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Judiciary 10 February 2011

Judiciary 10 February 2011. Independence of the judiciary. Arts. 59, 61 and 70 of the Constitution and art. 6 of the ECHR (Act 62/1994). Other international obligations ( inter alia art. 14 of the ICCPR). Independence guaranteed in Act No. 15/1998. Overview: Appointment of judges

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Judiciary 10 February 2011

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  1. Judiciary10 February 2011

  2. Independence of the judiciary • Arts. 59, 61 and 70 of the Constitution and art. 6 of the ECHR (Act 62/1994). • Other international obligations (inter alia art. 14 of the ICCPR). • Independence guaranteed in Act No. 15/1998. • Overview: • Appointment of judges • Complaint procedure • Dismissal • Role of the judicial council

  3. Independence of the judiciary • Art. 61 of the Constitution No. 33/1944 • 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 re-organization of the judiciary. However, a judge who has reached the age of 65 may be released from office, but Judges of the Supreme Court shall not lose any of their salary.

  4. Independence of the judiciary • Art. 70 of the Constitution No. 33/1944 • Everyone shall, for the determination of his rights and obligations or in the event of a criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law. A hearing by a court of law shall take place in public, except if 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.

  5. Independence of the judiciary • Provisions on independence in other legislation: • Art. 24 of Act No. 15/1998. The 1st para. reads: • Judges shall discharge their judicial functions independently and on their own responsibility. They shall, in resolving a case, proceed solely according to law, and shall never be subject to the authority of any other person. A judicial resolution can not be revised, except by appeal to a higher court. • CCP No. 88/2008 guarantees the independence of prosecutors.

  6. Independence of the judiciary: Appointment of judges • Appointment of district court judges • Criteria set out in Act no. 15/1998 (art. 12). • Appointed by the minister of justice (now minister of the interior) (art. 12). • Qualifications evaluated by a committee of five (art. 4a). • Derogation by recourse to Althingi – see next slide. • Appointment of Supreme Court judges • Criteria set out in Act no. 15/1998 (art. 4). • Appointed by the president at the recommendation of the minister of the interior (art. 4). • Qualifications evaluated by the committee of five, which is required to rank the applicants (art. 4a) • Derogation by recourse to Althingi.

  7. Appointment of judges: Committee examines qualifications • Rules on the appointment of judges • Rules No. 620/2010 on the work of the committee examining the qualifications of applicants for judicial office, Art. 4 sets out the rules forming the basis of the committee’s opinion • “[...] The conclusion shall be founded on a comprehensive assessment based on objective viewpoints, taking into account the merits of applicants, including education and experience, integrity, competence and job efficiency. [...]” • The committee can take into consideration all published work of an applicant, even if they did not supplement the application • Interviews can be conducted and the committee is allowed to seek references from former employers • The applicant has 7 days to comment on information received from a former employer.

  8. Appointment of judges, art. 4a of Act No. 15/1998 (as amended in 2010) • Act No. 15/1998, Art. 4a, para. 3 • 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 adopts a motion of the Minister of Justice to appoint another identified applicant 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 that Althingi is next convened following submission of the opinion; the motion must be approved within one month from the time that it is placed before Althingi or the Minister will be bound by the opinion of the evaluation committee.

  9. Appointment of judges, art. 4a, cont. • Section 4 a of the Act on the Judiciary entails that • No applicant may be appointed which the committee has not designated as the most qualified, whether alone or equally ranked with others • Derogation is permitted if Althingi adopts a motion of the Minister of the Interior to appoint another applicant who, in the opinion of the evaluation committee, meets all the requirements for the office. • The motion shall be placed before Althingi within two weeks from the time of the submission of the committee’s opinion or within two weeks from the time that Althingi next convened following the submission of the opinion. • The motion must be approved within one month from the time that it is placed before Althingi or the Minister will be bound by the opinion of the committee.

