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

Author: Ketevan Kukava

This post was originally published on the ECHR Blog.

Facts of the Case

The case of Guðmundur Andri Ástráðsson v. Iceland, decided on 1 December 2020, provided the Grand Chamber of the European Court of Human Rights (ECtHR or the Court) with an opportunity to refine the concept of a “tribunal established by law”. This case addresses the issue of judicial appointments and the way the irregularities in this process can lead to a violation of the right to a fair trial.

The case concerned the irregularities in the procedure for the appointment of a judge of the newly-established Court of Appeal of Iceland. The Minister of Justice breached domestic law by removing from the list of fifteen candidates, assessed as the most qualified by the Evaluation Committee, four candidates and replacing them with four other candidates who had been ranked lower. The Minister had proceeded in that manner without an independent examination of the merits of the candidates in question and without substantiating her decision. Moreover, the Parliament had not held a separate vote on each candidate, as required by domestic law, but instead voted in favour of the Minister’s list en bloc. 

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

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

In a judgment of 12 March 2019, a chamber of the ECtHR found, by five votes to two, that there had been a violation of the right to a fair trial as the judicial appointment procedure contravened the very essence of the principle that a tribunal must be established by law. The Grand Chamber in a judgment of 1 December 2020 also found a violation of Article 6(1) of the Convention, unanimously even. The Grand Chamber’s decisive test was whether there had been a “flagrant” breach of domestic law in the process of appointment of judges.

The Grand Chamber Judgment

In the case of Guðmundur Andri Ástráðsson v. Iceland, the ECtHR broadened the scope of the concept of a “tribunal established by law”. The Court’s case-law on the requirement of a “tribunal established by law” had predominantly concerned breaches of domestic rules directly regulating the competence of a tribunal to rule on a particular case, or of those rules which had immediate effects on the composition of a tribunal hearing an applicant’s case. In this case, the Grand Chamber had to answer the question of whether breaches of domestic law that have occurred at the stage of the initial appointment of a judge may violate the right to a "tribunal established by law".

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

The Court emphasized that a finding that a court is not a “tribunal established by law” might have considerable ramifications for the principles of legal certainty and irremovability of judges. Therefore, a balance must be struck between competing interests (§240). The Grand Chamber developed a threshold test and elaborated on three cumulative criteria to determine whether the irregularities in a judicial appointment procedure are of such gravity as to entail a violation of the right to a “tribunal established by law”:

1. A manifest breach of the domestic law - the breach must be objectively and genuinely identifiable as such;

2. The ability of the judiciary to perform its duties free of undue interference - breaches that wholly disregard the most fundamental rules in the appointment procedure – such as, for instance, the appointment of a person as a judge who did not fulfill the relevant eligibility criteria – or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement, must be considered to violate that requirement;

3. National courts’ interpretation and application of domestic law - the review conducted by national courts, if any, plays a significant role in determining whether such breach amounted to a violation of the right to a “tribunal established by law” unless their findings are arbitrary or manifestly unreasonable.

In the light of the three-step test, the Grand Chamber found the violation of the right to a fair trial. There was a manifest breach of the domestic law in two respects as acknowledged by the Supreme Court of Iceland: firstly, the Minister of Justice failed to provide adequate reasons for her departure from the Evaluation Committee’s proposal; secondly, Parliament did not comply with the special voting procedure. 

According to the Court, the uncertainty surrounding the Minister’s motives raised serious doubts of irregular interference by the Minister in the judiciary and thus tainted the legitimacy of the whole procedure (§265). While the Minister was authorised to depart from the Evaluation Committee’s proposal, she had disregarded a fundamental procedural rule that obliged her to base her decision on sufficient investigation and assessment. This procedural rule was an important safeguard to prevent the Minister from acting out of political or other undue motives (§288). Besides, Parliament did not fulfil its duty as the guarantor of the lawfulness of the appointment procedure. As a result, there had been a grave breach of a fundamental rule of the procedure for appointing judges. 

