 2020 (Joined Cases C ‑ 542/18 RX-II and C ‑ 543/18 RX-II, EU:C:2020:232) 137. On 26 March 2020 the Grand Chamber of the CJEU delivered its judgment in the cases of Simpson and HG. While the CJEU upheld the General Court’s finding regarding the irregularity in the judicial appointment procedure at issue, it disagreed with that court’s conclusion as to the effect of that irregularity on the parties’ right to a “tribunal established by law”. The relevant extracts from the judgment read as follows: “50 As regards the answer to the question to be reviewed in this case, it is necessary to begin by examining whether, having regard, in particular, to the general principle of legal certainty, the General Court erred in law by setting aside the contested decisions on the ground that the composition of the panel of judges of the Civil Service Tribunal which had delivered those decisions had been irregular because of an irregularity affecting the procedure for the appointment of one of the members of that panel of judges, leading to a breach of the principle of the lawful judge, laid down in the first sentence of the second paragraph of Article 47 of the Charter. 51 In the context of that examination, it is necessary to determine, first, in what circumstances the appointment of a judge may, like acts covered by Article 277 TFEU, form the subject matter of an incidental review of legality. Secondly, the Court must verify whether, in so far as the irregularity concerning the appointment procedure is established, as determined by the General Court, that irregularity did indeed lead to an infringement of the first sentence of the second paragraph of Article 47 of the Charter, justifying the setting aside of those decisions. ... 72 Since the first sentence of the second paragraph of Article 47 of the Charter corresponds to the first sentence of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), its meaning and scope are, in accordance with Article 52(3) of the Charter, the same as those laid down by that convention. The Court must therefore ensure that the interpretation which it gives to the second paragraph of Article 47 of the Charter safeguards a level of protection which does not fall below the level of protection established in Article 6 ECHR, as interpreted by the European Court of Human Rights (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18, EU:C:2019:982, paragraph 118 and the case-law cited). 73 According to the settled case-law of the European Court of Human Rights, the reason for the introduction of the term ‘established by law’ in the first sentence of Article 6(1) ECHR is to ensure that the organisation of the judicial system does not depend on the discretion of the executive, but that it is regulated by law emanating from the legislature in compliance with the rules governing its jurisdiction. That phrase reflects, in particular, the principle of the rule of law and covers not only the legal basis for the very existence of a tribunal, but also the composition of the bench in each case and any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular, including, in particular, provisions concerning the independence and impartiality of the members of the court concerned (see, to that effect, ECtHR, 8 July 2014, Biagioli v. San Marino, CE:ECHR:2014:0708DEC000816213, §§ 72 to 74, and ECtHR, 2 May 2019, Pasquini v. San Marino, CE:ECHR:2019:0502JUD005095616, §§ 100 and 101 and the case-law cited). 74 Likewise, the European Court of Human Rights has already had an opportunity to observe that the right to be judged by a tribunal ‘established by law’ within the meaning of Article 6(1) ECHR encompasses, by its very nature, the process of appointing judges (ECtHR, 12 March 2019, Ástráðsson v. Iceland, CE:ECHR:2019:0312JUD002637418, interim judgment, § 98). 75 It follows from the case-law cited in paragraphs 71 and 73 of the present judgment that an irregularity committed during the appointment of judges within the judicial system concerned entails an infringement of the first sentence of the second paragraph of Article 47 of the Charter, particularly when that irregularity is of such a kind and of such gravity as to create a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned, which is the case when what is at issue are fundamental rules forming an integral part of the establishment and functioning of that judicial system. 76 It is in the light of those principles that the Court must examine whether the irregularity committed in the appointment procedure at issue resulted in this instance in an infringement of the parties’ right to a hearing by a tribunal previously established by law, as guaranteed by the first sentence of the second paragraph of Article 47 of the Charter. ... 79 In that context, the mere fact that the Council used the list drawn up following the public call for applications of 3 December 2013 to fill the third post is not sufficient to establish an infringement of a fundamental rule of the procedure for appointing judges to the Civil Service Tribunal that is of such a kind and of such gravity as to create a real risk that the Council made unjustified use of its powers, undermining the integrity of the outcome of the appointment process and thus giving rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge appointed to the third post, or of the Chamber to which that judge was assigned. 80 In that respect, the irregularity in the appointment procedure at issue is distinguishable from that at issue in the decision of the EFTA Court of 14 February 2017, Pascal Nobile v DAS Rechtsschutz-Versicherungs (E ‑ 21/16), mentioned in paragraph 75 of the judgment of 23 January 2018, FV v Council (T ‑ 639/16 P, EU:T:2018:22). The latter irregularity consisted in the appointment of a judge to the EFTA Court for, exceptionally, a three-year term of office instead of a six-year term, and thus concerned, unlike the irregularity examined in the present cases, the infringement of a fundamental rule in relation to the duration of judges’ mandates at that court which was intended to protect their independence. 81 It follows from the foregoing that the Council’s disregard for the public call for applications of 3 December 2013 does not constitute an infringement of the fundamental rules of EU law applicable to the appointment of judges to the Civil Service Tribunal that entailed an infringement of the applicants’ right to a tribunal established by law, as guaranteed by the first sentence of the second paragraph of Article 47 of the Charter. 82 Consequently, and since the judgments under review do not contain anything else that might cast doubt on compliance with the first sentence of the second paragraph of Article 47 of the Charter, it must be held that the General Court made an error of law in ruling, in those judgments, that that provision had been infringed. The irregularity referred to in the preceding paragraph could not, therefore, by itself justify the setting aside of a judicial decision adopted by the panel of judges to which the judge appointed to the third post was assigned.” (c) Judgment of the Court of Justice of the European Union (Grand Chamber) dated 19 November 2019 (Joined Cases C ‑ 585/18, C-624/18, C-625/18, EU:C:2019:982) 138. On 19 November 2019 the Grand Chamber of the Court of Justice of the European Union delivered a preliminary ruling in response to requests from the Labour and Social Insurance Chamber of the Supreme Court of Poland. The requests mainly concerned the question whether the newly established Disciplinary Chamber of the Supreme Court of Poland satisfied, in the light of the circumstances in which it was formed and its members appointed, the requirements of independence and impartiality required under Article 47 of the Charter of Fundamental Rights of the European Union. Recalling that the interpretation of Article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention, the Court of Justice underlined the following principles, as relevant: “120 [The] requirement that courts be independent, which is inherent in the task of adjudication, forms part of the essence of the right to effective judicial protection and the fundamental right to a fair trial, ... ... 123 Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it ... 124 Moreover, in accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive ... 125 In that regard, it is necessary that judges are protected from external intervention or pressure liable to jeopardise their independence. The rules set out in paragraph 123 above must, in particular, be such as to preclude not only any direct influence, in the form of instructions, but also types of influence which are more indirect and which are liable to have an effect on the decisions of the judges concerned ... ... 127 According to settled case-law of [the European Court of Human Rights], in order to establish whether a tribunal is ‘independent’ within the meaning of Article 6(1) of the ECHR, regard must be had, inter alia, to the mode of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body at issue presents an appearance of independence (ECtHR, 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, § 144 and the case-law cited), it being added, in that connection, that what is at stake is the confidence which such tribunals must inspire in the public in a democratic society (see, to that effect, ECtHR, 21 June 2011, Fruni v. Slovakia, CE:ECHR:2011:0621JUD000801407, § 141). 128 As regards the condition of ‘impartiality’, within the meaning of Article 6(1) of the ECHR, impartiality can, according to equally settled case-law of the European Court of Human Rights, be tested in various ways, namely, according to a subjective test where regard must be had to the personal convictions and behaviour of a particular judge, that is, by examining whether the judge gave any indication of personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. In this connection, even appearances may be of a certain importance. Once again, what is at stake is the confidence which the courts in a democratic society must inspire in the public, and first and foremost in the parties to the proceedings (see, inter alia, ECtHR, 6 May 2003, Kleyn and Others v. Netherlands, CE:ECHR:2003:0506JUD003934398, § 191 and the case-law cited, and 6 November 2018, Ramos Nunes de Carvalho e Sá v. Portugal, CE:ECHR:2018:1106JUD005539113, §§ 145, 147 and 149 and the case-law cited). ... 133 In that regard, as far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C ‑ 175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited). 134 However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 111). 135 In that perspective, it is important, inter alia, that those conditions and detailed procedural rules are drafted in a way which meets the requirements set out in paragraph 125 above.” (d) Judgment of the Court of Justice of the European Union (Grand Chamber) in the case of Commission v. Poland dated 24 June 2019 (Case C-619/18, EU:C:2019:531) 139. On 24 June 2019 the Grand Chamber of the CJEU delivered its judgment in the case of Commission v. Poland, which mainly concerned the lowering of the retirement age for Supreme Court judges to 65 and which applied to judges of the court appointed before the date on which the relevant law had entered into force. Under the law in question, it would be possible for Supreme Court judges to continue in active judicial service beyond the age of 65 subject to certain conditions, including an authorisation by the President of the Republic of Poland, who would not be bound by any criterion and whose decision would not be subject to any form of judicial review. After emphasising the cardinal importance of maintaining the independence of national courts in order to ensure effective judicial protection, the Court of Justice made the following remarks regarding the role played by the principle of irremovability of judges in guaranteeing the independence of the judiciary: “75 In particular, that freedom of the judges from all external intervention or pressure, which is essential, requires, as the Court has held on several occasions, certain guarantees appropriate for protecting the individuals who have the task of adjudicating in a dispute, such as guarantees against removal from office (see, to that effect, judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C ‑ 216/18 PPU, EU:C:2018:586, paragraph 64 and the case-law cited). 76 The principle of irremovability requires, in particular, that judges may remain in post provided that they have not reached the obligatory retirement age or until the expiry of their mandate, where that mandate is for a fixed term. While it is not wholly absolute, there can be no exceptions to that principle unless they are warranted by legitimate and compelling grounds, subject to the principle of proportionality ... 78 In the present case, it must be held that the reform being challenged, which provides that the measure lowering the retirement age of judges of the Sąd Najwyższy (Supreme Court) is to apply to judges already serving on that court, results in those judges prematurely ceasing to carry out their judicial office and is therefore such as to raise reasonable concerns as regards compliance with the principle of the irremovability of judges. 79 In those circumstances, and having regard to the cardinal importance of that principle, recalled in paragraphs 75 to 77 above, such an application is acceptable only if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it.” Following an examination of the facts at issue on the basis of the foregoing principles, the Court of Justice found that the application of the measure lowering the retirement age of the Supreme Court judges to the judges currently serving in that court had undermined the principle of irremovability of judges, which was essential to their independence. Court of Justice of the European Free Trade Association States (EFTA Court) 140. The Court of Appeal of the Principality of Liechtenstein requested an advisory opinion from the EFTA Court in respect of the Agreement on the European Economic Area (EEA Agreement) and the Solvency II Directive 2009/138/EC, and referred three questions to the EFTA Court in that regard. The third question, which was conditional on the entertainment of the first two questions by the EFTA Court after 16 January 2017, concerned the principle of loyalty laid down in Article 3 of the EEA Agreement and the possibility for the EFTA States to question the validity of the decisions of the EFTA Court. In essence the question raised the issue as to whether, from 17 January 2017, the EFTA Court would be lawfully composed in a manner that ensured its independence and impartiality. The reason for the question was that by an ESA/Court Committee Decision of 1 December 2016, the regular judge of the EFTA Court in respect of Norway had been reappointed for a three-year term of office as of 17 January 2017. However, Article 30 § 1 of the Agreement between the EFTA States, on the Establishment of a Surveillance Authority and Court of Justice (SCA), provided that the judges of the EFTA Court would be appointed for a term of six years. 141. On 13 January 2017 the ESA/Court Committee delivered a new decision, whereby it reappointed the judge in respect of Norway for a term of six years and repealed its first decision. 142. On 14 February 2017, in case no. E-21/16, the EFTA Court replied to the Court of Appeal’s third question, the relevant part of which reads as follows: “16. Any assessment of the lawfulness of the Court’s composition, particularly concerning its independence and impartiality, requires that due account is taken of several important factors. First, the principle of judicial independence is one of the fundamental values of the administration of justice. ... Second, it is vital not only that judges are independent and fair, they must also appear to be so. Third, maintaining judicial independence requires that the relevant rules for judicial appointment, as set out in Article 30 SCA, must be strictly observed. Any other approach could lead to the erosion of public confidence in the Court and thereby undermine its appearance of independence and impartiality.” 143. The EFTA Court concluded that it had to take into account the new decision repealing the previous decision and re-appointing the judge in respect of Norway for a term of six years. The new decision was unambiguous and provided for a term that was in accordance with Article 30 of the SCA. Therefore, there could be no doubt as to the lawfulness of the court’s composition as from 17 January 2017. The Inter-American Court of Human Rights 144. In the case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, judgment of 23 August 2013, concerning the removal of twenty-seven judges of the Supreme Court of Justice of Ecuador through a parliamentary resolution, the Inter-American Court of Human Rights made the following remarks on the independence of the judiciary: “144. In its case law, the Court has indicated that the scope of judicial guarantees and effective judicial protection for judges must be examined in relation to the standards on judicial independence. In the case of Reverón Trujillo v. Venezuela, the Court emphasized that judges, unlike other public officials, enjoy specific guarantees due to the independence required of the judiciary, which the Court has understood as ‘essential for the exercise of the judiciary.’ The Court has reiterated that one of the main objectives of the separation of public powers is to guarantee the independence of judges. The purpose of protection is to ensure that the judicial system in general, and its members in particular, are not subject to possible undue restrictions in the exercise their duties by bodies outside the Judiciary, or even by judges who exercise functions of review or appeal. In line with the case law of this Court and of the European Court of Human Rights, and in accordance with the United Nations Basic Principles on the Independence of the Judiciary (hereinafter ‘Basic Principles’), the following guarantees are derived from judicial independence: an appropriate process of appointment, guaranteed tenure and guarantees against external pressures. ... 154. Finally, the Court has emphasized that the State must guarantee the independent exercise of the judiciary, both in its institutional aspect, that is, in terms of the judicial branch as a system, and in its individual aspect, that is, in relation to a particular individual judge. The Court deems it pertinent to point out that the objective dimension is related to essential aspects for the Rule of Law, such as the principle of separation of powers, and the important role played by the judiciary in a democracy. Consequently, this objective dimension transcends the figure of the judge and collectively affects society as a whole ...” Other international texts 145. The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence, adopted on 19 June 1998 at a meeting of the representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates and Judges Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association, provided as follows: II. Preserving Judicial Independence 1. Judicial appointments “Jurisdictions should have an appropriate independent process in place for judicial appointments. Where no independent system already exists, appointments should be made by a judicial services commission ... or by an appropriate officer of state acting on the recommendation of such a commission. The appointment process, whether or not involving an appropriately constituted and representative judicial services commission, should be designed to guarantee the quality and independence of mind of those selected for appointment at all levels of the judiciary. Judicial appointments to all levels of the judiciary should be made on merit ...” 146. The Universal Charter of the Judge was approved by the International Association of Judges on 17 November 1999. Its Article 9 on appointments reads as follows: “The selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.” 147. In May 2012 the General Assembly of the European Network of Councils for the Judiciary adopted a declaration (the Dublin Declaration), setting minimum standards regarding the recruitment, selection, appointment and promotion of members of the judiciary. The relevant extracts of the declaration read as follows: “1. Judicial appointments should only be based on merit and capability. There requires to be a clearly-defined and published set of selection competencies against which candidates for judicial appointment should be assessed at all stages of the appointment process. 2. Selection competencies should include intellectual and personal skills of a high quality, as well as a proper work ethic and the ability of the candidates to express themselves. ... 