Hinn 30. desember sl. fékk ég í hendur greinargerð Guðmundar Ástráðssonar í máli hans gegn íslenska ríkinu sem nú er rekið fyrir MDE í Strassborg vegna dóms Hæstaréttar nr. 10/2018 þar sem hafnað var þeirri kröfu og málflutningi Guðmundar að hann hefði ekki fengið réttláta málsmeðferð fyrir dómi hér á landi þar sem dómarinn í málinu væri að hans mati ekki löglega skipaður. Í greinargerðinni, sem lögmaður hans Vilhjálmur H. Vilhjálmsson ritar undir, eru settar fram fullyrðingar um dómaraskipunina í Landsrétt árið 2017 sem enga stoð eiga í raunveruleikanum. Þá er dylgjað um afstöðu mína til málsins og í engu slegið af í gífuryrðum og ásökunum um háttsemi sem telst saknæm hér á landi og öðrum réttarríkjum. Verst þótti mér að sjá nafngreinda einstaklinga dregna inn í dómsmál sem þeir hafa með engu móti haft aðkomu að og jafnvel leitast við með lítillækkandi aðdróttunum að draga úr trúverðugleika farsæls starfsferils þeirra til áratuga.
Ég er ekki aðili að þessum málarekstri í Strassborg. Hinn 6. janúar sl. sendi ég hins vegar forseta MDE greinargerð sem ég óskaði eftir að yrði hluti málsskjala í þessu máli. Í greinargerðinni leitast ég við að svara þeim ásökunum sem á mig eru bornar í greinargerð sóknaraðila. Fyrir helgi, sama dag og Morgunblaðið fjallaði um málið, fékk ég svar frá skrifstofu réttarins um að erindi mínu væri hafnað á grundvelli tímafrests. Þó heimila reglur dómstólsins forseta að samþykkja við sérstakar aðstæður aðkomu þriðja aðila eftir tímafrest.
Greinargerð mína má finna hér á PDF formi en texti hennar fylgir einnig hér að neðan.
Mr. President Linos-Alexandre Sicilianos
European Court of Human Rights
Reykjavík, 6 January 2020.
Submission to the Grand Chamber
Subject: The case of Gudmundur Andri Ástrádsson v. Iceland, no. 26374/18 – Grand Chamber.
- With reference to Article 36 of the European Convention on Human Rights, as per Rule 44, 3, of the Rules of Court, I hereby wish to submit the following observations to the above-mentioned case and, to the extent necessary, be granted permission to intervene in the proceedings. I appreciate that I am making this application at a late stage, but there are exceptional circumstances: I only received the Applicant’s written submissions on 30 December 2019 and read then the serious allegations against me personally that are made in those submissions. In light of the Applicant’s written submissions, I cannot but request that the following submissions be admitted in the relevant case before the Grand Chamber, as per Rule 44, 4 (b).
- Regarding the legal arguments and causes of action of the Icelandic state in this case as regards the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) and the European Court of Human Rights’ (ECHR/Court) case law, I refer to the statement of case of the Icelandic state, its Submissions, which I support. However, there are two things that I cannot avoid bringing to the attention of the Court, see §§ 3-4 below. One of them concerns Article 10 of the Administrative Procedure Act (APA) which this case is involved with and in my opinion requires further legal discussion and actually on a deeper level than is possible in legal proceedings such as these. The other item is of the same ilk but refers to Supreme Court judgments (no. 591 and 592/2017 of 19 December 2017), which the Applicant was not a party to but which the Majority Chamber Judgment was completely based on. In named Supreme Court cases it was found that I had not fulfilled the requirements of Article 10 of APA by not having investigated the case sufficiently.