  10. Appointment of judges, cont. • There is no official assessment as to the perfomance of judges, nor an official career system in place. • Judges are appointed for life but must (like other public employees) retire at age 70. • Decisions regarding transfer of judges are made by the judicial council and the procedure is set out in Act No. 15/1998. • Complaints regarding the performance of judges are handled by the Committee on Judicial Function, according to Act No. 15/1998 (arts. 23 and 27). The Committee can inter alia take up cases on its own initiative.

  11. Independence of the judiciary: Dismissals • Judges can be permanently removed from office only by a judgment. • Judges can be temporarily removed from office if they • Cease having the general qualifications required for judicial office. • Are under criminal investigation or a criminal action is brought, in which the charges (if sustained) would deprive them of the general qualifications. • Have been admonished (by the Committee on Judicial Functions) twice in three years or they have not heeded the admonition. • In all cases of temporary removal, the Committee on Judicial Functions must be consulted in writing. Legal action must then be brought against the judge within 2 months.

  12. Independence of the judiciary: The Judicial Council • Composition (Art. 13 of Act No. 15/1998): • five members appointed by the Minister of Justice. • Two are elected by district court judges from among their group, • two by the chief judges of the district courts from among their group, and • the Minister appoints one member, who is not an active judge, without a nomination. • Five alternates, appointed by same procedure. • All members are appointed for five years; the term of one member expires each year. • No more than two terms.

  13. The Judicial Council, cont. • 2. Main functions (see Art. 14 of Act No. 15/1998): • to control the financial affairs of the district courts, • to issue rules on co-ordinated judicial practice • to determine the number of judges and staff members at each district court, • to collect information on the number of cases in the district courts, and the conclusions of cases, and to efficiency and expediency in the handling of cases in the district courts • to represent the district courts collectively to executive authorities and others and • to organise continuing education for district court judges and other lawyers in service of the district courts. • To make proposals on matters conducive to improving the district courts’ function, or amending legislation applicable to them.

  14. Impartiality • Art.2, 59. and 61 of the Constitution, as well as Art. 24 of Act No. 15/1998. • Rules to prevent conflict of interest, in the Acts on Criminal and Civil Procedure, respectively. Also in Act. No. 15/1998. • No allegations of corruption have been made.

  15. Professionalism, competence, efficiency • Extensive requirements to become a judge, but no formal training. • Have to be lawyers. Legal education. • Seminars for continuing education of judges. • No official specialisation. • Average duration of cases(days): 2006 2007 2008 • Civil cases 300 282 262 Criminal cases: 65 71 54

  16. Professionalism, competence, efficiency, cont.

  17. Professionalism, competence, efficiency, cont.

  18. Professionalism, competence, efficiency, cont. • [ 

  19. The Judiciary • Supreme Court, District Courts, Labour Court and Impeachment Court. • Judicial review of legislation’s constitutionality. • A principle of constitutional status. • Judicial review of administrative actions. • Based on Art. 60 of the constitution.

  20. The Judiciary: The Labour Court • Legal basis: Chapter IV of Act No. 80/1938 on Trade Unions and Industrial Disputes and Act No. 94/1986 on Collective Agreements of Civil Servants. • Composition: • The parts appoint one judge each, • the Supreme Court appoints two and • the minister of welfare appoints the fifth, from a group of three chosen by the Supreme Court. • Only the two judges appointed by the Supreme Court have to be lawyers.

  21. The Judiciary: The Labour Court • The Court’s competence is set out in art. 44 of Act No. 80/1938 on Trade Unions and Industrial Disputes. • The function of the Labour Court is as follows: • To pass judgments in cases arising on account of charges concerning violation of the present Act and loss sustained due to unlawful stoppage of work. • To pass judgments in cases arising on account of charges concerning violations of a work agreement or due to disagreement relating to the interpretation of a work agreement or its validity. • To pass judgments in other cases between workers and employers which the parties concerned has agreed to refer to the Court , provided that at the least three of the judges be agreed upon such a procedure. • Certain similarities to a court of arbitration.