8. Diversity in the range of persons available for selection for appointment should be encouraged, avoiding all kinds of discrimination, although that does not necessarily imply the setting of quotas per se, adding that any attempt to achieve diversity in the selection and appointment of judges should not be made at the expense of the basic criterion of merit. 9. The entire appointment and selection process must be open to public scrutiny, since the public has a right to know how its judges are selected. 10. An unsuccessful candidate is entitled to know why he or she failed to secure an appointment; and there is a need for an independent complaints or challenge process to which any unsuccessful applicant may turn if he or she believes that he/she was unfairly treated in the appointment process. 11. If the Government or the Head of State plays a role in the ultimate appointment of members of the judiciary, the involvement of a Minister or the Head of State does not in itself contend against the principles of independence, fairness, openness and transparency if their role in the appointment is clearly defined and their decision-making processes clearly documented, and the involvement of the Government or the Head of State does not impact upon those principles if they give recognition to decisions taken in the context of an independent selection process. Besides, it was also defined as a Standard in this field that where whoever is responsible for making the ultimate appointment (the Government or Head of State) has the right to refuse to implement the appointment or recommendation made in the context of an independent selection process and is not prepared to implement the appointment or recommendation it should make known such a decision and state clearly the reason for the decision.” COMPARATIVE-LAW MATERIAL 148. The Court has considered it appropriate to conduct a comparative survey with regard to the domestic law and practice in forty States Parties to the Convention (namely Albania, Andorra, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, North Macedonia, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom) on the Convention requirement of a “tribunal established by law”. 149. According to the information available to the Court, the concept of a “tribunal established by law” is recognised in the legal systems of all States surveyed, although the terminology used to designate it and the methods of its recognition differ. For instance, while in some States the concept is explicitly recognised in basically identical terms, some other States use the concept of a “lawful” or a “natural” judge or court. 150. The scope of the requirement of a “tribunal established by law” differs amongst the member States surveyed: in almost all the States concerned, the “established by law” requirement clearly involves the question of the composition of a court or tribunal; in thirty-seven member States that requirement relates to the jurisdiction and competence of a court or tribunal to rule in a particular case (in Belgium, Luxembourg and Malta the “established by law” requirement does not seem to cover this matter specifically); and in twenty-nine member States, it specifically relates to the consideration as to whether there is a legal basis for the existence of a court or tribunal. 151. The Court notes, as particularly relevant to the present case, that in nineteen (out of forty) of the States surveyed (namely Andorra, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, France, Georgia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, Montenegro, Norway, Russia, Sweden and the United Kingdom), it is sufficiently established in domestic law and/or practice that the requirement of a “tribunal established by law” also covers the consideration as to whether the legal procedure for the appointment – to the post of judge – of its judges was complied with. As for the remaining twenty-one member States, it appears that it is not sufficiently clear under their domestic law and practice whether the “established by law” requirement also extends to the process of the appointment of judges. 152. The Court further notes that in those nineteen States where the requirement of a “tribunal established by law” clearly extends to the rules relating to the appointment of judges, the legal consequences regarding a judgment given by (or with the participation of) a judge who was appointed in breach of the relevant rules vary. In most of those States, it is possible in certain circumstances to request the annulment or quashing of the judgments adopted by such a judge: nevertheless, in a number of States, such as Austria, Belgium, Georgia, Norway, and Sweden, it is clear from the case-law of the domestic courts that the breach of the domestic law at issue has to be of a particular gravity – the degree of which differs from State to State – for the relevant judgments to be annulled or quashed. Similarly, in certain States, such as Croatia, France, Italy and the United Kingdom, it appears from the domestic law and/or practice that if judicial appointments are quashed or annulled due to the irregularities in the appointment procedure, it would not necessarily mean that all acts or judgments adopted by the judge in question would be annulled or quashed. 153. Lastly, in almost all member States where the requirement of a “tribunal established by law” extends to the procedure for the appointment of judges (that is, nineteen out of forty States as mentioned in paragraph 151 above), the reopening of proceedings is a possibility, and in some instances an obligation, where a judgment has been annulled or quashed due to an irregularity in the appointment of a judge who participated in its delivery (see paragraph 152 above). THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE RIGHT TO A TRIBUNAL ESTABLISHED BY LAW 154. The applicant complained under Article 6 § 1 of the Convention that one of the three judges on the bench of the newly constituted Court of Appeal which had upheld his criminal conviction, namely A.E., had not been appointed in accordance with the relevant domestic law and that, therefore, the criminal charges against him had not been determined by a “tribunal established by law”, within the meaning of that provision. The first sentence of Article 6 § 1 of the Convention reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The Chamber judgment 155. After reiterating the general principles under the Court’s case-law concerning the right to a “tribunal established by law”, the Chamber proceeded with its analysis on the premise that the concept of “establishment” in the first sentence of Article 6 § 1 of the Convention encompassed, by its very nature, the process of appointing judges within the domestic judicial system. According to the Chamber, the principle of the rule of law required that the judicial appointment process be conducted in compliance with the applicable rules of national law in force at the material time. 156. The Chamber further noted that the test of a “flagrant breach of domestic law”, which was ordinarily applied when examining whether national courts had correctly interpreted and applied the provisions of domestic law, should also apply where the alleged breach of domestic law was attributed to another branch of government and the breach had been acknowledged by the domestic courts. The Chamber held in this connection that only those breaches of applicable national rules in the establishment of a “tribunal” that were of a fundamental nature, and that formed an integral part of the establishment and functioning of the judicial system, could be considered to constitute a “flagrant breach of domestic law” in this context. 157. Having thus laid down the main principles that would guide its examination, the Chamber had to determine whether the breaches of the relevant national rules in the procedure for the appointment of certain judges – including A.E. – to the Court of Appeal, as already recognised by the Supreme Court of Iceland, had been “flagrant” and, therefore, had had the result of denying the applicant the right to a hearing before a “tribunal established by law”, having regard to the presence of Judge A.E. on the bench which upheld his conviction. 158. The Chamber noted in the first place that the Supreme Court, which had found that the applicant had enjoyed a fair trial before an independent and impartial “tribunal”, in spite of the irregularities in the appointment of one of the judges on the bench of the Court of Appeal, had not examined as such whether the appointment at issue had constituted a “flagrant” breach of the relevant domestic rules in the light of the Court’s case-law under Article 6 § 1. It noted secondly that, contrary to the argument of the respondent Government, a violation of the principle that a “tribunal” be established by law, as of the closely related principles under the same provision that a “tribunal” be independent and impartial, did not require a separate examination as to whether the breach of that principle had had the effect of rendering a trial unfair. The Chamber considered, thirdly, that having regard to their nature and gravity, the breaches of the national law in the instant case by the Minister of Justice had been of a fundamental nature, as they lay at the core of the appointment process. The Chamber moreover noted – in the light of the factual findings of the Supreme Court – that in addition to constituting a fundamental defect in objective terms, the breaches in question had also demonstrated the Minister’s manifest disregard for the applicable rules in force at the material time. The Chamber lastly noted that the failure of Parliament – as confirmed by the Supreme Court – to adhere to the rule of separate voting on each candidate had also amounted to a serious defect in the appointment procedure, given that the relevant rule had been introduced to minimise the risk of party-political interests unduly influencing the process of appointments to the newly established Court of Appeal. 159. In the light of the foregoing findings, and having particular regard to the importance of securing compliance with applicable rules of national law in a democratic society governed by the rule of law, the Chamber found that the infringements of the domestic law, on account of the executive’s exercise of undue discretion in the judicial appointment process, had amounted to a flagrant breach of the relevant rules applicable at the material time. It therefore concluded, by five votes to two, that there had been a violation of Article 6 § 1 of the Convention in respect of the applicant’s right to a “tribunal established by law” by reason of the unlawful presence of A.E. on the bench of the Court of Appeal which had upheld his criminal conviction (see paragraphs 97-123 of the Chamber judgment). Having regard to the conclusions reached in relation to the applicant’s right to a tribunal established by law, the Chamber further considered that it was not necessary to examine his complaint in relation to the absence of independence and impartiality of the Court of Appeal panel which heard his appeal (see paragraph 126 of the Chamber judgment). Submissions before the Grand ChamberThe parties The parties The parties (a) The applicant 160. The applicant invited the Grand Chamber to follow the approach of the majority in the Chamber and find a violation of Article 6 § 1 on the grounds that the criminal charges against him had not been determined by a “tribunal established by law” on account of A.E.’s presence on the bench of the Court of Appeal which had heard his case, in spite of the irregularities in the process of that judge’s appointment, as established by the domestic courts. 161. The applicant, at the outset, provided an overview of the history of the legislative developments in Iceland concerning the judicial appointment procedure, along the same lines as the information noted in paragraphs 11 ‑ 19 above, all of which, he argued, had sought to reinforce the independence of the courts of law vis-à-vis the executive and to combat political corruption and abuse of power in judicial appointments – examples of which had been seen in Iceland in the past – so as to enhance public confidence in the judiciary. He also submitted, however, that legislation designed to ensure an independent and impartial judiciary would be useless if that legislation was circumvented in the process of appointment of judges, which was precisely the issue in the instant case when the Minister of Justice had decided to disregard the conclusions of the Evaluation Committee. The applicant argued in this regard that despite the number of legislative reforms to counter political corruption in judicial appointments, the Minister of Justice had acted out of political considerations in the proposals that she had made regarding the appointments to the new Court of Appeal. 162. The applicant claimed that the Supreme Court judgment delivered on 24 May 2018, in response to his challenges against the composition of the Court of Appeal in his case, had been defective. This was because it not only contradicted the judgments adopted earlier by the Supreme Court on 19 December 2017, but also wrongly referred to the December 2017 judgments as stating that the deficiency in the voting procedure in Parliament had not been “significant”, whereas no such claim had been made by the Supreme Court in the judgments at issue. The judgment of 24 May 2018 had, moreover, failed to comprise any scrutiny as to whether the criteria established in the Court’s case-law in respect of the “tribunal established by law” requirement had been fulfilled in the present case, or even to examine independently whether the breaches at issue had been serious or not. The Supreme Court’s approach to the case suggested that there would be nothing to obstruct the Minister’s proposals, even if she wished to depart completely from the list prepared by the Evaluation Committee and to propose the fifteen least qualified candidates according to the Committee’s rankings. 163. The applicant attributed the Supreme Court’s unwillingness to duly assess the legal effects of A.E.’s presence on the bench of the Court of Appeal to the small size of the legal community in Iceland. He stated that all four judges who had been appointed to the Court of Appeal upon the proposal of the Minister of Justice, including A.E., had served as alternate judges at the Supreme Court during the period from 5 March to 25 May 2018, when the applicant’s case was pending before the Supreme Court, a situation which, he claimed, constituted a conflict of interest. The applicant added that the annulment of a judicial appointment by a court of law, by reason of irregularities in the appointment process, was unprecedented in Iceland. 164. In the applicant’s opinion, the breaches of the law in the appointment of judges to the Court of Appeal, as identified by the Supreme Court on numerous occasions, had been very serious in nature. He argued in this connection that despite the advice provided by her own legal staff and the clear precedent set by the Supreme Court judgment of 14 April 2011 (see paragraphs 36 and 115 above), the Minister of Justice, who was a lawyer herself, had ignored the legal obligations that had been incumbent on her in the process of judicial appointments to the Court of Appeal. The Supreme Court had similarly found in its judgments of 19 December 2017 that the Minister had acted “in complete disregard” of the obvious danger to the reputational interests of the plaintiffs – namely the two non-appointed candidates – in that case. The applicant contended, on the basis of the aforementioned elements, that the Minister had breached the relevant laws with intent or with such gross negligence, that it bordered on intent. Referring, once again, to his arguments regarding the close political relations between the Minister of Justice and A.E.’s husband B.N. (see paragraph 89 above), the applicant argued that the Minister’s decision had been motivated by political considerations and had amounted to abuse of power. He also argued in this connection that two of the candidates removed from the list by the Minister had been associated with left-wing parties in different capacities, and that candidate number 30 proposed by the Minister had been the husband of a friend and former colleague of hers. 165. The applicant further argued that the explanations provided by the Minister in support of her decision to depart from the Evaluation Committee’s list – which had allegedly been motivated by considerations of gender equality and judicial experience – were unconvincing. He claimed firstly that one of the rejected candidates was a District Court judge who had been ranked higher than all of the four District Court judges whom the Minister had chosen to appoint instead. Secondly, she had appointed a male District Court judge who had been ranked 30th on the Evaluation Committee’s list, but had chosen to ignore a female District Court judge ranked 22nd. In the applicant’s submission, these examples demonstrated that the Minister had not been justified in her decision and suggested an abuse of power. 166. As regards the breaches of the law committed by Parliament, the applicant stated that no plausible explanation had been given as to why Parliament had decided to contravene the clear and unequivocal letter of the law and to submit a single motion on all the candidates for acceptance or rejection. According to the applicant, this was a conscious decision on the part of Parliament, aimed at ensuring the approval of all four candidates who had not been on the Evaluation Committee’s list, and as such it had constituted a breach of a very serious nature. To illustrate his point, the applicant explained that if the proposals had not been put to a single vote, Parliament would then have had to take separate a vote to reject, for instance, the candidate ranked in 7th place in favour of a candidate ranked 30th, who was among the four proposed by the Minister. It was therefore evident that Parliament had failed to act as a check on executive power and had thus neglected a legal duty vested in it for these exact circumstances. The applicant further argued that the explanations given by Parliament to justify the single vote were not satisfactory, as parliamentary custom could not take precedence over statute law. Like any other institution, Parliament had to abide by the law, particularly when the law in question was specifically designed to ensure due process in the appointment of judges and to curb the powers of the executive in that regard by assigning a supervisory function to Parliament. 167. The President of Iceland had, moreover, “given his blessing” to the breach committed by Parliament by signing A.E.’s letter of appointment and declaring, without having procured any independent investigation or legal advice, that no error had been committed in the conduct of the relevant vote in Parliament. All the principal pillars of government had, therefore, failed during the process of the appointment of the Court of Appeal judges. 168. The applicant argued that the breaches in question could not be considered minor for the purposes of the “tribunal established by law” principle under Article 6 § 1. He stressed in this connection the nature of the laws breached, which were intended to ensure the independence of the judiciary through an objective appointment process, and the consequences of those breaches, which, as noted by the District Court in its judgments of 25 October 2018 (see paragraph 92 above), had resulted in a composition of the Court of Appeal including judges other than those who would have been appointed had the appointment process been conducted lawfully. To hold otherwise would render that principle ineffective for failure to afford any meaningful protection. 169. The applicant stressed that the central issue at stake in the present case was the continued meaningful protection of the right to a “tribunal established by law”, which he considered to be a requirement independent from the other rights protected under Article 6 § 1 and “probably the most important” amongst them. He contended that without any real protection of that principle, the rest of the rights under Article 6 § 1 would be “terminally undermined”. He added that the “established by law” principle must be understood not only to mean that a court is to be established by law in a strictly formal and narrow sense, but also – and possibly more importantly – to require that any acts undertaken in the course of establishing a court be lawful in the fullest relevant substantive sense. 