- I believe that it is necessary to reiterate what it says in the Submission of the Icelandic State in §§ 105-107 on Article 10 of the APA according to which an authority shall ensure that a case is sufficiently Article 10 of the APA is thus an evaluative rule and does not provide any clear guidance on when a case has been sufficiently investigated. Before I submitted my proposal to the Icelandic parliament, the Althing, about fifteen individuals who were to be appointed to the recently established Court of Appeal, I investigated the question thoroughly. This included both the work and documents of the evaluation committee on which I based my own investigation. The committee had identified the group of all thirty-three applicants as amply qualified and eligible for appointment. It had then come to the conclusion that only fifteen of them were the most eligible. I simply came to the conclusion that the committee had not had any premises to infer from their own investigation what it did, i.e. that only fifteen individuals were the most eligible for fifteen advertised positions for judges at the Court of Appeal. I argued my conclusion and referred inter alia to a long and successful career within the judiciary of nine applicants in addition. I thus considered that nine applicants in addition were also among those most eligible for the position of judges at the new court in a comparable way. Accordingly, appointments to the court had to take into account many factors, for example regarding the fact that appointments were being made to a court of appeal. In that case, a successful career as judge must carry a lot of weight. Also, the identity of the court had to be taken into account being the foundation on which people’s trust had to be based. Considerations regarding equal rights also have an effect on this. People may have disagreed with me about this conclusion, but this has, however, never appeared. And it certainly does not change the fact that an investigation was made of the case in complete good faith and it was sufficient in my opinion. A Minister has nothing to support him apart from the works of the evaluation committee, which according to law operates on behalf of the Minister; the working documents of the committee, legal expertise within and outside of the ministry, his own common sense and in my case, decades of expert knowledge both from work as an attorney and also from administration as the Applicant rightfully points out in his Submissions, § 36. It is necessary to emphasise that it has never been mentioned in the Supreme Court nor has anybody put this forward in a scholarly discussion on the case of the four applicants who I proposed to Althing, and who the evaluation committee had not classified among the most qualified, that they were not equally qualified for the post of a judge of the Court of Appeal as those whom the evaluation committee had assessed as the most qualified. In the statement of case by the Icelandic State §§ 105-107 it is correctly discussed what requirements may be made for an investigation in order that it will be considered sufficient. Icelandic procedural law is based on the premise that the legislator determines the law and not the courts. Therefore, it is inconvenient that the provision of article 10 on Administrative procedures is not clearer on this matter than it turns out. The legal provision of a sufficient investigation is not sufficiently clear, and this is the responsibility of the legislator.
- In the Majority Chamber Judgment, the Supreme Court case no. 10/2018 is criticised by means of “test of a flagrant breach of domestic law”, applied by the Court in an unprecedented manner. However, no attempt is made to examine the premises of the judgments to which the court case no. 10/2018 refers. This is, with respect, a fault with the Majority Chamber Judgment. The Supreme Court cases in question are no. 591 and 592/2017 of 19 December 2017 in which it is concluded that my procedure in the case had not fulfilled the requirements of the evaluative Article 10 of APA. The recital of the judgments discusses my argumentation which I submitted to Althing. That argumentation is in line with the main premises of Icelandic administrative law about the contents of an argument, including the principle of a subsequent but not concurrent argumentation and the important principle that an argumentation must concern why the person concerned had been appointed but did not concern why someone else was not. The recital of the Supreme Court discusses this but in such a manner that the emphasis is on a lack of documentation in support of my argumentation. Yet, no guidance can be found in the Supreme Court ruling on what documents should have been revealed and investigated. Thus, it is apparent that the two judgments concerning above all the lack of argumentation in my case rather than an insufficient investigation of the case had been made. In other words, the premises for the Supreme Court judgments in cases no. 591 and 592/2017 do not appear to agree with its own findings and reference to Article 10 of APA. I mention this because the Majority Chamber Judgment seems to be based completely and without criticism of these Supreme Court judgments from 2017 but seems to disregard the judgment of the Supreme Court which alone is the subject of this case, i.e. Supreme Court judgment no. 10/2018. I refer to the statement of case of the Icelandic State regarding this. That 2018 judgment should, I believe, be dispositive of this case against the Applicant. As that judgment records even the Applicant did not contend that AE was ineligible or unqualified or that she acted in any inappropriate manner in his case or any previous cases to come before her or that she could not have been appointed as a judge if the fullest compliance with all procedural requirements had occurred (see page 2 summary of Applicant’s submissions). Furthermore, the Supreme Court held in terms that a mere procedural deficiency in the appointment process could not suffice to cast justifiable doubt on the impartiality of AE in all the circumstances of the case. That conclusion is unassailable.
