Rule of law European Union

From Iceland to Poland: Why the European Court of Human Rights’ latest decision matters to the EU

On 1 December, the European Court of Human Rights (ECtHR) handed down a decision against Iceland that has a direct effect on the rule of law and the independence of the judiciary in the EU. Iceland was found to have violated the European Convention on Human Rights (ECHR) by unlawfully appointing judges to its High Court of Appeals. All EU member states have ratified the ECHR.

DRI’s Jakub Jaraczewski examines the ramifications of the Guðmundur Andri Ástráðsson v Iceland decision.

1. Why does a judgment on Iceland matter to the EU?

While this decision concerns Iceland – a country outside the European Union – it will directly affect the rule of law inside the EU for two reasons:

  • It dealt with judicial appointments, a major issue in several EU member states;
  • It sets the stage for other cases coming up in the ECtHR, namely from Poland, where the status of judges and the process of their appointments is in question, too. The ECtHR is expected to use toward Poland the same reasoning as in the Icelandic case.

The ECtHR, based in Strasbourg, is part of the Council of Europe human rights system and hears cases concerning violations of the ECHR. This is different from the European Court of Justice based in Luxembourg, which is the top court of the European Union and handles cases related to EU law.

2. What is the judgment about and why is it significant?

The judgment concerns the process for how judges are appointed to the Landsréttur, Iceland’s High Court of Appeals. That court had upheld a verdict against the applicant, who was convicted for driving under the influence of alcohol without a valid license. Following the judgment of the Landsréttur, the applicant went to the European Court of Human Rights, claiming that the Landsréttur judges who presided over his case were appointed in an unlawful manner. The ECtHR agreed with this interpretation and found that the irregularities in the appointments violated Iceland’s domestic law on judicial appointments, as well as amounting to a violation of Article 6 of the ECHR, which enshrines the right to a fair trial.In its reasoning, the court applied a three-step test to determine whether a violation of the ECHR occurred, checking if:

  1. There was a manifest breach of domestic law on appointing judges,
  2. The breach concerned a law of fundamental importance for appointing judges,
  3. The breach had been effectively reviewed and remedied by domestic courts or tribunals.

The test is meant to eliminate cases where the domestic law was not violated, where violations were trivial or where the domestic remedies addressed the problem sufficiently. This test is particularly significant since the court is likely to use it in future cases regarding judicial appointments in any of the signatory states.

However, the test does not examine the overall state of the judiciary and its independence – a shortcoming that leaves a blind spot in the court’s reasoning, as some rule of law concerns in EU member states regard situations where the domestic procedures are duly respected, yet the independence of judges is still threatened.

3. How will the decision apply to EU countries and will it have a specific effect on Poland and Hungary?

Some of the concerns on the state of the judiciary in EU member states, particularly Hungary and Poland, deal with how judges are appointed. The European Court of Human Rights had addressed Article 6 concerns regarding judges as early as in 2016, in the case Baka v Hungary concerning a judge on the Hungarian Supreme Court. The ECtHR is expected to soon decide on several cases concerning Hungary and Poland, in which the Iceland case and its test for assessing judicial appointments may apply.

4. What are the consequences of this decision for Iceland?

In most ECtHR judgments, the country found to have violated human rights is ordered to pay monetary compensation to the applicant. This is not the case with this judgment, as the court established that the finding of a violation itself was just and fair compensation to the applicant. Iceland is expected to implement the judgment and adjust its approach to judicial appointments.

5. How are the ECtHR judgments handled in Europe?

Countries that fall under the jurisdiction of the ECtHR must change their laws and policies to permanently remove the human rights violations found by the Court. However, 43% of ECtHR judgments on leading cases - those which reveal a new structural or systemic problem - across Europe remain unimplemented according to the European Implementation Network. This number is higher in certain countries. In Hungary for example, 75% of leading ECtHR decisions have not been implemented. In Italy, that number is at 57%.

Germany, which will chair the Council of Europe until May 2021, has pledged to focus on the implementation of ECtHR judgments as one of its priorities.

6. Are there other important rule of law cases pending at the ECtHR?

The Strasbourg court has several pending cases concerning the rule of law on its agenda. The cases include Broda v Poland and Bojara v Poland, which concern Polish judges who were removed from their positions as vice-presidents of the Regional Court in Katowice and Xero Flor sp. z o.o. v Poland, concerning the legality of the appointment of Polish Constitutional Tribunal judges.

The latter case, in particular, is expected to see the Strasbourg court apply the Iceland test, as the applicant claims that the judges presiding over the case were appointed in a way that violated Polish law and thus the European Convention on Human Rights as well. The Iceland case may have opened the door to stronger pushback by the Strasbourg court against the dismantling of judiciary independence.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.Photo credit: Government of Iceland