170. He further argued that the principle of “legal certainty” would not apply when there had been a “flagrant breach” of the domestic law such as in the present case. He referred in this connection to the relevant paragraphs of the opinion delivered by Advocate General Sharpston in the cases of Simpson and HG (C-542/18 and C-543/18, see Opinion delivered by the Advocate General on 12 September 2019, EU:C:2019:977; see also paragraphs 134 ‑ 137 above for further details on the cases of Simpson and HG ). He also emphasised that the judgments of the Supreme Court dated 19 December 2017, which had established the irregularities in the appointment procedure, had been delivered some ten days prior to the date on which the appointments to the Court of Appeal had come into effect (see paragraphs 67-75 above). In other words, the Icelandic State had proceeded with the appointments notwithstanding the findings of the Supreme Court, which therefore prevented the Government from relying, in good faith, on legal certainty in the present case. 171. In response to an allegation by the Government that the Evaluation Committee had recently changed its assessment practice in a manner consistent with the Minister’s original request to that Committee (see paragraph 190 below), the applicant argued that that allegation had no basis. While the Evaluation Committee had effectively proposed three candidates for one advertised post at the Supreme Court, as argued by the Government, it had done so only because those three candidates had been found to be equally qualified, and not because it had changed its assessment practice. In any event, even if the Evaluation Committee were to be criticised for its assessment method, that would not justify the serious violations of the domestic law by the Minister and Parliament in the present case. 172. As to the Government’s argument that his allegations of a political deal between the Minister and A.E.’s husband B.N. did not make sense chronologically (see paragraph 191 below), the applicant stated that the chronological order did not matter and that the facts spoke for themselves; it was apparent in his view that the Minister had done B.N. a favour, which the latter had repaid four months later. (b) The Government 173. The Government of Iceland invited the Grand Chamber to reject the applicant’s complaints and the Chamber majority’s conclusion in relation to those complaints, and to follow the reasoning adopted in the dissenting opinion, according to which the breaches of some of the rules relating to the appointment of judges to the Court of Appeal were not such as to result in that court’s lacking the required legal basis to subsequently hear cases with the participation of one or more of the four judges proposed by the Minister of Justice. In the Government’s view, the majority judgment suffered from a number of fundamental errors, as indicated below. 174. They noted firstly that in the judgment the majority had disregarded one of the core principles of the Convention system, that is, the principle of subsidiarity, by setting aside the assessment of the highest domestic court of Iceland as to the scope of the relevant rules of domestic law on the lawfulness of a “tribunal”. The Government claimed, by reference to the Court’s relevant case-law, that the majority had failed to acknowledge that the consequences of a violation of domestic law was to be assessed by domestic courts and that it was open to the Court to take a different view only where it found that the domestic courts’ assessment of the law had been “manifestly unreasonable or arbitrary or blatantly inconsistent with fundamental principles of the Convention” (they referred to the example of Pla and Puncernau v. Andorra, no. 69498/01, § 46, ECHR 2004 ‑ VIII). 175. The Government argued, secondly, that the majority in the Chamber had disregarded the fact that the right to a “tribunal established by law” was a right to a competent “tribunal” established previously by law. It had instead treated the term “established by law” in Article 6 § 1 as having the same meaning as “in accordance with” any and all rules, as long as those rules only “related to” the establishment and competence of judicial organs, and regardless of whether the flaw was only procedural in nature with no legal effect on the competence of the “tribunal”. In the Government’s opinion, the difference between the two terms was significant: a defect in the procedure by which a judge had been appointed could mean that the appointment procedure had not been “in accordance with the law”. That did not, however, mean that the purported establishment of the tribunal itself was void; domestic law could still regard it as validly constituted notwithstanding the procedural non ‑ compliance with the appointment procedure. 176. Thirdly, the test of a “flagrant violation of domestic law” established by the majority as a test to be applied by the domestic courts was contrary to the Court’s case-law. The correct approach would have been to ask whether, as a matter of domestic law, the deficiencies in the selection process were such as to render the subsequent appointment of the individual judge invalid. If they were not, the “tribunal” would then be comprised of appointed judges, bound by their legal obligations as holders of judicial office, and would therefore be “established by law”. Under the Court’s previous case-law, the “flagrant violation” test would only allow it to override a domestic court’s finding that a “tribunal” was “established by law” when it was plain and obvious that it was not so established according to domestic law; whereas in the present case, the majority had held that the word “flagrant” related to the “nature and gravity of the alleged breach”, and not to the flagrance of any error in the domestic court’s analysis of domestic law. This approach was inconsistent with the Court’s settled case-law, and with the principle of subsidiarity, and the test proposed was too broad and vague. Moreover, the only cases cited by the majority in support of their approach had been cases of the EFTA Court and of the General Court of the European Union, which concerned very different procedural flaws in very different legal contexts, and raised no issues of subsidiarity. 177. The proposed “flagrant violation” test was also unworkable, in the Government’s opinion. Any violation, no matter what it involved or when it had taken place, would be subject to the test. Accordingly, the judgments delivered by a judge appointed even thirty years ago following a flawed procedure could be contested, if the flaws were considered serious enough by the Court. The Government argued on the basis of this example that the consequences of the proposed test would be worse than, and entirely disproportionate to, the deficiencies it purported to address. 178. Fourthly, while the majority had acknowledged that a test of “flagrant violation of domestic law” could only be met where the breach of law at issue was of a “fundamental nature ... [forming] an integral part of the establishment and functioning of the judicial system” (paragraph 102 of the Chamber judgment), they had failed to have regard to various factors which made it impossible to hold that a “flagrant” violation had taken place in the present circumstances. These factors included the fact that the Court of Appeal, as an institution, had been established by law; that A.E. had been found by the Evaluation Committee, the statutory body designated to make such assessments, to be fully qualified and eligible for appointment as a Court of Appeal judge; that in proposing candidates to Althingi for approval, the Minister of Justice was not required by law to follow the Evaluation Committee’s recommendations in all circumstances; that in taking the course she did, the Minister had acted in good faith at all times and had been driven by entirely legitimate considerations relating to judicial experience and gender balance; that the appointment of A.E., alongside the fourteen other judges, had been approved by Parliament, which had had occasion to scrutinise the Minister’s proposals before the CSC and subsequently in full session and which had not sought to hold individual votes on each candidate despite having the power to do so; that the President of Iceland had formally appointed A.E. as a judge; that from the time when A.E. had taken up office as a judge, she had also undertaken all legal obligations arising from her post pursuant to Article 61 of the Constitution and had enjoyed the Constitutional protection of irremovability from office – which effectively meant that the defects in the appointment process had no effect on the judicial powers or status of A.E. when she participated in the applicant’s case –; that there was no evidence that A.E. had ever acted in any way other than in an exemplary manner as a judge, in the applicant’s case or otherwise; and that the Supreme Court had expressly found that, as a matter of domestic law, such technical flaws as it had identified in the process leading up to A.E.’s presentation for parliamentary approval and subsequent appointment were insignificant and were not such as to invalidate her appointment. 179. At the hearing before the Grand Chamber, the Government advanced some further reasons as to why the breaches at issue could not be considered to be “flagrant”. They argued in particular that, having regard to the unprecedented nature of the appointment process, any errors subsequently identified were not likely to be easily characterised as “flagrant”, unless bad faith could be shown – which had not been the case; that in the proceedings brought by J.R.J. and Á.H., the District Court had not initially found a breach of the law, which showed that any error was less than flagrant; and that the domestic courts had made no finding of bad faith against the Minister. The Government emphasised in this regard that the Supreme Court’s finding in its judgments of 19 December 2017 regarding the danger to the reputation of J.R.J. and Á.H. had been taken out of its context in the Chamber judgment. Those findings were relevant to whether damages should be awarded by reference to conventional questions of foreseeability and remoteness of loss, and they did not concern any deliberate breach of the law. On the contrary, the Supreme Court had stated explicitly in its judgments that it was not finding that the Minister had deliberately set out to harm anyone’s reputation. 180. Fifthly, and lastly, the majority had failed to have regard to the far ‑ reaching implications of their approach. In this connection, the majority had found that any procedural deficiency at any stage of a judicial selection process, however technical or ancient, would be sufficient to render void any subsequent appointment, and any decision delivered by a judge so appointed, even where, as here, there had been express parliamentary approval for the appointment and the appointment had been formally made by the President, and even where everyone involved in the process had acted in good faith and the judge was manifestly qualified. Such an approach would have extremely adverse consequences for the rule of law, judicial independence and legal certainty, and was irreconcilable with the need for security of judicial tenure, which had not been taken into account in the Chamber judgment. Upholding the majority’s reasoning could have the consequence of invalidating not only every Court of Appeal decision involving A.E., but all Court of Appeal decisions, having regard to the critique of the single vote held in Parliament for all fifteen nominees. 181. The implications of such reasoning would, moreover, not be confined to Iceland; any technical deficiency in a judicial selection process would render court decisions susceptible to challenge across the Council of Europe States, regardless of any other safeguards accompanying the appointment process or the remoteness of the defect from the substantive decision under challenge, regardless of domestic court decisions declaring the validity of the appointment, and also regardless of the quality of the candidates appointed and the general safeguards in place for judicial competence and independence. In the Government’s opinion, a procedural deficiency in a judicial selection process should be taken to raise an issue under the “established by law” requirement only if the deficiency in question led to the appointment of an unqualified or ineligible person as a judge, which was not the case on the present facts. 182. In addition to these arguments, the Government contended that the appointment procedure had, overall, been open and transparent. They considered it important to stress that the initial proposal submitted by the Evaluation Committee had met with criticism in Parliament, both from the opposition and from the coalition parties. The criticism had been two-fold: first, it was considered that the Evaluation Committee’s proposal had disregarded gender equality, since of the fifteen candidates proposed, only five were women; second, it was considered that the Evaluation Committee had not given adequate weight to judicial experience. The list proposed by the Evaluation Committee would, therefore, have needed to be changed in any event and in her proposal to Parliament, the Minister of Justice had taken the relevant concerns into account. The Government further stressed that section 4 of the Minister of Justice’s Rules no. 620/2010 listed the objective factors on which the Committee was expected to base its assessment, but it did not say anything about the weight to be accorded to each assessment factor. The Committee had taken it upon itself to give judicial experience the same weight as litigation and administrative experience. The four candidates removed from the Evaluation Committee’s list by the Minister of Justice had received 0.5, 1.0, 3.5 and 5.5 for judicial experience according to the Committee’s assessment table, whereas the four candidates added to the list had received 9.5, 8.5, 7.0 and 6.0. A.E., who was among the female candidates proposed by the Minister, had a thirty-two year judicial career and had more judicial experience that any of the four candidates excluded from the list. That said, the proposal made by the Minister had not been based on objective numerical values; when she had proposed that more weight be given to judicial experience, this did not involve merely comparing the years of experience of the candidates, but also a subjective evaluation of their quality and capabilities. As to the gender equality considerations, the Government did not contest that such considerations only came into play under the Equality Act where candidates of different genders were “equally qualified”, but argued that, contrary to the findings of the Evaluation Committee, the Minister had considered more than fifteen candidates to be equally qualified for the post. 183. Having regard to the foregoing, the Government contended that the Minister’s approach had been entirely rational, even if it suffered from the technical flaws identified, and it had been subject to the safeguards provided by the requirements of parliamentary approval and Presidential appointment. While the requirements of the “sufficient investigation” rule under section 10 of the Administrative Procedures Act, which sought to ensure the factual accuracy of administrative decisions, applied strictly in the field of judicial appointments – given the importance of considerations such as the separation of powers and independence of judges – the Government argued that it was not absolutely certain what that requirement entailed in this specific field. In the present case, the Minister had provided reasoning for her proposals in good faith, yet that reasoning had been deemed insufficient by the Supreme Court. 184. A proper understanding of the Supreme Court judgment dated 24 May 2018 was essential in determining the correct approach to the present proceedings. It had been established in that judgment that A.E. was fully vested with legal office, that she had participated in the applicant’s case “in accordance with domestic law” and the Court of Appeal was, in determining that case, “established by law”. There was nothing arbitrary or manifestly unreasonable in the Supreme Court’s ruling that, even if there were shortcomings in the procedure preceding A.E.’s appointment, this did not entail that the Court of Appeal lacked competence to decide on the applicant’s case. It was therefore important not to confuse the legal effects of the procedural flaw in question regarding the other candidates (that is, the candidates who were removed from the list by the Minister of Justice) with the legal effects of the same flaw on the status of A.E. or on the applicant’s case. That procedural flaw was remote from the proceedings in that case. The Supreme Court had found that, as a matter of domestic law, A.E.’s status had been unaffected by the procedural flaws identified and that, therefore, the Court of Appeal did not lack competence to act as a “tribunal” as a result of A.E.’s presence. According to the Government, its competence in this sense was solely decided by the interpretation of domestic law. The Government argued that while the Chamber had accepted the Supreme Court’s conclusion as to the existence of flaws in the appointment procedure, it had disregarded the same court’s conclusion regarding the lack of any significant legal consequence of the flaw. The approach adopted by the majority implied that the legal effects of breaches of domestic law should not be assessed according to domestic law itself, but immediately and directly according to independent criteria laid down by the Chamber, and this would have the effect of detaching the violation of national law from its legal effects under national law. Referring in particular to the Supreme Court judgments concerning the candidates J.R.J. and Á.H., the Government stressed at the hearing before the Grand Chamber that A.E.’s appointment had been considered valid and effective as a matter of law. If the procedural defects identified had no implications or significance for A.E., then the logical conclusion was that they could not have any effect for the applicant either. 185. Contrary to the circumstances which had in the past led the Court to find a violation of the requirement of a “tribunal established by law”, the procedural rules that had been breached in the present case neither directly regulated the participation of Judge A.E. in the applicant’s case, nor had immediate effects for her presence on the bench. Therefore, A.E.’s participation in the examination of the applicant’s case had not been “irregular” according to the meaning given to that term in the Court’s case-law. The Government also underlined that the Supreme Court judgments of December 2017, on which the majority had relied so heavily, had not been delivered as part of the criminal proceedings against the applicant and had not concerned the question whether the Court of Appeal had been a “tribunal established by law”. 186. The Government further argued that, contrary to the majority’s finding, in its judgment of 24 May 2018 concerning the applicant the Supreme Court had not limited its examination to determining whether Judge A.E.’s appointment had been a “nullity” and whether the applicant’s trial had been fair despite the flaws in the procedure for the appointment of A.E., but had addressed all relevant matters, such as whether Judge A.E.’s appointment had been invalid and whether the applicant’s case had been heard by a “tribunal established by law”. Although the Supreme Court’s conclusion had been based on the Article 6 requirements of independence and impartiality, it no doubt also covered the “established by law” requirement under that provision. 187. The Government also explained, however, that while in theory it was possible for an Icelandic court to evaluate the lawfulness of a judicial appointment and to set aside a ruling in which an unlawfully appointed judge had participated, in practice the procedural flaws of the nature found in the present case would result in an award of damages to the candidates who had not been appointed as a result of the relevant flaws. There had not been a case in the past half-century which suggested that the flaws in question would or could lead to the invalidation of a judicial appointment. 