Moreover, the Supreme Court of Iceland could not remedy the effects of the aforementioned irregularities on the applicant’s fair trial rights. Although there were legal guarantees in place to remedy the breach committed by the Minister, such as the procedure before Parliament and the judicial review by domestic courts, all those safeguards proved ineffective (§288).

The Grand Chamber noted that the irregularities in the appointment procedure were of such gravity that they undermined the very essence of the right to be tried before a tribunal established by the law. Having made that finding, the Court concluded that the remaining question as to whether the same irregularities had also compromised the independence and impartiality of the same tribunal did not require further examination (§295).

The Court emphasized that with the passage of time, the preservation of legal certainty will carry increasing weight in relation to the litigant’s right to a “tribunal established by law” in the balancing exercise that must be carried out (§252). Such approach has been criticized by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion, claiming that the manipulation of the appointment of a judge to a court in violation of the relevant eligibility criteria is an absolute procedural defect that cannot be remedied, neither by the passing of time nor by the acquiescence of the defendant. 

The Grand Chamber considered that a finding of a violation could be regarded as sufficient just satisfaction and did not award non-pecuniary damages to the applicant. Besides, the Court stressed that the finding of a violation in the present case may not as such be taken to impose on the respondent State an obligation to reopen all similar cases that have since become res judicata in accordance with Icelandic law (§314). 

Consequently, it is up to the state to take appropriate measures to solve existing problems and to prevent similar violations in the future. This approach of the Grand Chamber was criticized by Judge Pinto de Albuquerque in his partly concurring, partly dissenting opinion, suggesting that without clear instructions to the respondent State this judgment remains “a toothless, paper tiger”.

Therefore, despite its wider significance, this judgment did not provide tangible benefits to the applicant himself: neither the financial compensation nor reopening of the criminal proceedings was guaranteed by the Grand Chamber. The practical implication of the significant principles laid down in this judgment is dependent on the respondent State that is instructed “to draw the necessary conclusions from the present judgment”.

The Significance of the Grand Chamber Judgment beyond Iceland

The Grand Chamber’s judgment is significant in terms of clarifying the standards concerning the right to have one’s case heard by a tribunal established by law. It entails an important addition to the scope of this right and is expected to have important consequences: domestic courts are now under a Convention obligation to assess whether the judges have been appointed in conformity with the relevant legislative provisions.

The case of Guðmundur Andri Ástráðsson v. Iceland can have far-reaching implications beyond Iceland. As already pointed out, this judgment puts in question the Polish judicial reforms and whether decisions taken by Polish courts where judges were appointed by the new politically controlled National Council for the Judiciary can be regarded as decisions by a “tribunal established by law”.

Besides, this judgment might have a considerable impact on Georgia as well. In 2019, the selection procedure of the Supreme Court judges in Georgia was severely criticized. According to OSCE/ODIHR, the requirement for merit-based decision-making was seriously undermined by the use of secret votes throughout the process and the absence of a requirement for justification of the rankings and nominations.

As pointed out by the Grand Chamber in the case of Guðmundur Andri Ástráðsson v. Iceland, the absence of a manifest breach of the domestic rules on judicial appointments does not as such rule out the possibility of a violation of the right to a “tribunal established by law” (§ 245). There may be circumstances where a judicial appointment procedure that is seemingly in compliance with the relevant domestic rules nevertheless produces results that are incompatible with the object and purpose of the Convention right. The Grand Chamber emphasizes that it will defer to the national courts’ interpretation and application of domestic law – unless their findings are arbitrary or manifestly unreasonable.

As stressed by the Grand Chamber, it is inherent in the very notion of a “tribunal” that it is composed of judges selected based on merit – that is, judges who fulfill the requirements of technical competence and moral integrity to perform the judicial functions required of it in a state governed by the rule of law. It remains to be seen whether the appointments in the Georgian Supreme Court and several Polish courts will become the subject of the ECtHR consideration. The case of Guðmundur Andri Ástráðsson v. Iceland indicates the potential success of challenging these appointments in Strasbourg.