- The reason for my filing this statement in this case now is however in particular due to the Applicant’s crass accusations made against me personally and concern what is repeatedly called “political corruption“, that I had “violated the law with intent” had ”improper motives such as party interests, personal interests…“ and engaged in ”political horse trading“ to name a few examples of some of the wilder allegations in the Applicant’s submissions §§ 14, 15, 46, 56, 67. The Applicant does not find it sufficient to limit himself to the legal arguments of this case and as they were presented and debated in Icelandic courts. In Supreme Court judgment no. 10/2018 it was found that the Applicant had received just treatment of his case in the criminal proceedings where – it should be emphasised – he pleaded guilty at first instance and the appeal from which he sought AE’s recusal concerned only an issue of sentencing. The representation of the Applicant in the Chamber and now before the Grand Chamber is above all an attempt at creating an atmosphere of corruption in Iceland and accusations against me for criminal acts. I cannot but protest this even though I am put in the ridiculous position to be forced to defend myself against accusations of friendship with people who have not done anything except apply for a job, or be married to an applicant for a job. Actually, these unsubstantial accusations are not only limited to me in the Applicant’s Submissions but concern also a large number of people, former politicians, civil servants, present and former Supreme Court judges and even the current President of Iceland. All of them are scrupulously honest people who have not been in any way involved in the aforementioned court cases in Iceland. They are not given any chance to defend themselves in this politically framed litigation of the Applicant.
- In the Applicant’s statement of case I am accused of performing my job with a view to my connections, even mental associations, with named individuals. These are connections which the Applicant imagines are in place. I have never been friends with any of the 33 applicants for a position of judge in the court of appeal and neither personally nor through their spouses. In a country like Iceland with such a small population, of only 350.000, it would of course not be strange that the situation would arise that the Minister was friends with some of the applicants in such a large group of people. When in addition, this is a group of lawyers, and the Minister herself is a lawyer of the same age as most of the applicants then it was the special concern of mine as Minister to take special care regarding the rules of qualification. Even though I was loosely acquainted with several applicants, or it would be more appropriate to use the old term „tilting hats” to them, they were outnumbered by those who I personally knew nothing about and most of them I did not even know by sight. The Applicant deals with six of the applicants in particular § 14 in an exceedingly tasteless manner and considers in this connection but this is proof of “political corruption“. It is, I regret to say, groundless nonsense that the spouse of appointed judge Jón Finnbjörnsson is a “friend” of mine. Admittedly, his wife worked in the same legal office, the second largest legal office in Iceland, as I for a number of years. I have never got to know her or her husband, whom I may have met a few times in my life in a crowd, which would not constitute friendship. I got acquainted with appointed judge Arnfrídur Einarsdóttur (AE) when we sat together on the judicial board for several years. AE has had a successful career in the courts for dozens of years, on her own merits. She has not climbed on the back of her husband to reach the high position which she has achieved. The Applicant’s assertion is such absurd rudeness and might be the remains of the patriarchy which people in the western hemisphere are trying to eliminate. It may be noted that her husband BN was first elected to Althing in 2013. To my knowledge he had not been active in the Independence Party before and had never held an office as a civil servant. Appointed judge Ásmundur Helgason was a contemporary of mine in law school. I’ve never met him since then and would not recognise him nor Ragnheidur Bragadóttir if I met them in the street. The Applicant seems to be very well informed about the political affiliations of the applicants. I certainly am not. Because of my lifelong participation in the operations of my political party I can still assert that the four candidates to whom the Applicant accuses me of giving preferential treatment have never been connected with the Independence Party to my knowledge. However, it should be noted that the party members number many thousands and I can honestly say that do not know them all personally.