188. In the Government’s view, the right to a “tribunal established by law” was distinct from the “right to an independent tribunal”, as it was a right specifically and directly related to domestic law. In contrast to the case-law relied upon by the majority in the Chamber, the present case was not about the assigning of a particular case to a particular judge – which could raise objective concerns of independence and impartiality – but concerned the general process of the appointment of a judge, with no link to any particular case. Unlike the other cases that the majority had cited, the procedural irregularities established by the Supreme Court here had happened long before the judge in question had taken part in the applicant’s case, they bore no connection with that case, and they carried no implications for the independence or the impartiality of the judge concerned. According to the case-law of the Court, a central issue in cases concerning the right to a “tribunal established by law” was whether the legal defect in any given case was relevant to any of the substantive protections of fairness, independence or impartiality in that case. 189. The Government argued moreover that, given the intervening role of Parliament, the relevant judicial organisation could not be said to have been dependent on the discretion of the executive. They explained in this connection that the special voting procedure before Parliament, as provided for under temporary provision IV, had sought to secure the credentials of the judges to be appointed and to seek consensus as to their appointment, in order to strengthen the legitimacy of those appointments and of the Court of Appeal as such. The legislative developments in the field of judicial appointments over recent decades had all sought to limit ministerial discretion in appointments, which had previously been a point of criticism in Iceland. While the Supreme Court had found that Parliament had failed to observe the voting procedure indicated in temporary provision IV, the Government contended that this was a matter of interpretation and that the flaw in question had not had any effect on the integrity of the process or on the results of the voting. The Government explained that the single vote held in Parliament had in any event been in accordance with the customary practice, and that no member of parliament had requested separate voting. There was, furthermore, no evidence to support the applicant’s allegation that the vote en bloc had been part of a conspiracy to force through the appointment of A.E., nor was there evidence to suggest that the result would have been any different had the proposals been voted on separately. 190. At the hearing before the Grand Chamber the Government put forward some additional arguments. They underlined that, as the Court of Appeal was a new court, there had been no established precedent at the material time as to the procedure to be followed when submitting proposals to Parliament for appointments to that court, or as to how Parliament would vote on such proposals. The Government further argued that recent developments in Iceland had shown that the Evaluation Committee had changed its assessment procedure since 2017 and had now adopted the practice of proposing more candidates than the number of advertised posts, which is what the Minister of Justice had requested from the Committee in the present case (see paragraphs 22 and 25 above). They referred in this connection to an assessment report delivered by the Evaluation Committee on 9 December 2019 in the context of an appointment to the office of Supreme Court judge, where the Committee had proposed three candidates as being the most qualified for one advertised post. 191. The Government also submitted affidavits from B.N. and the Minister to rebut the applicant’s allegations that the Minister’s decision had been driven by ulterior political motives. They argued, in particular, that the applicant’s unfounded allegations concerning the Minister and B.N. made no sense chronologically because at the time when the process for judicial appointments to the Court of Appeal was underway in May 2017, the next parliamentary elections were scheduled to be held in October 2020. It was only as a result of unforeseen developments that general elections were called on 15 September 2017, and that the elections were held prematurely in October 2017 – that is, some three years prior to the initially scheduled date. In these circumstances, it could not be argued that the Minister had proposed B.N.’s wife A.E. to the post of a Court of Appeal judge as part of a political deal to secure her Ministerial post in the new government. The Government added that not only was there a complete absence of material to support the applicant’s extraordinary allegations of bad faith against a wide range of persons and institutions, but also that none of those allegations had been made at the domestic level, which meant that the principle of exhaustion of domestic remedies prevented him from raising them before the Court now. 192. In response to a question put by the Court at the hearing as to the relationship of the right to a “tribunal established by law” with other requirements of a fair hearing, in particular with those of independence and impartiality, the Government submitted (as part of its written responses sent on 20 February 2020 – see paragraph 10 above) that there was a degree of relationship between all elements of a fair trial under Article 6 § 1. Accordingly, the “tribunal established by law” requirement was a facet of the overarching object of Article 6. In the Government’s view, the “established by law” requirement could be construed in one of two ways. Under the first approach, the function of the term “established by law” would be to emphasise that Article 6 required access to a body which had jurisdiction to take legally binding decisions, in that (i) the “tribunal” itself had a proper foundation in domestic law, and (ii) the bench trying a particular case was validly constituted as a matter of domestic law. Under the second approach, the term “established by law” would be construed as importing an additional requirement that there be no legal defect relating to a judge’s appointment that would “destroy the essence of the right to a fair hearing before an independent and impartial tribunal”. The Government argued that the first of these approaches was more consistent with the “ordinary meaning” interpretation rule under Article 31 of the Vienna Convention of 1969 on the Law of Treaties. The second approach, on the other hand, was not necessary in order to achieve the aims of Article 6: importing considerations of fairness, independence and impartiality into the “established by law” requirement would arguably duplicate protections provided elsewhere in Article 6, and obscure the specific function of that requirement. According to the Government, that function – reflected in the first approach identified above – was to ensure that the body hearing a case was legally competent to issue a binding determination in that particular case. 193. The Government lastly stated, in response to the comments received from third parties (see paragraphs 194-204 below), that the present case was wholly different from the kinds of situations mentioned in those interventions. In contrast to the alleged situation in Poland or Georgia, the approach of the Icelandic authorities in the present case had posed no conceivable threat to judicial independence. The third-party interveners (a) The Government of Poland 194. The Government of Poland stated at the outset that the case at issue concerned a matter of fundamental constitutional importance relating to the competence of State bodies in the context of judicial appointments. They argued that the practice of appointment of judges by the executive was widely accepted in Europe, and that such practice did not per se pose a problem under the case-law of the Court or that of the Court of Justice of the European Union. 195. The Government of Poland stressed the significance of the principle of subsidiarity in the Convention mechanism, and argued that the Chamber judgment had disregarded that principle and the margin of appreciation enjoyed by the respondent State’s authorities in implementing their relevant Convention obligations. They argued that the Court should not replace national authorities in determining the correct interpretation of national legislation, which is what the Chamber had done in the instant case by dismissing the findings of the Supreme Court of Iceland in respect of the applicant. The Chamber had, moreover, acted without due consideration for the enormous implications of its decision on the Icelandic judicial system, and on the judicial systems of other member States. They argued in this regard that in cases involving the right to a “tribunal established by law”, the Court’s practice had so far been limited to finding violations only where the breach of the domestic rules on judicial appointments had more serious consequences, such as where the bench had included a person who did not have the status of judge or who could not have been appointed to such office. (b) The Commissioner for Human Rights of the Republic of Poland 196. The Commissioner for Human Rights of the Republic of Poland (“the Polish Commissioner”), Mr Adam Bodnar, submitted that the expression “established by law” in Article 6 § 1 of the Convention should inevitably incorporate the process of judicial appointments. The Commissioner contended that not only should the legal basis, the jurisdiction and the composition of a tribunal be regulated in advance by law, but the law in question should also determine the criteria and the procedure for the appointment of judges, and the appointments should in turn be conducted in compliance with those provisions. Strict observance of such provisions was essential to prevent unlawful interference with the appointment procedure by other branches of government, in particular the executive, and thus to ensure the independence and impartiality of judges. Such strict compliance would also serve to build public trust in the administration of justice and thereby to enhance the democratic legitimacy of the judiciary. The Polish Commissioner considered that it was essential not only that judges be independent and impartial, but also that the procedure for their appointment appeared to be so. 197. The Polish Commissioner indicated his agreement with the Chamber that a flagrant breach of the domestic rules on the appointment of judges constituted a clear violation of Article 6 § 1 of the Convention. A finding of such flagrant breach would render redundant any further examination of the fair trial requirements under Article 6 § 1, since there could be no fair trial before an authority that lacked the attributes of a court of law. The Commissioner further supported the notion that instances of flagrant violation had to be fundamental in nature and form an integral part of the appointment process. Accordingly, only those breaches that had a substantial impact on the conduct and/or outcome of the process would pass the “flagrant breach” threshold. The intentional nature of the breach was also an important factor to be taken into consideration in this regard, as the European Union courts had also acknowledged. 198. The Polish Commissioner stressed that it fell to the Court in the present case to clarify the implications, from the perspective of legal certainty, of a finding that a domestic court had not been “established by law”. In the Commissioner’s view, the deliberate interference by the executive – or by the legislature, as the case may be – with the status of a judge in a manner incompatible with the Convention should override any arguments relating to the principle of legal certainty or irremovability of judges. This was particularly so if there was no mechanism available to review the lawfulness of a judicial appointment prior to the act of appointment. The Commissioner stated that acts aimed at intentionally circumventing or breaching applicable laws must not be rewarded by the acceptance of the situation thus created ( ex iniuria ius non oritur ). 199. As for the discussions concerning the principle of subsidiarity and the States’ margin of appreciation, the Polish Commissioner stated that the right to be tried by an independent and impartial tribunal established by law was an essential element of the right to a fair trial, and that the Convention standard in this regard was autonomous, in the sense of being independent from the relevant national standards established in respective member States. The Court therefore had the authority to assess whether that standard had been applied in a Convention compliant manner by the national authorities and courts, and such assessment did not per se contravene the principle of subsidiarity or the margin of appreciation doctrine. Denying the Court the authority to carry out its own review in this respect would render the very guarantee of Article 6 illusory. 200. The Polish Commissioner lastly submitted that the ruling of the Grand Chamber in the present case would be highly relevant for assessing the compliance of the current practice of judicial appointments in Poland with the Convention standards. The Commissioner drew the Court’s attention to the cases before the Court of Justice of the European Union in this regard, in particular to the judgment delivered by that Court on 19 November 2019 in the case of C ‑ 624/18 (noted in paragraph 138 above). The Commissioner informed the Court that relying on the findings in that judgment, the Polish Supreme Court (Chamber of Labour and Social Security) had found on 5 December 2019 that the National Council of the Judiciary – which had been tasked with making proposals to the President of the Republic for appointments to the Disciplinary Chamber of the Supreme Court – was not an independent and impartial body and that the Disciplinary Chamber could not be considered to be a “court”. In the Commissioner’s opinion, the judgment of the Court of Justice of the European Union had made it clear that the subsequent act of appointment by the President of Republic could not by itself repair a pre-existing deficiency in the appointment process, especially in the case of an ultra vires or improper exercise of authority, error of law, or manifest error of assessment. (c) The Public Defender (Ombudsman) of Georgia 201. The Public Defender of Georgia (“the Public Defender”), Ms Nino Lomjaria, provided an overview of the recent process for the selection and appointment of judges to the Supreme Court of Georgia, which had been subject to criticism both by her office and by various international bodies. The criticisms mainly centred around the lack of transparency of the appointment procedure and the absence of objective selection criteria, which seriously undermined the possibility of merit-based appointments. The Public Defender indicated that she had recently challenged the constitutionality of this process before the Constitutional Court of Georgia. While the Constitutional Court was yet to examine the merits of that claim, it had already confirmed that the right to a fair trial enshrined in the Constitution implied the right of a person to apply to a court composed in accordance with constitutional standards. 202. Referring to a number of international sources, and to the relevant case-law of the Court, the Public Defender stated that the method of selection and appointment of judges played a fundamental role in ascertaining the independence of a “tribunal”. She submitted that there could be no public trust in the judiciary when the judicial selection process was flawed, especially where such flaws called into question the independence of the judiciary. The Public Defender added that the requirement of a “tribunal established by law” would not be satisfied where the breach of the applicable domestic rules raised doubts as to whether a court would have been composed differently but for the breach at issue. The endorsement of these principles by the Grand Chamber was of crucial importance not only for the parties to the present case but for the Council of Europe member States as a whole. (d) Helsinki Foundation for Human Rights 203. The Helsinki Foundation for Human Rights (“the Helsinki Foundation”), a non-governmental organisation based in Poland, similarly submitted that the Grand Chamber’s ruling in the present case would have a considerable impact not only in Iceland, but also on other member States, including Poland. They referred in this connection to what they regarded as the “judiciary crisis” in Poland, which had arisen from the judicial reform procedure undertaken by the Polish Parliament between 2015 and 2018 and which had generated significant criticism at home and abroad, including before the Court of Justice of the European Union. 204. The Helsinki Foundation submitted that according to the Court’s case-law, as followed by the Court of Justice of the European Union, the manner in which judges were appointed was a factor which guided the assessment of judicial independence. Any violations of the rules of appointment, consisting in the increased involvement of political bodies in the judicial appointment process, could put the independence of the judiciary at risk. Such violations could, moreover, undermine the judiciary’s legitimacy, given that in a democratic State, the legitimacy of judges heavily depended on public confidence in their neutrality, objectivity and lack of political affiliation. Accordingly, violations of the rules on judicial appointments by the legislature and the executive seeking to achieve their political objectives could cause serious disruption to a national judicial system, as manifested by the recent developments in Poland. The Helsinki Foundation underlined that only strict adherence to the rules governing the judicial appointment process, in particular to those rules that sought to safeguard against improper political interference by other branches of the State, could ensure respect for the right to an independent and impartial “tribunal”. Tolerance for breaches of the rules on judicial appointment – such as on the ground that any flaws in the earlier stages of the appointment process could be cured subsequently by the official act of appointment – would risk paving the way for abuse of the process for political reasons and would be incompatible with the principle of the rule of law. The Court’s assessmentScope of the applicant’s complaint as regards the right to a “tribunal established by law” Scope of the applicant’s complaint as regards the right to a “tribunal established by law” Scope of the applicant’s complaint as regards the right to a “tribunal established by law” 205. The Grand Chamber considers that it must first determine the scope of the applicant’s complaint concerning the right to a “tribunal established by law”. 206. At the outset it should be pointed out that the present case does not raise an issue as to the lawful existence of the newly established Court of Appeal. It is indeed not disputed between the parties that the Court of Appeal was established by a law emanating from Parliament, namely the new Judiciary Act, the quality of which – in terms of its accessibility and foreseeability – has not been contested by the applicant. 207. The Grand Chamber is similarly not called upon to review the judicial appointment system that is in place in Iceland. As pointed out by the Venice Commission and the CCJE (see paragraphs 122 and 126 above), there are a variety of different systems in Europe for the selection and appointment of judges, rather than a single model that would apply to all countries. The Court reiterates in this connection that although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law, appointment of judges by the executive or the legislature is permissible under the Convention, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013). The question is always whether, in a given case, the requirements of the Convention are met (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, § 193, ECHR 2003 ‑ VI, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 46, 30 November 2010). 208. Nor is there any need for the Grand Chamber to determine whether the relevant domestic law on judicial appointments had been contravened during the process of Judge A.E.’s appointment to the newly constituted Court of Appeal. It notes in this connection that, in two separate judgments delivered on 19 December 2017 (see paragraphs 67-75 above), the Supreme Court of Iceland has already established that the relevant law had not been complied with in so far as the appointment of the four judges proposed by the Minister, including A.E., was concerned. Firstly, by replacing four of the candidates – whom the Evaluation Committee had considered to be among the fifteen best qualified for appointment to the Court of Appeal – with four others – who had not made it to the top fifteen according to the Evaluation Committee’s assessment – without carrying out an independent evaluation of the facts or providing adequate reasons for her decision, the Minister of Justice had breached section 10 of the Administrative Procedures Act. In this connection, she had also disregarded the well-established general principle of Icelandic administrative law that only the most qualified candidates should be selected to public posts. Secondly, the Icelandic Parliament had not held a separate vote on each individual candidate proposed by the Minister of Justice, as required under temporary provision IV of the new Judiciary Act. These findings were, moreover, repeated in the judgment delivered subsequently by the Supreme Court in the applicant’s case (see paragraph 90 above). 