Right to erasure (right to be forgotten) under the GDPR – the danger of “rewriting history” or the individual’s chance to leave the past behind

Author: Ketevan Kukava

This post was originally published on the EU Law Analysis blog.

In the internet age, when a vast amount of information can be stored indefinitely and can be easily retrieved by means of a mouse click, controlling one’s personal data seems a particularly difficult task to do. Complete erasure of data from digital memory once it becomes publicly available is questionable from a technological and practical point of view. As a result, the burden of remembering past events and behavior after they have lost their relevance and permanent digital accessibility of information can have significant implications for individuals at the present time.

While the internet and digitization have brought about huge benefits in terms of access to a wide range of information, content creation, and public dissemination, its major downside is losing control on one’s personal data and the difficulties related to forgetting. In his book “Delete: The Virtue of Forgetting in the Digital Age” Viktor Mayer-Schoenberger points out:

“Since the beginning of time, for us humans, forgetting has been the norm and remembering the exception. Because of digital technology and global networks, however, this balance has shifted. Today, with the help of widespread technology, forgetting has become the exception, and remembering the default“.

The debate over achieving a balance between privacy and freedom of expression has reached its highest level in the internet age. Some argue that removing lawfully published information from search results might pose the risk of Orwell’s dystopian history-rewriting. However, on the other hand, an individual’s interest in controlling their personal data, leaving the past behind, and removing the past burden should not be underestimated. 

The General Data Protection Regulation (GDPR), which became applicable on 25 May 2018, tries to answer the challenges that emerged as a result of technological advancements in the digital age. Apart from ensuring uniform rules regarding personal data protection throughout the European Union (as the directive 95/46/EC by its nature left certain leeway to the states in terms of its implementation), the GDPR provides some additional guarantees, such as a clearer formulation of the right to erasure (Right to be forgotten) which is probably one of the most controversial and hotly debated issues within the scope of the GDPR. Right to erasure (Right to be forgotten) guarantees deletion of data when an individual no longer wants their data processed and there is no legitimate reason to keep it.

Although Directive 95/46/EC does not explicitly guarantee “the right to be forgotten”, in the widely known Google Spain judgment the Court interpreted legal provisions of the Directive in such a way that made it possible to satisfy the data subject’s complaint. In particular, the Court relied on the data subject’s right of access to data (the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive) as well as the data subject’s right to object, which obliged the operator of a search engine to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person.

Right to erasure (“right to be forgotten”) guaranteed by Article 17 of the GDPR empowers the data subject “to obtain from the controller the erasure of personal data concerning him or her without undue delay”, and obliges the controller “to erase personal data without undue delay”. This provision is applicable when certain grounds determined by the Regulation exist, including when the data subject withdraws consent on which the processing is based, and where there is no other legal ground for the processing.

One of the bases for erasing personal data is the data subject’s objection to the processing when there are no overriding legitimate grounds for the processing (Article 17(1)(c)). Notably, in such a case, the obligation of demonstrating compelling legitimate grounds is imposed upon the controller. While according to the Data Protection Directive, the data subject had to demonstrate “compelling legitimate grounds relating to his particular situation” and processing should no longer involve those data in case of a justified objection (Article 14(a)), according to the GDPR, “the controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights, and freedoms of the data subject or for the establishment, exercise or defence of legal claims” (Article 21(1)).

Article 17 of the GDPR imposes obligations upon the controller which according to the definition provided in Article 4 “alone or jointly with others, determines the purposes and means of the processing of personal data.” Further, apart from erasing personal data, additional duties are foreseen by the Regulation when the controller has made the personal data public: “The controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data” (Article 17(2)). Notably, the GDPR foresees certain exceptions from the above-mentioned provisions, including when processing is necessary for exercising the freedom of expression and information, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, etc. (Article 17(3)).