- The most serious accusation of the Applicant against me concerns my work as a Minister and the parliamentary career of AE’s husband, BN. The speculations of the Applicant about the internal affairs of the Independent Party are of no concern in this case. The chairman of my party and the parliamentary group entrusted me with a ministerial post in January 2017 and this was even though I had been ranked lower on the list of candidates of the party than BN who was not appointed Minister. The same also applied to more ministers of the Independence party in the government, i.e. they were entrusted with ministerial posts although not prime candidates in their constituencies. At this time, the vice-chairperson of the party, Mrs Ólöf Nordal was the prime candidate in the constituency of BN and mine and Minister of Interior. She was seriously ill and declined a continuing position as minister in the new government. She passed away shortly after the formation of the new government. No doubt there have been many reasons for my appointment as Minister. In my party nobody has a claim on a ministerial post. At the time when I proposed AE to Parliament in May 2017, my personal standing as Minister was not under discussion in any venue, though this is implied by the Applicant, § 46. As everybody in Iceland was aware of at that time it was expected that next elections to parliament would be in 2020. It might be assumed that the list of candidates would then have been ranked according to the findings of a primary election in which thousands of party members have the right to vote. This is the usual proceeding within the party in Reykjavik. It turned out however, that the elections were held in October 2017. The primary elections were not held because the elections were called at very short notice, only a year from the last elections. In that year that has passed, it turned out that I was appointed minister but BN was not. That was a fact that BN faced when he considered his position on the party ticket. Reykjavík, Iceland’s capital, is divided into two constituencies. It has also been the intent and policy of the party’s leadership for years that the leading candidates in the constituencies reflected the views of the party on gender equality. This was also a factor that BN considered. I then became the lead candidate replacing the then deceased Mrs. Nordal who had held that position in the previous elections. A ministerial post in a new government is neither based on being a leading candidate in the constituency nor the standing of BN. The Applicant’s insinuation of criminal behaviour by me does not measure up, neither with regard to time nor occasion and is disgraceful for the Applicant. This insinuation shows conclusively that these proceedings have political, and not legal origins.
- I would also like to address the basic principle which must be adhered to in the appointment of civil servants, not least judges. I.e. that the evaluation of qualifications of applicants is not a mechanical process. When many judges are going to be appointed to a new court out of a number of applicants it is of immense importance to make a comprehensive evaluation of which of them are qualified to take on a position at the court with distinction. This is the role of the evaluation committee. The procedure used by the committee in the Court of Appeal case is hardly beyond criticism. The method used by the committee was to award marks to the applicants on the scale of 1 to 10 for different aspects of skills and experience. The judicial experience was valued only at 19% of total skills in question. Then they used Excel spreadsheet to calculate the average with up to three decimal points and thus arrange the applicants according to this. Then they concluded that the top 15 in this calculation were the best qualified ones, and all with the same qualifications, even though the difference was no more than 0.03 between the applicant no. 15 and no. 16 according to the Excel spreadsheet. The committee failed to give weight to decades of successful career of permanent judges who were among the applicants but who the marking did not allow for the fact that they had dedicated their working life to the bench. Younger applicants with a more varied career received a better result in the calculations. This procedure has been criticised for years by the Ombudsman of Althing. The chairman of the Judges Association had this to say about the case: “We made comments on the conclusion of the qualification committee when it became public and considered that it was fraught with serious faults, in particular with regard to the fact that judges consider that their work experience and how it will be useful in the work of the new court was completely disregarded.”
- In an interview with members of the evaluation committee on 19 June 2019 one of them says he „had been completely startled“ at seeing the results from the spreadsheet. However, according to this committee member this conclusion was allowed to remain because the committee had decided beforehand to have an algorithm select only fifteen candidates after an otherwise excellent investigation of the qualification of all applicants. Unfortunately, this information was not available in the liability cases which have been conducted before Icelandic courts but does really and truly have great importance in this litigation with regard to the great emphasis which the Majority Chamber Judgment puts on Supreme Court judgments no. 591 and 592/2017.
- Then it was reported in the news but on another member of the committee has described it as a “favour to the Minister that the committee only proposed fifteen applicants as the most qualified for the positions on the court. Then the Minister would not have to put herself at a political risk by selecting the applicants.” One can hardly think of more unfair conclusion about the qualifications of applicants and I am proud of not having become involved in such base behaviour against the applicants for the positions as judges.