209. Reiterating that it is primarily for the national authorities, in particular the courts, to interpret and assess compliance with domestic law (see, for instance, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 186, 6 November 2018), the Court considers that there is no need to call into question the Supreme Court’s above-mentioned findings. The Grand Chamber should accordingly proceed on the basis that the process by which A.E. was appointed to the Court of Appeal breached some of the relevant rules of domestic law on judicial appointments. It otherwise notes that the legality of the appointments of the remaining eleven judges – who were considered the most qualified on the list submitted by the Evaluation Committee and were subsequently also included on the list of the Minister of Justice submitted before Parliament – is not at issue in the present case. 210. The task of the Grand Chamber in relation to the present complaint is, therefore, limited to determining the consequences of the above-mentioned breaches of domestic law for the purposes of Article 6 § 1, in other words to ascertaining whether Judge A.E.’s presence, in spite of the established irregularities in her appointment, on the bench of the Court of Appeal which heard the applicant’s appeal, deprived the applicant of the right to be tried by a “tribunal established by law”. Scope of the requirement of a “tribunal established by law” (a) General principles and overview of the Court’s existing case-law (i) The notion of a “tribunal established by law” 211. The Court reiterates that under Article 6 § 1 of the Convention, a court or tribunal must always be “established by law”. This expression reflects the principle of the rule of law which is inherent in the system of protection established by the Convention and the Protocols thereto, and which is expressly mentioned in the Preamble to the Convention (see, for example, Jorgic v. Germany, no. 74613/01, § 64, ECHR 2007-III). As the Court has previously held, a tribunal that is not established in conformity with the intentions of the legislature will necessarily lack the legitimacy required in a democratic society to resolve legal disputes (see Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002). 212. The Court further reiterates that “law”, within the meaning of Article 6 § 1 of the Convention, comprises not only legislation providing for the establishment and competence of judicial organs, but also any other provision of domestic law which, if breached, would render the participation of one or more judges in the examination of a case irregular (see Gorguiladzé v. Georgia, no. 4313/04, § 68, 20 October 2009; Pandjikidzé and Others v. Georgia, no. 30323/02, § 104, 27 October 2009; and Kontalexis v. Greece, no. 59000/08, § 38, 31 May 2011). This includes, in particular, provisions concerning the independence of the members of a court, the length of their term of office and their impartiality (see, for example, Gurov v. Moldova, no. 36455/02, § 36, 11 July 2006; DMD GROUP, a.s., v. Slovakia, no. 19334/03, § 59, 5 October 2010; and Miracle Europe Kft v. Hungary, no. 57774/13, § 48, 12 January 2016). 213. In other words, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by that tribunal with the particular rules that govern it (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006) and the composition of the bench in each case (see Richert v. Poland, no. 54809/07, § 43, 25 October 2011, and Ezgeta v. Croatia, no. 40562/12, § 38, 7 September 2017). (ii) The purpose of the requirement that a “tribunal” be “established by law” 214. The Court observes that under its case ‑ law, the object of the term “established by law” in Article 6 § 1 of the Convention is to ensure that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament (see Zand v. Austria, no. 7360/76, Commission’s report of 12 October 1978, Decisions and Reports 15, p. 70, § 69, and Miracle Europe Kft, cited above, § 51). 215. At the same time, although the Court has emphasised the growing importance attached to the notion of separation of powers and the importance of safeguarding the independence of the judiciary (see Baka v. Hungary [GC], no. 20261/12, § 165, 23 June 2016), it has also noted that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction (see, for instance, Ramos Nunes de Carvalho e Sá, cited above, § 144). In the Court’s opinion, a certain interaction between the three branches of government is not only inevitable, but also necessary, to the extent that the respective powers do not unduly encroach upon one another’s functions and competences. The question is, once again, whether in a given case the requirements of the Convention are met (see Kleyn and Others, and Henryk Urban and Ryszard Urban, both cited above). (iii) Review of the Court’s case-law 216. The Court has held that, in principle, a violation by a “tribunal” of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1 and that, therefore, it has jurisdiction to examine whether the domestic law has been complied with in this connection. However, having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court has also found that it may not question their interpretation unless there has been a flagrant violation of domestic law (see, mutatis mutandis, Lavents, § 114, and Kontalexis, § 39, both cited above). 217. A review of the Court’s existing case-law reveals that compliance with the requirement of a “tribunal established by law” has so far been examined in a variety of contexts – under both the criminal and civil limbs of Article 6 § 1 – including, but not limited to, the following: (i) a court acting outside its jurisdiction (see Coëme and Others v. Belgium, nos. 32492/96 and 4 others, §§ 107-09, ECHR 2000 ‑ VII, and Sokurenko and Strygun, cited above, §§ 26-28); (ii) the assignment or reassignment of a case to a particular judge or court (see DMD GROUP, a.s.,, cited above, §§ 62-72; Richert, cited above, §§ 41 ‑ 57; Miracle Europe Kft, cited above, §§ 59-67; Chim and Przywieczerski v. Poland, nos. 36661/07 and 38433/07, §§ 138-42, 12 April 2018; and Pasquini v. San Marino, no. 50956/16, §§ 103 and 107, 2 May 2019); (iii) the replacement of a judge without providing an adequate reason as required under the domestic law (see Kontalexis, cited above, §§ 42-44); (iv) the tacit renewal of judges’ terms of office for an indefinite period after their statutory term of office had expired and pending their reappointment (see Gurov, cited above, § 37, and Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 152-56, ECHR 2013); (v) trial by a court where some members of the bench were disqualified by law from sitting in the case (see Lavents, cited above, § 115, and Zeynalov v. Azerbaijan, no. 31848/07, § 31, 30 May 2013); (vi) trial by a bench the majority of which was composed of lay judges despite the absence of a legal basis in domestic law for the exercise of judicial functions as a lay judge (see Gorguiladzé, § 74, and Pandjikidzé and Others, § 110, both cited above); (vii) the participation of lay judges in hearings in contravention of the relevant domestic legislation on lay judges (see Posokhov v. Russia, no. 63486/00, §§ 39-44, ECHR 2003 ‑ IV); (viii) trial by lay judges who had not been appointed in compliance with the procedure established by the domestic law (see Ilatovskiy v. Russia, no. 6945/04, §§ 38-42, 9 July 2009); (ix) delivery of a judgment by a panel which had been composed of a smaller number of members than that provided for by law (see Momčilović v. Serbia, no. 23103/07, § 32, 2 April 2013, and Jenița Mocanu v. Romania, no. 11770/08, § 41, 17 December 2013); (x) conduct of court proceedings by a court administrator who was not authorised under the relevant domestic law to conduct such proceedings (see Ezgeta, cited above, § 44). (b) Refining the case-law principles 218. The instant case provides the Grand Chamber with an opportunity to refine and clarify the meaning to be given to the concept of a “tribunal established by law”, and to analyse its relationship with the other “institutional requirements” under Article 6 § 1 of the Convention, namely, those of independence and impartiality. The Court will therefore first analyse the individual components of that concept and discuss how the terms “tribunal”, “established” and “by law” should be interpreted so as to best reflect its purpose and, ultimately, to ensure that the protection it offers is truly effective. It will then examine the interaction between the requirement of a tribunal established by law and the conditions of independence and impartiality. (i) “Tribunal” 219. According to the Court’s settled case-law, a “tribunal” is characterised in the substantive sense of the term by its judicial function, that is to say, determining matters within its competence on the basis of legal rules and after proceedings conducted in a prescribed manner. It must also satisfy a series of further requirements, such as “independence, in particular of the executive; impartiality; duration of its members’ terms of office; ...” (see, for example, Belilos v. Switzerland, 29 April 1988, § 64, Series A no. 132). 220. In the Court’s view, in addition to the above, it is inherent in the very notion of a “tribunal” that it be composed of judges selected on the basis of merit – that is, judges who fulfil 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. 221. The Court notes, in this regard, the emphasis that is placed on these qualities of technical competence and moral integrity of judges in various prominent international texts as an aspect of the right to a fair trial before an independent and impartial “tribunal” established by law. It would refer in this connection to paragraph 25 of Opinion no. 1 (2001) of the CCJE, which recommends that “the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are ‘based on merit, having regard to qualifications, integrity, ability and efficiency’” (see paragraph 124 above). It further takes into account the international material cited in paragraphs 117, 129, and 145-147 above. 222. The Court is mindful that neither the characterisation of the Court of Appeal as a “tribunal”, nor the merits of the judges appointed to that court, are as such contested in the present case. It nevertheless emphasises the paramount importance of a rigorous process for the appointment of ordinary judges to ensure that the most qualified candidates – in terms of both technical competence and moral integrity – are appointed to judicial posts. It goes without saying that the higher a tribunal is placed in the judicial hierarchy, the more demanding the applicable selection criteria should be. It is further evident that non-professional judges could be subject to different selection criteria, particularly when it comes to the requisite technical competencies. In the Court’s view, such merit-based selection not only ensures the technical capacity of a judicial body to deliver justice as a “tribunal”, but it is also crucial in terms of ensuring public confidence in the judiciary and serves as a supplementary guarantee of the personal independence of judges [10]. (ii) “Established” 223. The Court reiterates that according to its settled case-law, the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the compliance by the court or tribunal with the particular rules that govern it and the composition of the bench in each case (see the cases cited in paragraph 213 above). The scope of application of the requirement of a “tribunal established by law” may, therefore, not be confined to instances where a judicial body lacked the competence to act as a court or tribunal under domestic law, as argued by the Government in paragraph 175 above. 224. The Court further observes, as the Government have also indicated (see paragraphs 185 and 188 above), that its case-law on the requirement of a “tribunal established by law” has so far 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. The question that needs to be answered for the purposes of the present case is whether breaches of domestic law that have occurred at the stage of the initial appointment of a judge to serve at a particular court may also be liable to violate the right to a “tribunal established by law”. 225. The Court notes in this connection that there is some precedent in its case-law pointing in that direction, such as the case of Ilatovskiy (cited above, §§ 39-42). That case concerned the conviction of an applicant (in 2002) by a district court composed of one professional judge and two lay judges, who had been appointed as lay judges in 1991 and 1999, respectively. Having established that the appointment of the lay judges in question had not been in compliance with the relevant domestic procedure in force at the material time, the Court concluded that the district court which had given the judgment against the applicant with those lay judges’ participation could not be regarded as a “tribunal established by law”. The judgment in Ilatovskiy, despite its differences from the present case, provides a clear example of a situation where irregularities in the appointment procedure may compromise the legitimacy of a court or tribunal, in which the appointed judges later participate, as one “established by law”. 226. This correlation between the procedure for the appointment of a judge and the “lawfulness” of the bench on which such a judge subsequently sits also finds support in the purpose of the “established by law” requirement, as explained in paragraph 214 above. That requirement reflects the principle of the rule of law and seeks to protect the judiciary against unlawful external influence, from the executive in particular (see paragraph 211 above), although it cannot be excluded that such unlawful interference may also emanate from the legislature or from within the judiciary itself. It moreover encompasses any provision of domestic law –including, in particular, provisions concerning the independence of the members of a court – which, if breached, would render the participation of one or more judges in the examination of a case “irregular” (see paragraph 212 above). The Court is aware that the process of appointment of judges may be open to such undue interference, and finds that it therefore calls for strict scrutiny; moreover, it is evident that breaches of the law regulating the judicial appointment process may render the participation of the relevant judge in the examination of a case “irregular”. 227. As the CCJE observed in an opinion issued in 2015, “[e]ach individual judge who is appointed in accordance with the constitution and other applicable rules thereby obtains his or her constitutional authority and legitimacy” (see paragraph 126 above), therefore suggesting that a judge appointed in contravention of the relevant rules may lack the legitimacy to serve as a judge. Having regard to its fundamental implications for the proper functioning and the legitimacy of the judiciary in a democratic State governed by the rule of law, the Court considers that the process of appointing judges necessarily constitutes an inherent element of the concept of “establishment” of a court or tribunal “by law”, and an interpretation to the contrary would defy the purpose of the relevant requirement. The Court reiterates in this connection that the Convention “is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see, for instance, Coëme and Others, § 98, cited above). 228. The Court also emphasises in this connection that, according to the results of the comparative survey that it has carried out, nearly half of the States surveyed (that is, nineteen out of forty) interpret the requirement of a “tribunal established by law” as clearly encompassing the process of the initial appointment of a judge to office. There is, therefore, already a considerable consensus among the States surveyed in this regard and this cannot be overlooked by the Court. The results further show that in many other States this matter remains undetermined; it cannot, therefore, be excluded that if a similar question were to arise in those States as well, the domestic courts could, in principle, interpret the requirement of a “tribunal established by law” as covering the process of judicial appointment. The Court lastly refers in this connection to the judgment delivered on 26 March 2020 by the CJEU in the cases of Simpson and HG, where it was acknowledged (by reference to the Chamber judgment in the present case) that the right to a “tribunal established by law” encompassed the process of appointing judges (see paragraphs 74 and 75 of the CJEU judgment noted in paragraph 137 above). (iii) “By law” 229. The nature and scope of the cases that have so far come before the Court in respect of the “tribunal established by law” requirement have mostly called for a determination as to whether a court overseeing a case had any legal basis in domestic law and whether the requirements arising from the relevant domestic law had been complied with in the constitution and functioning of that court. The Court wishes to clarify in this connection that, contrary to the Government’s arguments (see paragraph 175 above), it has interpreted the requirement of a “tribunal established by law” also to mean a “tribunal established in accordance with the law” (see, mutatis mutandis, Ilatovskiy, § 39; Momčilović, § 29; and Jenița Mocanu, § 37, all cited above). It considers this interpretation to be consonant with the general object and purpose of the relevant requirement and sees no reason to depart from it. 230. The Court would also like to emphasise at this juncture that the requirement that a tribunal be established “by law” in no way seeks to impose uniformity in the judicial appointment practices of the member States. As indicated above (see paragraph 207), the Court is well aware that there are varying judicial appointment systems across Europe, and the mere fact that the executive, in particular, has decisive influence on appointments – as is the case in many States Parties, where the restraints on executive powers by legal culture and other accountability mechanisms, coupled with a long-standing practice of selecting highly qualified candidates with an independent state of mind, serve to preserve the independence and legitimacy of the judiciary – may not as such be considered to detract from the characterisation of a court or tribunal as one established “by law”. The concern here relates solely to ensuring that the relevant domestic law on judicial appointments is couched in unequivocal terms, to the extent possible, so as not to allow arbitrary interferences in the appointment process, including by the executive. (iv) Interrelationship between the requirements of “independence”, “impartiality” and “tribunal established by law” 231. Although the right to a “tribunal established by law” is a stand ‑ alone right under Article 6 § 1 of the Convention, a very close interrelationship has been formulated in the Court’s case-law between that specific right and the guarantees of “independence” and “impartiality”. 232. In this connection, and as stated above (see paragraph 219), the Court has held that a judicial body which does not satisfy the requirements of independence – in particular from the executive – and of impartiality may not even be characterised as a “tribunal” for the purposes of Article 6 § 1. Similarly, when determining whether a “tribunal” is “established by law”, the reference to “law” comprises any provision of domestic law – including, in particular, provisions concerning the independence of the members of a court – which, if breached, would render the participation of one or more judges in the examination of a case “irregular” (see paragraph 212 above). The Court moreover notes that in order to establish whether a court can be considered to be “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members (see, for instance, Ramos Nunes de Carvalho e Sá, cited above, § 144), which, as discussed above (see paragraphs 224-228), pertains to the domain of the establishment of a “tribunal”. 