  22. The Judiciary: The Labour Court, cont. • 5. Number of cases decided by the Labour Court: • 2006     5 • 2007     6 • 2008     1 • 2009     6 • 2010    10

  23. The Judiciary: The Labour Court, cont. • 6. Appeals: According to art. 67 of Act No. 80/1938 on trade unions and labour disputes, the judgments and decisions of the Labour Court are final and no appeals are permitted. However, the following decisions and judgment are subject to appeal: • A judgment or ruling of dismissal • A judgment of invalidation on the grounds that the case does not fall within the jurisdiction of the Labour Court. • An order on the duty to witness, the swearing of oaths and fines for breaches of court procedure under Articles 60 and 63. • A decision on the imposition of fines on parties under Article 65. • 7. Siglfirdingur v. Iceland, (E.Ct. H.R. 30 May 2000, app. no. 34142/96) concerned judgments regarding fines (under art. 2 P7) and did not address the possibility of appeals more generally.

  24. The Judiciary: The Impeachment Court • Legal basis: mandated by art. 14 of the Constitution. • The composition and procedural rules of the Court are set out in Act No. 3/1963 on the Court of Impeachment (Landsdómur). • Adjudicates criminal actions brought by Parliament against current and former government ministers. • Composition: 8 elected by Althingi for a period of 6 years. The 5 senior Supreme Court Judges. The Chief Judge of Reykjavík District Court and the Professor of Constitutional law at the University of Iceland. • The independence and impartiality of a quite similar court was questioned in Ninn-Hansen v. Danmark (E.Ct.H.R. 18 May 1999, app. No. 28972/95). The Strasbourg court did not find that the participation of judges appointed by Parliament “disclose[d]” any appearance of a violation of the independence and impartiality requirement” in Art. 6.

  25. The Judiciary: The Impeachment Court, cont. • A case is now pending, but is in its initial stages. Althingi has decided that criminal action should be brought against the former prime minister for negligence. The court has not yet convened, but is expected to do so in February.

  26. Judicial Reform • Rules on the appointment of judges • Act No. 45/2010 amended the rules for the appointment of judges, found in the Act on the Judiciary, No. 15/1998 • Rules described above.

  27. Judicial Reform (2) • A temporary increase in the number of judges • 3 February 2011 Althingi passed as law Act amending the Act on the Judiciary • The act stipulates that the number of judges in the district court will be increased by 5 and in the Supreme Court by 3 • In 2009 the district court judges had already been increased temporarily by 5 judges. • Temporary measure in order to meet the increase of cases following the economic crisis • After 1 January 2013 judges will not be appointed for positions that become vacant until the number of judges is again the same as before the amendments (38 in the district courts and 9 in the Supreme Court)

  28. Judicial Reform (3) • A single district court • A bill submitted to Althingi in October 2009 • The bill stipulated that the eight district courts in Iceland would be replaced by one with several workstations around Iceland • The role of the Judicial Council was expected to the extended in such a way that it would become a central administrative unit with regard to the general organization, finance and matters relating to the staff of the district courts, apart from judges • The bill was not passed as law but this reform is still being reviewed in the Ministry of the Interior

  29. Judicial Reform (4) • Court of Appeal • October 2008: Conclusion of a committee appointed by the Minister of Justice and Ecclesiastical Affairs (now Minister of the Interior) that a Court of Appeal should be established for handling of Criminal cases. • October 2010: In a seminar held by Icelandic Judges’ Association, the Icelandic Association of Prosecutors, The Icelandic Bar Association and the Icelandic Lawyers Association the establishment was highly recommended. • December 2010: Minister of Justice and Human Rights (now Minister of the Interior) appointed a working group to review the establishment of a Court of Appeal for both civil law and criminal cases. • Findings are expected before 1 April 2011.

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