- And now it has turned out that the evaluation committee has completely reversed course in its methods and position towards the evaluation of qualifications. In its recent conclusion of 9 December 2019 regarding applicants for one position at the Supreme Court of Iceland which was advertised in early autumn, the committee concluded that three applicants were rated higher than all other applicants. There were eight applicants in all. Four of those were among the applicants to the Court of Appeal and were therefore on the already mentioned Excel spreadsheet. In 2017 the committee found that those four among other eleven applicants were equally qualified for appointment. In its recent conclusion the committee does not consider it possible to make a choice among three of those and comments „but according to the nature of the case a comparison of their qualifications is very complicated“. Therefore, the committee does not find it reasonable to make a distinction between them. In support of this finding of the committee it is noted that the three persons involved have in common “to have made a long and successful career and are held in high regard in jobs which require extensive knowledge of the law in its many branches; all three to such an extent that no difference can be discerned between them.” This is very close to the wording of my argumentation in my proposal to Althing in the Court of Appeal case, when I submitted a proposal for four judges to the Court of Appeal with greater experience as judges than other four which the computer programme of the committee had ranked among the fifteen of the most qualified. It is noticeable that in this new finding it is mentioned four times that it was not appropriate to distinguish between the qualifications of these three applicants for the office of a Supreme Court judge. This recent conclusion of the committee underlines quite clearly that it was reasonable for me to propose the candidates that I did, rather than necessarily adopting the proposals put forward by the committee. The current Minister of Justice has now appointed as a judge to the Supreme Court the applicant who received a mark which was 1.05 lower than received by Davíd Thór Björgvinsson, vice president of the Court of Appeal, and former judge at the ECHR, who also applied for a position as a Supreme Court judge. The difference in the marks of the recently appointed Supreme Court judge and the oft-mentioned AE in this case was even less. When the committee itself says now that those who differed by 1.05 before and according to everything should show a greater difference now with regard to the fact that one of them has now acquired experience as a judge in Iceland which he didn’t have before, it becomes obvious how ridiculous the idea is that the group of 15 is obviously better qualified than the others to such an extent that the court cannot be regarded as established by law when one goes outside the list of 15 applicants on the basis of an investigation but not a sufficient It should also be considered that it would require even more investigation than I attempted in order that the court was “established by law”. When the applicants in 2017 were divided into two groups, on the one hand the 15 most qualified and then all the others, there was only a difference of 0.03 between the 15th who, according to the pleadings of the Applicant in this case, should be appointed and the applicant number 16. When considering this but according to the committee now, a difference of 1.05 is of no importance, it can be seen how farfetched the case of the Applicant turns out to be.
- This case is about A.E. who is completely qualified to sit on the Court of Appeal. She has had a long and successful career as a judge on which no blemish can be found. It is completely ridiculous to argue that her sitting on the court makes it impossible for the Applicant to have his case submitted to a court which was established by law and for him to enjoy human rights according to article 6 § 1 of the Convention. The Supreme Court itself has concluded that this has not constituted any infringement against the human rights of the Applicant. It’s absurd to require that the Court constitute that the position of the Supreme Court of Iceland is flagrantly wrong.
- The four individuals proposed to Althing, and who were not among most eligible according to the committee, have together up to 70 years’ experience of judicial work. The evaluation committee does not diminish this experience and it gave these four applicants the mark 7.5 out of 10 on average for judicial experience whilst the other four applicants received 2.7 on average on the so-called evaluation score board. The Applicant maintains that my proposal is based on political interests, both my own and those of my political party. Yet, he does not give a single example of a judgment which these people have pronounced in their long career which are based on such interests. The whole pleadings of the Applicant are unfounded and have the sole purpose to make it appear that in Iceland is inundated in the atmosphere of corruption, opacity and anti-democracy. The Applicant does this obviously because he knows that the real circumstances do not involve an infringement of Article 6 of the Convention on Human Rights. Iceland is among the oldest democratic countries in the world, a founder state of NATO and which has seen the highest election participation of any democracy. The atmosphere the Applicant attempts to create in these proceedings has no support in reality.