233. Accordingly, while they each serve specific purposes as distinct fair-trial guarantees, the Court discerns a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers. The Court notes that the need to maintain public confidence in the judiciary and to safeguard its independence vis-à-vis the other powers underlies each of those requirements (see in this regard the object of the right to a “tribunal established by law”, as noted in paragraphs 214 and 215 above). In the Court’s view, the recognition of this close connection and common purpose does not, as the Government have argued (see paragraph 192 above), lead to the obscuring of their specific functions or to their duplication, but serves only to reinforce their respective objects and effects. 234. The Court takes the view, against this background, that the examination under the “tribunal established by law” requirement must not lose sight of this common purpose and must systematically enquire whether the alleged irregularity in a given case was of such gravity as to undermine the above-mentioned fundamental principles and to compromise the independence of the court in question. “Independence” refers, in this connection, to the necessary personal and institutional independence that is required for impartial decision-making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit – which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see, mutatis mutandis, Khrykin v. Russia, no. 33186/08, §§ 28 ‑ 30, 19 April 2011). Whether the irregularities in the present case amounted to a violation of the right to a “tribunal established by law”: the threshold test 235. Having confirmed the scope of the right to a tribunal established by law, the requirements that follow from that right and its relationship to the principles of independence and impartiality, it now falls on the Court to determine whether the irregularities encountered in the judicial appointment procedure at issue had the effect of depriving the applicant of his right to a “tribunal established by law”. Examination of that matter in turn raises the basic question whether any form of irregularity in a judicial appointment process, however minor or technical that irregularity may be, and regardless of when the breach may have taken place, could automatically contravene that right. (a) Is there a need to set a threshold test? 236. The Court considers at the outset that, having regard to the potential implications of finding a violation, and to the important countervailing interests at stake, the right to a “tribunal established by law” should not be construed in an overly expansive manner, whereby any and all irregularities in a judicial appointment procedure would be liable to compromise that right. A degree of restraint should instead be exercised when dealing with this matter. 237. The Court reiterates in this regard that the right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. As noted in paragraph 211 above, the right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society. That said, the principle of the rule of law also encompasses a number of other equally important principles, which, although interrelated and often complementary, may in some circumstances come into competition. 238. The Court firstly refers in this connection to the principle of legal certainty, which is implicit in all the Articles of the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 56, 20 October 2011; see also the Rule of Law Checklist prepared by the Venice Commission, paragraph 123 above, where legal certainty is identified as one of the benchmarks of the rule of law). Under Convention law, the principle of legal certainty manifests itself in different forms and contexts, such as requiring the law to be clearly defined and foreseeable in its application (see, for instance, Medvedyev and Others v. France [GC], no. 3394/03, § 80, ECHR 2010, in the context of Article 5 of the Convention), or requiring that where the courts have finally determined an issue, their ruling should not be called into question (see, for instance, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII). This latter aspect of legal certainty presupposes, in general, respect for the principle of res judicata, which, by safeguarding the finality of judgments and the rights of the parties to the domestic proceedings – including any persons involved as victims – serves to ensure the stability of the judicial system and contributes to public confidence in the courts. According to the Court’s settled case-law, while the requirements of the principle of legal certainty, and the force of res judicata, are not absolute (see, for an example in the criminal-law sphere, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 62, 11 July 2017), a departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as the correction of fundamental defects or a miscarriage of justice (see, for instance, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003 ‑ IX, and OOO Link Oil SPB v. Russia (dec.), no. 42600/05, 25 June 2009). These notions do not, however, lend themselves to precise definition; the Court has to decide, in each case, to what extent the departure from the principle of legal certainty is justified (see, for instance, Sutyazhnik v. Russia, no. 8269/02, § 35, 23 July 2009). 239. The Court secondly notes as relevant the principle of the irremovability of judges during their term of office. This principle is in general considered as a corollary of judges’ independence – which is a prerequisite to the rule of law – and thus included in the guarantees of Article 6 § 1 (see the principles on the irremovability of judges emerging from the Court’s case-law under Article 6 § 1 in Maktouf and Damjanović, cited above, § 49; Fruni v. Slovakia, no. 8014/07, § 145, 21 June 2011; and Henryk Urban and Ryszard Urban, cited above, § 53; see also paragraph 20 of General Comment no. 32 of the UN Human Rights Committee cited in paragraph 118 above; paragraph 57 of Opinion no. 1 (2001) of the CCJE, cited in paragraph 124 above; and Baka, cited above, §§ 72-87, for other relevant international material). However, as recently confirmed by the Grand Chamber of the CJEU in the case of Commission v. Poland (C ‑ 619/18), the principle of the irremovability of judges is similarly not absolute, although an exception to that principle would only be acceptable “if it is justified by a legitimate objective, it is proportionate in the light of that objective and inasmuch as it is not such as to raise reasonable doubt in the minds of individuals as to the imperviousness of the court concerned to external factors and its neutrality with respect to the interests before it” (see paragraph 139 above). 240. A finding that a court is not a “tribunal established by law” may, evidently, have considerable ramifications for the principles of legal certainty and irremovability of judges, principles which must be carefully observed having regard to the important purposes they serve. That said, upholding those principles at all costs, and at the expense of the requirements of “a tribunal established by law”, may in certain circumstances inflict even further harm on the rule of law and on public confidence in the judiciary. As in all cases where the fundamental principles of the Convention come into conflict, a balance must therefore be struck in such instances to determine whether there is a pressing need – of a substantial and compelling character – justifying a departure from the principle of legal certainty and the force of res judicata (see, for instance, Sutyazhnik, cited above, § 38) and from the principle of irremovability of judges, as relevant, in the particular circumstances of a case. 241. The Grand Chamber notes that, while it did not spell it out as such, the Chamber indeed attempted to strike such a balance by introducing a “flagrant breach” test, whereby only the gravest breaches of the judicial appointment rules would amount to a violation of the right to a tribunal established by law, thereby raising a high threshold before an infringement of such rules could give rise to a violation of Article 6 § 1 of the Convention (see paragraphs 101 et seq. of the Chamber judgment and paragraphs 156-159 above). 242. While the Grand Chamber endorses the logic and the general substance of the test introduced by the Chamber, which it will further develop below (see paragraphs 243-252 above), it should state at the outset that it will not apply the same “flagrant breach” concept here. It observes in this connection that the concept of a “flagrant breach” has so far been used by the Court in a variety of different contexts, including, as pertinent, to determine whether the Court may depart from a domestic court’s interpretation as to whether there had been a breach of the domestic law in the first place, as part of its assessment under the “tribunal established by law” requirement (see, for instance, Posokhov, §§ 39-44, and Kontalexis, § 44, both cited above). Transposing that concept to a context such as the present one – where the breach of the domestic law has already been established by domestic courts in an unequivocal manner – for the purpose of determining the consequences of that breach for the applicant’s right to a “tribunal established by law” may give rise to some ambiguity, as has been noted both in the dissenting opinion annexed to the Chamber judgment and in the Government’s submissions (see paragraph 176 above). (b) The threshold test developed by the Grand Chamber 243. The Court is mindful of the difficulties involved in devising a comprehensive balancing test to cater to the possible irregularities that may arise in the judicial appointment processes in different jurisdictions across Europe – all with their own rules and practices – and notes that many States have introduced various mechanisms or standards to deal with this complex matter domestically (see the findings of the comparative-law survey noted in paragraph 152-153 above). The Court further considers that the Contracting States should be afforded a certain margin of appreciation in this connection, since the national authorities are in principle better placed than the Court to assess how the interests of justice and the rule of law – with all its conflicting components – would be best served in a particular situation. It nevertheless considers that the following criteria, taken cumulatively, provide a solid basis to guide the Court – and ultimately the national courts – in an assessment of whether the irregularities in a given judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law and of whether the balance between the competing principles has been struck fairly and proportionately by the relevant State authorities in the particular circumstances of a given case. (i) The first step of the test 244. The Court considers in the first place that there must, in principle, be a manifest breach of the domestic law, in the sense that the breach must be objectively and genuinely identifiable as such. The Court notes, as mentioned in paragraphs 209 and 216 above, that it will in general cede to the national courts’ interpretation as to whether there has been a breach of the domestic law, unless the breach is “flagrant” (see Lavents, cited above, § 114) – that is, unless the national courts’ findings can be regarded as arbitrary or manifestly unreasonable (see, mutatis mutandis, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018, and S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018). 245. The Court emphasises, however, that 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. There may indeed 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 that Convention right (see, mutatis mutandis, DMD GROUP, a.s.,, cited above, §§ 62-72). In such circumstances, the Court must pursue its examination under the second and third limbs of the test set out below, as applicable, in order to determine whether the results of the application of the relevant domestic rules were compatible with the specific requirements of the right to a “tribunal established by law” within the meaning of the Convention. (ii) The second step of the test 246. Secondly, the breach in question must be assessed in the light of the object and purpose of the requirement of a “tribunal established by law”, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers. Accordingly, breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as judge who did not fulfil the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, as interpreted by the Court, must be considered to contravene that requirement. 247. The Court accordingly takes the view that only those breaches that relate to the fundamental rules of the procedure for appointing judges – that is, breaches that affect the essence of the right to a “tribunal established by law” – are likely to result in a violation of that right (see paragraph 102 of the Chamber judgment). In particular, as the Chamber rightly pointed out, the Court “must look behind appearances and ascertain whether a breach of the applicable national rules on the appointment of judges created a real risk that the other organs of Government, in particular the executive, [could exercise] undue discretion undermining the integrity of the appointment process to an extent not envisaged by the national rules in force at the material time” (see paragraph 103 of the Chamber judgment). (iii) The third step of the test 248. Thirdly, the Court considers that the review conducted by national courts, if any, as to the legal consequences – in terms of an individual’s Convention rights – of a breach of a domestic rule on judicial appointments plays a significant role in determining whether such breach amounted to a violation of the right to a “tribunal established by law”, and thus forms part of the test itself. 249. The Court finds it noteworthy to emphasise that if, as argued by the Government (see paragraphs 176 and 184 above), the national courts’ findings were considered to be fully dispositive of the assessment under the “tribunal established by law” requirement, regardless of the nature, scope and quality of the review conducted by those courts – that is, if the Court was not entitled to assess for itself whether the consequences of the breach of the domestic judicial appointment rules were such as to violate Article 6 – then this autonomous Convention right would be devoid of any real protection in the present context. 250. In this connection, the Court is mindful of its fundamentally subsidiary role in the supervisory mechanism established by the Convention, whereby the Contracting Parties have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto (see, for instance, Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017). It also notes, however, that the principle of subsidiarity imposes a shared responsibility between the States Parties and the Court, and that national authorities and courts must interpret and apply the domestic law in a manner that gives full effect to the Convention (see, in particular, the references to the İzmir and Brighton conferences and declarations in Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al., §§ 120-22, 12 October 2017). It therefore follows that while it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, it falls ultimately on the Court to determine whether the way in which that law is interpreted and applied produces consequences that are consistent with the principles of the Convention (see, for instance, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 191, ECHR 2006 ‑ V, and Carbonara and Ventura v. Italy, no. 24638/94, § 68, ECHR 2000 ‑ VI). 251. Evidently, as mentioned in paragraph 244 above, when examining whether there has been a breach of the relevant domestic rules in a given case, the Court will in principle defer to the national courts’ interpretation and application of domestic law – unless their findings are arbitrary or manifestly unreasonable. However, once a breach of the relevant domestic rules has been established, the assessment by the national courts of the legal effects of such breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom. Where the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its assessment for that of the national courts (see, mutatis mutandis, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 164, 27 June 2017). Accordingly, while the national courts have discretion in determining how to strike the relevant balance, as mentioned in paragraph 243 above, they are nevertheless required to comply with their obligations deriving from the Convention when they are carrying out that balancing exercise. 252. The Court lastly points out that while it is not within its competence to set a specific time-limit before which an irregularity in the appointment procedure could be challenged by an individual relying on the “tribunal established by law” right, it does not agree with the Government that the absence of such time-limit would in practice have the effect of rendering the appointments open to challenge indefinitely (see the Government’s argument in paragraph 180 above). This is because, with the passage of time, the preservation of legal certainty will carry increasing weight in relation to the individual litigant’s right to a “tribunal established by law” in the balancing exercise that must be carried out. Needless to say, account must also be taken of the evidential difficulties that would arise with the passage of time and of the relevant statutory time-limits that may be applicable in the domestic law of the Contracting Parties to challenges of such nature. (c) Application of the test to the circumstances of the present case 253. It now falls on the Court to determine whether the facts of the present case gave rise to a violation of the right to a “tribunal established by law”, in the light of the three-step test formulated above. (i) Whether there was a manifest breach of the domestic law 254. The Court observes, as already noted in paragraph 208 above, that the Supreme Court of Iceland found in its judgments of 19 December 2017 and 24 May 2018 that the domestic law had not been complied with in two respects during the process of appointment of the Court of Appeal judges: firstly, by reason of the Minister of Justice’s failure to carry out an independent evaluation of the facts or to provide adequate reasons for her departure from the Evaluation Committee’s proposal, which had been contrary to section 10 of the Administrative Procedures Act; and secondly, because of the non-compliance of Parliament with the special voting procedure set out in temporary provision IV of the new Judiciary Act. The Court reiterates its position that there is no reason to call into question the Supreme Court’s interpretation of the domestic law in this regard, which is also not disputed by the parties, and finds therefore that the first condition of the test is clearly satisfied. (ii) Whether the breaches of the domestic law pertained to a fundamental rule of the procedure for appointing judges 255. As noted in paragraph 246 above, when determining whether a particular defect in the judicial appointment process was of such gravity as to amount to a violation of the right to a “tribunal established by law”, regard must be had, inter alia, to the purpose of the law breached, that is, whether it sought to prevent any undue interference by the executive with the judiciary, and whether the breach in question undermined the very essence of the right to a “tribunal established by law”. With this in mind, the Court will commence its examination under this head by exploring the relevant legal framework in Iceland governing the judicial appointment procedure, with the aim of identifying its object and purpose. 256. A review of the legislative developments concerning the judicial appointment process in Iceland demonstrates that, following a number of reform procedures, an elaborate judicial appointment system was put in place progressively, whereby an Evaluation Committee – an administrative committee acting independently of the executive and composed of five [11] members appointed by the Minister of Justice – tasked with assessing the qualifications of the candidates and determining those most qualified for the post, played a central role. Under the latest legislative changes, the Evaluation Committee, which initially had advisory status only, was subsequently granted the power to issue binding recommendations for judicial appointments to courts at all three levels. While the law did allow the Minister, exceptionally, to deviate from the Committee’s assessment to a certain extent, use of such discretion was always subject to the control of Parliament (see paragraphs 19 and 105 above). 