Despite the significance of the efforts aimed at ensuring the data subject’s control over their own personal data, the very nature of the internet and constantly developing technologies might still pose certain legal and practical challenges in achieving the aims of being forgotten. In Google Spain the Court itself stressed “the ease with which information published on a website can be replicated on other sites and the fact that the persons responsible for its publication are not always subject to European Union legislation” (paragraph 84). Indeed, once information is made publicly available, tracking personal data, controlling their further replication and their subsequent total erasure might seem practically impossible. Moreover, Google Spain is also a good illustration of the so-called “Streisand effect”, as the Spanish citizen who wanted to be forgotten ended up publicizing his personal information more widely.

Probably, the practical difficulty of total erasure is the major rationale behind the focus of the GDPR on taking reasonable steps and obliging the controller to communicate erasure of personal data “to each recipient to whom the personal data have been disclosed, unless this proves impossible or involves disproportionate effort” (Article 19).

One of the important issues related to the enforcement of the right to be forgotten is the territorial scope of the Regulation and its applicability to companies incorporated outside the EU. Similar to the Data Protection Directive, the GDPR applies to the processing of personal data in the context of the activities of an establishment of a controller in the Union. Furthermore, the Regulation explicitly stresses that this rule is applicable “regardless of whether the processing takes place in the Union or not” (Article 3(1)). According to Recital 22, establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in that respect.

Additionally, the GDPR determines that the processing of personal data of data subjects who are in the Union by a controller or a processor not established in the Union are subject to the GDPR where the processing activities are related to:

(a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or

(b) the monitoring of their behaviour as far as their behaviour takes place within the Union (Article 3(2)).

Therefore, companies based outside the EU are not released from data protection obligations imposed by the GDPR when offering goods or services, or monitoring behavior of data subjects within the EU, which ensures significant extraterritorial reach of the GDPR.

The broad territorial scope of the GDPR together with high administrative fines in case of infringements of the Regulation (Article 83) is viewed as a strict regime by privacy skeptics and has given rise to a debate. However, on the other hand, there is no doubt that the legal framework should be adjusted in order to answer modern-day privacy challenges. In parallel with technological developments, privacy concerns increase which necessitates the emergence of appropriate safeguards and legal regulation.

Proportionality remains the significant principle that is explicitly guaranteed by the GDPR. In particular, Recital 4 declares that “the right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality.” Furthermore, Article 85 of the GDPR refers to exemptions and derogations for the processing carried out “for journalistic purposes and the purposes of academic, artistic or literary expression” if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information.

When enforcing the right to be forgotten in the online world, important questions arise whether the information should be removed globally. Google Spain judgment and its legal implications are of particular significance in this regard. In response to the requests submitted regarding removing certain URLs, Google started to delist links from all European versions of Google Search (like google.de, google.fr, google.co.uk, etc) simultaneously. Moreover, Google also started to use geolocation signals (like IP addresses) to restrict access to the delisted URL on all Google Search domains, including google.com, when accessed from the country of the person requesting the removal. However, the French data protection authority required Google to apply the right to be forgotten to all searches on all Google domains. Following the reference by the French court, the Court of Justice has to decide on the question whether the ‘right to de-referencing’ be “interpreted as meaning that a search engine operator is required, when granting a request for de-referencing, to deploy the de-referencing to all of the domain names used by its search engine so that the links at issue no longer appear, irrespective of the place from where the search initiated on the basis of the requester’s name is conducted”. It should be noted that the global removal of information might produce negative consequences worldwide. As stressed by Google, “how long will it be until other countries - perhaps less open and democratic - start demanding that their laws regulating information likewise have global reach?”

Guaranteeing the right to erasure under the GDPR cannot be considered as a silver bullet answer to the risks and challenges of the internet age, however, the value of the overall aim of the regulation – increased control of individuals of their personal data - should not be underestimated. Can we have a realistic expectation of privacy online and how much valuable information might be lost in translating legal requirements into practice? – Probably these questions gain more and more relevance and necessitate taking due account of the very nature and the challenges of the internet age.