- It is also far from the reality that a political animosity has any bearings in this case. I refer to the Majority Chamber Judgment § 51. From the wording of the paragraph it could be deducted that the motion of no-confidence was put forward in light of my performance and that it was supported by the opposition in its entirety. The fact of the matter is however that MP Sigmundur David Gunnlaugsson, Chairman of the opposition Center-Party (the leading opposition party) declared his vote as following: “I will not support the arguments of the presenter of the proposal but I do distrust the Government. On that ground, and on that ground alone, I do support the motion of no-confidence on its Minister and therefore on the Government as a whole, its origins, methods of work and policy.” After the Majority Judgment on 12 March 2019 MP Olason of same opposition party said in his parliamentary speech, “Hon. Speaker. Mr. Ogmundur Jonasson, former Minister of Interior of Left-Green party has thoroughly investigated the Majority Judgment which is being discussed here. He has publicly said that the conclusion of human rights violations is fictional. The more Mr. Jonasson reads into the Majority Judgment the stranger it appears. I can relate to this. It is absurd that human rights have been violated in the case that was at hand in Strasbourg.” I cite those members of opposition to shed light on the fact that the opposition’s stance in this matter is not what it is presented to be in the Majority Judgment in the case.
- In light of the great emphasis the Applicant puts on personal relations, although addressed before, it is an important fact that Iceland is a small country of population of only around 350,000 people. In debate on associations and interrelation among the people of Iceland this fact must be reckoned with. For instance, it has not been of any relevance neither within the Supreme Court nor on part of the State as a party to the court cases no. 591 and 592/2017 of 19 December 2017 that well know relations were and are in place between some of the ad-hoc judges that ruled in these cases and some committee members and applicants.
- Finally, I would like to stress that in cases like the one now before the Grand Chamber, the principle of subsidiarity is of utter importance. The appointment of judges, let alone a big group of judges of a new court, is always bound to be scrutinized one way or the other. For a long time, an ideological disagreement has existed on the arrangement of appointments to courts, not only in Iceland but all over the world. The debate on the issue has to be regarded in light of this disagreement and in light of the development that the rules have undergone for past decades. In a democratic society the powers of both the judiciary as well as the legislature derive from the people. Ministers and the administration of which they are responsible hold their powers according to the legislature, from the people. The judiciary too is “established by law” and is regulated by law emanating from Parliament. The appointments of fifteen judges of the new appeal court was not made upon my discretion. I merely put my fifteen proposals before the parliament. The parliament of Iceland voted for my proposals, fifteen separate proposals, although the voting was consolidated in one vote according to standard procedures of Althing. This was after debate both in the House and in the relevant standing committee, all according to laws and Standing Orders of Althing. The parliamentary process was in no way in my hands as Minister. The proposals were passed by a majority vote. That is democracy in action. It then was signed officially by the President of Iceland. All three branches of the state have therefore been involved in the appointment of the fifteen judges of the new Appeal Court. The legislature, the President with the executive branch and the Supreme Court of Iceland that has ruled that judge AE was duly appointed and sits on the bench with the due powers vested in her. Never before have judges enjoyed such support from all three branches of the state. As a democratically elected Member of Parliament and the Chairman of the Foreign Affairs Committee I must object wholeheartedly to the Majority Chamber Judgment of the Court as it overlooks this imperative factor of the rule of law of the Contracting Party, Iceland. It truly did sadden me to see the ECHR being dragged into a political scenario within a Contracting Party and deciding to follow suit with its majority Chamber’s judgment in which a so called test of a “flagrant breach of domestic law” is applied in a context that was not the one for originally introducing such a test.
- I agree with the joint dissenting opinion in which the case before the ECHR is rightly summed up, i.e. as a case not about the independence of the judiciary as such. It is solely about whether there has been violation of Article 6 § 1 of the Convention. I agree with the Separate Opinion’s conclusion on that and, in particular, the emphasis on the rule of subsidiarity. The Majority judgment is truly an “overkill”.
- I would be happy to address the Grand Chamber and answer questions and if needed present documents of relevance.
Sigríður Á. AndersenTweet