257. It appears from the preparatory material in respect of Act no. 92/1989 and Act no. 45/2010 (see paragraphs 11 and 14 above), as well as from the submissions of the parties before this Court and information obtained proprio motu from international sources (see paragraphs 161, 189, 120 and 128 above respectively), that the main aim behind the establishment of such mechanism was to limit the influence of the executive in the appointment of judges and thereby to strengthen the independence of the judiciary in Iceland. In their 2010 report submitted to the United Nations Human Rights Committee on the implementation of the ICCPR, the government of Iceland expressly stated that the relevant legislative changes had come about as a response to the growing concerns in that State that the rules governing the selection and appointment of judges did not sufficiently guarantee the independence of the judiciary, on account of the role played by ministers in the appointment process (see paragraph 120 above). Similarly, in its evaluation report on Iceland published in 2013, GRECO pointed out that “before the new [appointment] system applied, the Minister was not bound to follow the advice of the relevant judicial bodies when appointing a person to judicial office and indeed it happened in the past that appointments were made arbitrarily raising criticism as to political influence having filtered in the process” (see paragraph 128 above). 258. The Court notes that, as a supplementary guarantee against arbitrariness, the Supreme Court had made it clear as early as 2011 – at which point in time the Evaluation Committee enjoyed only an advisory role – that when using the statutory right to depart from the Committee’s assessment, the Minister of Justice had to base his or her decision on sufficient investigation and assessment, in accordance with the requirement under section 10 of the Administrative Procedures Act and the general principle of Icelandic administrative law calling for the appointment of the most qualified candidates to public posts (see paragraph 115 above). 259. In the light of the foregoing explanations, it now falls to the Grand Chamber to determine whether the breaches in the procedure for the appointment of the four judges proposed by the Minister, including A.E., were of such gravity as to impair the legitimacy of the appointment process and to undermine the very essence of the right to a “tribunal established by law”. (α) The breaches committed by the Minister 260. According to the explanations that she provided to Parliament (see paragraphs 44 and 47 above), the Minister’s decision to depart from the Evaluation Committee’s assessment was mainly motivated by the need to accord more weight to judicial experience in the assessment of the candidates – including subjective elements such as successful courtroom experience – and to achieve gender balance among the appointees. 261. The Court notes, by way of a preliminary remark, that the Evaluation Committee’s decision to accord the same weight to judicial experience as to litigation and administrative experience had been in line with the relevant legislation, which had highlighted the desirability of varied professional experience (see the relevant references in the preparatory material in respect of Act no. 45/2010 and section 21 of the new Judiciary Act in paragraphs 14 and 105 above), as well as with the continuous practice followed by the committee up to that date, for at least the past four years (see the remarks by the Chairman of the committee in paragraph 40 above). The Chairman had emphasised in this regard that changing the weightings after the submission of candidatures, for the benefit of particular candidates and to the disadvantage of others, had to be avoided (ibid.). 262. The Court further notes that the committee’s assessment method had also been in compliance with the gender balance requirements of the Equality Act (no. 10/2008). It observes in this connection that the Supreme Court of Iceland clearly stated in its judgments of 19 December 2017 that the Minister of Justice could not rely on considerations of gender under the Equality Act, as those were only applicable in cases where two candidates of different genders had been considered equally qualified, and that the inadequate investigation by the Minister was not such as to allow her to reach such a decision (see paragraph 73 above). 263. However, even supposing that the Evaluation Committee’s assessment had been flawed in these areas – or that the method used was too technical (see the Parliamentary Ombudsman’s report of 2016 cited in paragraph 116 above, which cautioned against the use of overly technical assessment methods in appointments to public posts in general) – and that, therefore, the Minister of Justice departed from the Committee’s opinion on legitimate grounds, the thrust of the Supreme Court’s finding in its December 2017 judgments was that the Minister had simply failed to explain why she had picked one candidate over another, as she was required to do under section 10 of the Administrative Procedures Act. The Minister’s disagreement with the Committee’s assessment method did not, therefore, absolve her from the obligation to provide solid reasons for her decision to depart from that neutral assessment. 264. The Court notes that the Government placed much emphasis in their observations on the argument that, according to the Committee’s assessment table, all four of the candidates introduced to the list by the Minister of Justice, including A.E., had scored more points in judicial experience than the four removed (see paragraph 182 above). While that is true, the Court agrees with the Supreme Court that this information alone does not suffice to explain why those four particular candidates were removed from the list, or why the other four particular candidates were added. It notes in this regard that in the original list prepared by the Evaluation Committee, there were candidates who had scored lower in judicial experience than the four removed – including two candidates who had not scored any points at all – who the Minister nevertheless decided to keep on the list. Similarly, among the eighteen candidates who had not been recommended by the Committee, there were those – including a female candidate – who had scored higher in judicial experience than some of the four eventually chosen by the Minister [12]. The Government explained that the Minister’s assessment had not been based on a purely mathematical exercise and that she had had regard to subjective factors such as the “success” of a candidate in his or her career. However, the absence of any further explanation as to how she had measured “success”, or any comparison of all the candidates from that perspective, calls into question the objectivity of the selection process. 265. In the Court’s opinion this uncertainty surrounding the Minister’s motives raises serious doubts of irregular interference by the Minister in the judiciary and thus taints the legitimacy of the whole procedure. This is particularly so considering that the Minister was a member of one of the political parties composing the majority in the coalition government, by whose votes alone her proposal was adopted in Parliament (see paragraph 53 above). Moreover, the Court cannot ignore, in this connection, the applicant’s allegations regarding the overall political context within which the Minister made her proposals (see paragraphs 46 and 89 above). While the Court would not affirm that the Minister acted out of political motives, as alleged by the applicant, it considers that the Minister’s actions were of such a nature as to prompt objectively justified concerns to that effect, and this is sufficient also to detract from the transparency of the selection process. 266. The Minister’s failure to comply with the relevant rules was all the more serious considering that she had been reminded of her legal obligations in this regard on a number of occasions, by her own legal advisers, the Chairman of the Evaluation Committee and the ad hoc Permanent Secretary of the Ministry of Justice (see paragraphs 36, 40-42 and 38 respectively above). The Court also refers in this connection to the Supreme Court’s finding in its December 2017 judgments that the Minister had acted “in complete disregard of [the] obvious danger” to the reputational interests of the shortlisted candidates whose names had been removed (see paragraph 75 above). It is therefore fair to conclude that the Minister’s actions seem to have been taken in full awareness of her obligations under the applicable domestic law. 267. Having regard to the breaches committed by the Minister of Justice, and to the circumstances in which they took place, the Court considers that they may not be downplayed as mere technical or procedural irregularities, as argued by the Government, but constitute grave irregularities that go to the essence of the right to a “tribunal established by law”. (β) The shortcomings in the procedure before Parliament 268. The Court observes that the former Judiciary Act, as amended by Act no. 45/2010, gave Parliament a key role in the procedure for the election of judges (see paragraphs 14 and 103 above). This role was further strengthened by the new Judiciary Act in the process of the first round of appointments of the new Court of Appeal judges, whereby Parliament was tasked with approving each of the fifteen candidates proposed by the Minister of Justice, regardless of whether the Minister had deviated from the Evaluation Committee’s proposals or not (see paragraphs 19 and 105 above). 269. In the instant case the Court considers, as also noted by the Supreme Court in its December 2017 judgments, that Parliament could have taken an informed position on the Minister’s proposal, and thus have performed a meaningful supervision of the appointment process, only if the Minister had given due reasons – based on adequate investigation and assessment – for her proposal to depart from the Evaluation Committee’s opinion, which she failed to do. However, contrary to the spirit of its statutory duty to safeguard the legitimacy of the appointment process, Parliament chose to overlook this important shortcoming. Consequently, “the deficiencies in the procedure before the Minister of Justice had in turn resulted in a flawed procedure before Parliament, as those deficiencies were not rectified when the matter came to a vote in Parliament” (see paragraph 74 above), as held by the Supreme Court. 270. The Court further notes that not only did Parliament fail to demand that the Minister provide objective reasons for her proposals to enable it to perform its duty effectively, but also – as the Supreme Court has acknowledged – it did not comply with the special voting rules set out in temporary provision IV of the new Judiciary Act by putting the Minister’s proposal to a vote en bloc, instead of voting on each candidate separately. Arguably, this failure on the part of Parliament would not, on its own, have amounted to a violation of the right to a “tribunal established by law”, particularly bearing in mind that the members of parliament had been offered the opportunity to request separate voting (see paragraphs 51-52 above; see also the Supreme Court’s finding noted in paragraph 70 above that the vote en bloc did not pose an irregularity in respect of the eleven candidates retained from the Committee’s original list). That said, the voting procedure surely compounded the grave breach already committed by the Minister of Justice in respect of the four candidates she had proposed and undermined Parliament’s role as a check against the exercise of undue executive discretion in judicial appointments. Accordingly, the applicant’s belief that Parliament’s decision was driven primarily by party political considerations may not be considered to be unwarranted. 271. The Court therefore considers that while the special parliamentary voting procedure provided for under the new Judiciary Act had sought to strengthen the legitimacy of the appointments to the newly established Court of Appeal (see the Government’s argument to this effect in paragraph 189 above), the intervention of Parliament did not produce the desired effect, on the instant facts – that is, Parliament did not fulfil its duty as the guarantor of the lawfulness of the appointments procedure as regards the four candidates in question. (γ) Concluding remarks under the second step of the test 272. In the light of the foregoing, the Court considers that there has been a grave breach of a fundamental rule of the procedure for appointing judges to the Court of Appeal in the instant case. The Court will therefore turn to the third step of the test, namely that of the review conducted by the domestic courts. (iii) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts (α) The review conducted by the Supreme Court in the applicant’s case 273. As noted in detail in paragraph 89 above, the applicant argued before the Supreme Court that he had been denied the right to a fair hearing before an independent and impartial “tribunal established by law” on account of the irregularities in the appointment of Judge A.E., who had sat on the bench of the Court of Appeal in his case. He maintained in this connection, inter alia, that the requirement both under the Icelandic Constitution and the Convention for a court to be established by law entailed “not only a mandatory condition that general rules on appointments to the judiciary must be clearly enshrined in statute law, but also, and no less importantly, a mandatory condition that the appointment of judges in each instance must be in compliance with the law”. Contrary to the Government’s allegations (noted in paragraph 191 above), the applicant also raised before the Supreme Court his concerns about the political motivations behind the Minister’s proposals, and expressly mentioned his suspicions regarding her involvement with B.N. (see paragraph 89 above). 274. The Court notes that the Supreme Court dismissed the applicant’s appeal following two main lines of argument (see paragraph 90 above). It first found that although the vote held in Parliament had not complied with the special voting procedure set out in temporary provision IV of the new Judiciary Act, this defect was not significant and the appointment process had otherwise been conducted in accordance with the formal procedures set out in that Act and that temporary provision. Bearing this in mind, and noting in addition that all thirty ‑ three candidates had fulfilled the legal requirements to hold the office of judge at the Court of Appeal, and that fifteen of those candidates had moreover been appointed to such office by letters signed by the President of Iceland and co-signed by the Minister of Justice, the Supreme Court held that it could not be concluded that the appointment of A.E. had constituted a “nullity” ( markleysa ) or that the judgments delivered with her participation had been a “dead letter”. 275. Secondly, the Supreme Court acknowledged that the procedure followed by the Minister of Justice in the appointment process had not complied with certain national rules on judicial appointments, as already established in its judgments of 19 December 2017. It held, nevertheless, that the appointment of all fifteen judges to the Court of Appeal, for an indefinite term, had “become a reality” upon the signing of the letters of appointment by the President, and from that time onwards, they had been under an obligation to follow only the law in the performance of their duties and to perform those duties independently. In those circumstances, the Supreme Court found no sufficient reason to justifiably doubt that the applicant had enjoyed a fair trial before independent and impartial judges, in spite of the flaws in the procedure attributable to the Minister of Justice. 276. In his observations submitted to the Court, the applicant argued that the judgment in question had been defective because the Supreme Court (i) had contradicted its earlier findings in the judgments of December 2017 and (ii) had failed to carry out a proper review of the Court of Appeal’s compliance with the “established by law” requirement in the light of the relevant principles established in the Court’s case-law, or to examine independently whether the breaches at issue had been “serious” or not (see paragraph 162 above). 277. The Government, for their part, stated that the Supreme Court had examined and addressed all relevant matters concerning A.E.’s appointment and the applicant’s right to be heard by a “tribunal established by law”. Following such examination, the Supreme Court had found that, as a matter of domestic law, A.E.’s status as a lawfully appointed judge had been unaffected by the procedural flaws identified and that, therefore, the Court of Appeal did not lack competence to act as a “tribunal” by virtue of A.E.’s presence on its bench. It was essential in this regard not to confuse the legal effects of the procedural flaw in question regarding the other candidates with the legal effects of the same flaw on the status of A.E. as a judge or on the applicant’s case. The Government contended that the principle of subsidiarity required the Court to follow the Supreme Court’s findings in this connection (see paragraphs 174, 184 and 186 above). (β) The Court’s analysis of the review conducted by the Supreme Court 278. The Court notes that the Supreme Court had the power to address and remedy the effects of the above-mentioned irregularities on the applicant’s fair-trial rights by declaring that he had not been tried by a “tribunal established by law” – on account of the participation of Judge A.E. in his case at the Court of Appeal level – and by quashing the relevant Court of Appeal judgment. It is uncontested that in its judgment of 24 May 2018 concerning the applicant, the Supreme Court endorsed its earlier findings regarding the breaches committed by the Minister and Parliament in the process of appointments to the Court of Appeal. The Court agrees with the applicant, however, that when subsequently examining the impact of those breaches on his right to a “tribunal established by law”, the Supreme Court appears to have failed to draw the necessary conclusions from its own findings and to assess the matter in a Convention-compliant manner. 279. In this connection, while the Government contest that finding (see paragraph 186 above), a review of the Supreme Court’s judgment strongly suggests that the Supreme Court limited its examination to finding (i) that the appointment of A.E. had not constituted a “nullity” under Icelandic law and (ii) that despite the flaws in the appointment procedure, the applicant had nevertheless enjoyed a fair trial before an independent and impartial “tribunal” (see paragraphs 113 and 114 of the Chamber judgment). In reaching these findings, the Supreme Court seems to have placed a great deal of emphasis on the mere fact that the appointments had become official upon signature by the President and that, from that point onwards, there was no reason to doubt that the fifteen Court of Appeal judges, all of whom had been found to be legally qualified for the post by the Evaluation Committee, would perform their tasks independently and in accordance with the law. 280. The Court has no reason to doubt that the appointments at issue did not, technically speaking, constitute a nullity ( markleysa ) under Icelandic law or that, once appointed, the individual judges would endeavour to observe the fair-trial requirements. However, none of those findings address as such the question whether the irregularities in the process leading to the appointment of A.E. had, by and of themselves, interfered with the applicant’s right to a “tribunal established by law” as a distinct Article 6 safeguard, as interpreted by the Court. 281. The Court observes, as noted in paragraphs 89 and 273 above, that the applicant had raised some very specific and highly pertinent arguments as to why he considered the breaches at issue to violate, inter alia, the requirement that he be tried by an independent and impartial tribunal and one “established by law”. The Supreme Court did not, however, respond to any of those allegations – including the allegations about political connections between the Minister of Justice and Judge A.E.’s husband, B.N. To the extent that the Government have argued that “the Supreme Court had examined all relevant matters concerning A.E.’s appointment and the applicant’s right to be heard by a tribunal established by law”, the Court notes that such examination is not reflected in the judgment, and as such it remains unknown what that examination entailed and on what legal and factual grounds the Supreme Court reached the conclusion that it did. In other words, it is not clear from the Supreme Court’s judgment why the procedural breaches it had identified in its earlier judgments (dated 19 December 2017) were not of such a nature as to compromise the lawfulness of the appointment of A.E. and, consequently, of her subsequent participation in the applicant’s case. 282. In the Court’s opinion, the way in which the Supreme Court’s judgment was constructed, and the particular emphasis on the fact that the appointments of the fifteen judges, including A.E., had “bec[o]me a reality upon the signing of their letters of appointment” (see paragraph 90 above), suggests an acceptance, or even a resignation, on the part of that court that it had no real say over the matter once the appointments had become official. This understanding in fact finds support in the Government’s submissions: it appears from their statement that, although, in theory, the Icelandic courts had the power to verify the lawfulness of judicial appointments and to quash judgments in which unlawfully appointed judges had participated, procedural breaches of the type encountered in the present case would, in practice, only result in an award of damages to the unsuccessful candidates. Thus there had “not been a case in the past half-century which suggested that the flaws in question would or could lead to the invalidation of a judicial appointment” (see paragraph 187 above). 283. The Court therefore notes that the restraint displayed by the Supreme Court in examining the applicant’s case – and the failure to strike the right balance between preserving, in particular, the principle of legal certainty on the one hand, and upholding respect for the law on the other – was not specific to the facts of the instant case, but it was the Supreme Court’s settled practice. The Court finds that this practice poses problems for two main reasons. It considers in the first place that it undermines the significant role played by the judiciary in maintaining the checks and balances inherent in the separation of powers. It notes secondly that, having regard to the significance and the implications of the breaches in question – as discussed above – and to the fundamentally important role played by the judiciary in a democratic State governed by the rule of law, the effects of such breaches may not justifiably be limited to the individual candidates who have been wronged by non-appointment, but necessarily concern the general public. The Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties (see, for instance, Morice v. France [GC], no. 29369/10, § 128, ECHR 2015; Baka, cited above, § 164; and Denisov v. Ukraine [GC], no. 76639/11, § 63, 25 September 2018). The Court also refers in this connection to Opinion no. 1 (2001) of the CCJE, where it was stated that “[n]ot merely the parties to any particular dispute, but society as a whole must be able to trust the judiciary” (see paragraph 124 above). 284. As regards the balance that should have been struck by the Supreme Court between the competing interests at play, the Court deems it important to stress that while the passage of a certain period of time after an allegedly irregular judicial appointment process may in principle tip the balance in favour of “legal certainty” (as stated in paragraph 252 above), that was not the case on the present facts. It notes in this connection that as a result of the proceedings brought by two of the unsuccessful candidates in June 2017 (very shortly after the signing of the appointment letters by the President), the irregularities in the appointment procedure were established by the Supreme Court as early as 19 December 2017, barely two weeks prior to the date on which the fifteen selected candidates even took office. Moreover, the applicant in the present case requested the withdrawal of A.E. on 2 February 2018, that is only one month after she had begun serving, and the final judgment of the Supreme Court in his case was rendered on 24 May 2018, less than four months later. In other words, the appointment of A.E. and the other three candidates in question was contested at the national level immediately after the finalisation of the appointment procedure and the irregularities that vitiated their appointment had been established even before they took office. In these circumstances, the Court considers that the Government cannot reasonably rely on the principles of legal certainty or the security of judicial tenure to argue against a violation of the right to a “tribunal established by law” on the present facts. 285. On a related note, the Court also rejects the argument that the irregularities at issue were too “remote” from the applicant’s case to have had any impact on his right to a tribunal established by law. The Government claimed in this regard that the irregularities had occurred long before Judge A.E. had sat in the applicant’s case, bore no connection with his case and carried no implications for the independence or impartiality of A.E. (see paragraph 188 above). In the Court’s opinion the requisite “proximity” between the irregularities at issue and the applicant’s case was attained when, and only when, the irregularly appointed judge, A.E., sat on the bench of the Court of Appeal which heard his case. The Court notes that the applicant presumably had not had any legal interest, or standing, to contest A.E.’s appointment at an earlier stage. Moreover, the question whether the irregularities at issue had any actual implications for A.E.’s independence or impartiality, this being at the centre of the Supreme Court’s examination of the applicant’s case, did not as such have a direct bearing on the assessment of his separate complaint under the “tribunal established by law” requirement, as already noted in paragraph 280 above. 286. Having regard to the foregoing, the Court, as the ultimate authority on the application and interpretation of the Convention, cannot accept the review undertaken by the Supreme Court in the applicant’s case, as it had no regard to the question whether the object of the safeguard enshrined in the “established by law” concept had been achieved (for other examples where the Court rejected the domestic courts’ assessment regarding compliance with the “tribunal established by law” requirement, see, inter alia, Miracle Europe Kft, § 65, and Chim and Przywieczerski, §§ 138-42, both cited above). (iv) Overall conclusion as to whether there has been a breach of Article 6 § 1 of the Convention as regards the right to a tribunal established by law 287. Over the past decades, the legal framework in Iceland governing judicial appointments has seen a number of important changes aimed at limiting ministerial discretion in the appointments process and thereby strengthening the independence of the judiciary. Controls on ministerial power were further intensified in connection with the process for the appointment of the judges to the newly established Court of Appeal, where Parliament was tasked with approving every candidate proposed by the Minister of Justice, whether that proposal followed the Evaluation Committee’s assessment or not, in order to enhance the legitimacy of that new court. 288. However, as established by the Supreme Court of Iceland, that legal framework was breached during the process for the appointment of the new Court of Appeal judges, particularly by the Minister of Justice. While the Minister was authorised under the relevant law to depart from the Evaluation Committee’s proposal – subject to certain conditions – she had, on the present facts, 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 that would undermine the independence and the legitimacy of the Court of Appeal, and its breach in the present circumstances was tantamount to restoring the discretionary powers previously held by her office in the context of judicial appointments, thereby neutralising the important gains and guarantees brought by successive legislative reforms. The Court notes that there were further legal guarantees in place to remedy the breach committed by the Minister, such as the procedure before Parliament and the ultimate safeguard of judicial review of the procedure before domestic courts; however, as discussed above, all those safeguards proved ineffective, and the discretion used by the Minister to depart from the Evaluation Committee’s assessment remained unfettered. 289. In the light of the foregoing and having regard to the three-step test set out above, the Court considers that the applicant has been denied his right to a “tribunal established by law”, on account of the participation in his trial of a judge whose appointment procedure was vitiated by grave irregularities that impaired the very essence of the right at issue. 290. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention in this regard. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS the RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL 291. The applicant complained that he had been denied the right to an independent and impartial tribunal as provided for in Article 6 § 1 of the Convention, having regard to the presence of A.E. on the bench of the Court of Appeal which ruled on his case, in spite of the deficiencies in her appointment. The Chamber judgment 292. The Chamber declared this complaint admissible in its judgment of 12 March 2019, but did not deem it necessary to examine it separately on the merits, in view of the conclusion it had reached in respect of the applicant’s other complaint – concerning the right to a “tribunal established by law” – under the same provision (see paragraph 126 of the Chamber judgment). The parties’ submissions 293. The applicant mainly argued that, in assessing whether a tribunal satisfied the requirement of independence under Article 6 § 1, it was necessary to examine, inter alia, the manner of appointment of its members and to determine whether the tribunal presented an appearance of independence. Having regard to the irregularities in the procedure leading to the appointment of A.E., it could not be held that the Court of Appeal which ruled in his case had had the appearance of an independent and impartial tribunal. During the proceedings before the Grand Chamber, he supported this allegation with some supplementary arguments – such as the instrumental role allegedly played by the irregularly appointed judges in the election of the Court of Appeal’s current president, who enjoyed full discretion in the allocation of the cases within that court – which, in his opinion, further demonstrated the lack of independence and impartiality of the Court of Appeal. 294. The Government argued, by reference to the criteria for an independent and impartial tribunal as set out under the Court’s case-law, that neither the procedural flaw identified by the Supreme Court in the appointment process, nor any other aspect of her appointment, could be taken to cast doubt on A.E.’s independence or impartiality as a judge. They noted in this regard that A.E. was a professional judge who had been recognised by the Evaluation Committee to be eligible for appointment. They further noted that according to the Court’s settled case-law, the appointment of judges by the executive or the legislature was permissible, provided that appointees were free from influence or pressure when carrying out their adjudicatory role (see, for instance, Maktouf and Damjanović, cited above). The Court’s assessment 295. The Court notes that, in the present case, the complaints under the “tribunal established by law” and “independence and impartiality” requirements stem from the same underlying problem, that is, the irregularities in the appointment of A.E. as a judge of the Court of Appeal. As the Court has found above, the irregularities in question were of such gravity that they undermined the very essence of the right to be tried by a tribunal established in accordance with the law. Having made that finding, the Court concludes that the remaining question as to whether the same irregularities have also compromised the independence and impartiality of the same tribunal does not require further examination (see, mutatis mutandis, Zeynalov, § 28, and Miracle Europe Kft, §§ 57-67, both cited above). APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 296. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 297. Article 46 of the Convention provides: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” Article 41 of the ConventionDamage Damage Damage 298. Before the Chamber the applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage. The Government objected to that claim as excessively high, and argued that the finding of a violation would in itself constitute just satisfaction for any non-pecuniary damage sustained by the applicant. 299. The Chamber agreed with the Government that the finding of a violation of Article 6 § 1 of the Convention constituted in itself sufficient just satisfaction. 300. In the proceedings before the Grand Chamber the applicant did not alter his submissions under this head. The Government, for their part, did not comment on this point before the Grand Chamber. 301. The Grand Chamber considers that a finding of a violation can be regarded as sufficient just satisfaction in the present case, and thus rejects the applicant’s claim under this head. Costs and expenses 302. In the Chamber proceedings the applicant claimed EUR 26,795 for the costs and expenses incurred before the domestic courts, including the legal fees awarded by the Court of Appeal in the amount of approximately EUR 3,590. He also claimed EUR 20,150 for the costs and expenses incurred before the Court. The Government submitted in response that the legal fees awarded by the Court of Appeal had been paid by the Treasury in accordance with the Criminal Procedure Act and that the applicant had not submitted any invoice demonstrating that he had reimbursed the Treasury for that amount. The Government further asserted that the costs claimed before the domestic courts and the Court were excessively high. 303. The Chamber considered it reasonable to award the applicant the sum of EUR 15,000 covering costs under all heads. 304. Before the Grand Chamber the applicant repeated his claim for the costs and expenses incurred before the domestic courts (EUR 26,795). He also claimed EUR 95,472 for the costs and expenses incurred before the Court (that is, EUR 20,150 in respect of the Chamber proceedings and EUR 75,322 in respect of the Grand Chamber proceedings). The costs and expenses incurred before the Court included, in particular, lawyer’s fees in the amount of approximately EUR 86,200, as well as translation costs of approximately EUR 6,760 and travel expenses of approximately EUR 1,250. 305. In support of his claims, the applicant submitted invoices issued by his representative, showing that the latter had carried out a total of 387 hours’ work on the case (112 hours before the domestic instances and 275 hours on the application submitted to the Court, at an hourly rate of approximately EUR 255, plus 24% value-added tax), together with invoices documenting the translation and travel expenses. He did not, however, submit any proof to counter the Government’s earlier allegation that he had not reimbursed the Treasury for the legal fees awarded by the Court of Appeal. 306. The Government did not comment on the applicant’s claim for costs and expenses in the Grand Chamber proceedings. 307. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part (see A, B and C v. Ireland [GC], no. 25579/05, § 281, ECHR 2010). 308. The Court notes at the outset that the applicant’s costs and expenses before the domestic courts were incurred only partially to prevent or rectify a violation of a Convention right in the instant case; it further notes that the costs before the Court of Appeal were met in part by the Treasury and that the costs before the District Court bore no relation to the violation found. The Court further finds that the number of hours claimed and the total amount of legal costs requested – both domestically and in connection with the proceedings before the Court – appear excessive (see, for instance, Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 190, 17 May 2016). 309. In the light of the above considerations, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 20,000 covering costs and expenses under all heads. Default interest 310. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. Article 46 of the Convention 311. The Court reiterates that under Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII, and Stanev v. Bulgaria [GC], no. 36760/06, § 254, ECHR 2012). 312. The Court further notes that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 ‑ IV), provided that such means are compatible with the conclusions and spirit of the Court’s judgment (see, for instance, Scozzari and Giunta, cited above, § 249, and Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13, §§ 148-49, 29 May 2019). However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measures that might be taken to put an end to the situation – often a systemic one – which has given rise to the finding of a violation (see, for instance, Ilgar Mammadov, cited above, § 153). 313. Turning to the facts before it, the Court notes that the applicant’s representative was expressly asked at the hearing whether the applicant would seek the reopening of the criminal proceedings against him in the event of a finding of a violation of Article 6 in the instant case, and the representative responded in the negative. While the applicant’s representative has subsequently requested – in his written response to the questions from judges at the hearing (see paragraph 10 above) – to retract that statement, the Court considers that this subsequent request may not be taken into account in the absence of sufficient justification to explain the change in the applicant’s previous position. 314. The Court further considers that in accordance with its obligations under Article 46 of the Convention, it falls upon the respondent State to draw the necessary conclusions from the present judgment and to take any general measures as appropriate in order to solve the problems that have led to the Court’s findings and to prevent similar violations from taking place in the future. That being said, the Court would emphasise that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation under the Convention to reopen all similar cases that have since become res judicata in accordance with Icelandic law.
The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the applicant had been denied his right to a tribunal established by law on account of the participation in his trial of a judge whose appointment had been undermined by grave irregularities which had impaired the very essence of that right. In particular, given the potential implications of finding a violation and the important interests at stake, the Court took the view that the right to a tribunal established by law should not be construed too broadly such that any irregularity in a judicial appointment procedure would risk compromising that right. It thus formulated a three-step test to determine whether irregularities in a judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law. It then proceeded to find as follows. Over the past decades, the legal framework in Iceland governing judicial appointments had seen some important changes aimed at limiting ministerial discretion in the appointments process and thereby strengthening the independence of the judiciary. Controls on ministerial power had been further intensified in connection with the appointment of judges to the newly established Court of Appeal, where Parliament had been tasked with approving every candidate proposed by the Minister of Justice, in order to enhance the legitimacy of this new court. However, as found by the Icelandic Supreme Court, this legal framework had been breached, particularly by the Minister of Justice, when four of the new Court of Appeal judges had been appointed. While the Minister had been authorised by law to depart from the Evaluation Committee’s proposal, subject to certain conditions, she had disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This rule was an important safeguard to prevent the Minister from acting out of political or other undue motives that would undermine the independence and legitimacy of the Court of Appeal, and its breach had been tantamount to restoring the discretionary powers previously held by her office in the context of judicial appointments, thereby neutralising the important gains and guarantees of the legislative reforms. Lastly, the Court recalled that here had been further legal guarantees in place to remedy the breach committed by the Minister, such as the parliamentary procedure and the ultimate safeguard of judicial review before domestic courts, but all those safeguards had proved ineffective, and the discretion used by the Minister to depart from the Evaluation Committee’s assessment had remained unfettered.