PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. The main issue in the present case was whether the Court of Appeal, which upheld the applicant’s conviction and sentence for a road traffic offence (seventeen months’ imprisonment and the revocation of his driving licence for life), had been a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention, in so far as one of the judges on the bench of the newly constituted Court of Appeal which ruled on his case had not been appointed in accordance with the domestic law.

2. I am in agreement with the judgment that there has been a violation of Article 6 § 1 of the Convention, as the tribunal was not one “established by law”. However, I take objection to the Court’s finding that it did not need to examine the remaining complaints under that provision, namely that the tribunal lacked independence and impartiality. More precisely, my only disagreement with the judgment concerns point 2 of its operative part which holds that “there is no need to examine the remaining complaints under Article 6 § 1 of the Convention”, following point 1 of the operative part (adopted unanimously) by which it found “that there ha[d] been a violation of Article 6 § 1 of the Convention as regards the right to a tribunal established by law”.

3. The explanation given by the Court as to why there is no need to examine the remaining complaints of independence and impartiality is given in paragraph 295 of the judgment:

“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 ...”

4. In my view, after the finding that there was no tribunal established by law, the alleged “remaining complaints” mentioned in point 2 of the operative part, namely those on the right to an independent and impartial tribunal, became immediately and automatically devoid of object and existence ex tunc ; and therefore they should have been rejected as inadmissible ratione materiae , by virtue of Article 35 §§ 3(a) and 4 (under the latter provision, the Court may declare a complaint inadmissible “at any stage of the proceedings”). This consequence is not something that the Court, having held that there is no tribunal established by law, can overlook or consider unnecessary to examine. It should have decided the issue by stating the obvious and rejecting these complaints, in the manner that I propose.

5. It is self-evident that the rule of grammar and logic according to which there can be no adjective without a noun applies here. “Independent” and “impartial” are attributes of a noun, in the present case “a tribunal”, within the meaning of Article 6 § 1. When there is no “tribunal”, as in the present case because of the absence of a tribunal established by law, there is no noun and thus no object to which the adjectives “independent” and “impartial” can correspond, with the result that these adjectives become devoid of object and existence. It is crucial to note that all the requirements of the right to a fair trial specified by Article 6 § 1 are indispensable, and without them the said right cannot be secured. However, the only free-standing requirement of Article 6 § 1 is that there must be a lawful tribunal. This requirement is a central feature of a fair trial as it refers to the very essence of the relevant right. The other requirements of Article 6 § 1, such as the independence or impartiality of the tribunal, or that the hearing should take place within a reasonable time, all pre-suppose the fulfilment of the central demand, namely that the tribunal must have been established by law. In other words, the “independence” and “impartiality” requirements are intrinsic and inseparable qualities related to the very existence of “a tribunal established by law”. It is impossible to examine the qualities of a tribunal that does not exist, just as it is impossible to examine the qualities of a non ‑ existent person or building. Therefore, any hope that a tribunal is independent and impartial will hinge on the fact that it is a tribunal established by law in the first place. The former qualities are dependent on the latter and cannot be left in a vacuum.

6. Regrettably, the Court, by finding that there was no need to examine the complaints of a lack of independence and impartiality, gave the impression that it was referring to the merits of those complaints, thus suggesting that they remained admissible. However, as submitted in this opinion, these complaints had become inadmissible and should have been rejected as such.

7. Finally, the proposed approach is in line with the principle of effectiveness, which underlies all Convention provisions, and according to which all human rights enshrined and guaranteed therein must be protected practically and effectively and not in a theoretical or illusory manner. I would point to some other aspects of this principle, namely that it assists the Court: (i) in seeking to ascertain and determine the core or very essence of an allegedly violated right which needs effective protection and to give it the weight and consideration that it deserves; (ii) in deciding whether there has been a violation of the core of the right; and (iii) if there has been such a violation, to draw, in its corresponding decision, all the necessary conclusions or repercussions from such finding.

8. These aspects of the principle of effectiveness are also corollaries of its capacity to secure rights in a practical and effective manner. In the present case the Court, even though it found a violation of the right in question, on the ground that there had been no tribunal established by law, in holding that there was no need to examine the issues of independence and impartiality, it then failed, with all due respect, to attribute the requisite weight and consideration to the consequences of that violation. And what is more, it failed to do so even though it had rightly acknowledged that the very essence of the right in question had been undermined (see paragraph 295 of the judgment).

[1] The Evaluation Committee that undertook the assessment was composed as follows at the material time: one retired Supreme Court Justice (the chairman, nominated by the Supreme Court), one legal advisor from a law firm (nominated by the Supreme Court), one chief judge from a District Court (nominated by the Judicial Council), one lawyer (nominated by the Bar Association), and one former Minister (nominated by Parliament) All members were appointed by the Minister of Justice for a renewable term of five years.

[2] The complete list of the twelve assessment criteria are as follows: education (5%), judicial experience (20%), experience of legal practice (20%), experience of public administration (20%), teaching experience (5%), academic experience (10%), management experience (5%), other relevant professional experience such as drafting of legislation (5%), general professional competence (5%) and special professional competence including competence in judicial procedure (5%), competence in drafting judgments (2.5%) and competence in conducting hearings (2.5%). As confirmed by the Evaluation Committee in its assessment report, the sum of the respective percentages amounts to 105%.

[3] A.E. was ranked 18th with 5.275 points It should be noted, by comparison, that the candidate ranked first had received a total of 7.35 points, and the candidate ranked last had been given 3.525 points.

[4] These candidates had received 6.2, 5.75, 5.675 and 5.525 points, respectively.

[5] These candidates had received 5.4, 5.275, 4.625 and 4.325 points, respectively.

[6] The points received by the candidates under “judicial experience”, as well as the sex of each candidate, are as follows (listed from the candidate with the highest overall ranking to the lowest): 1st candidate: 8 (M); 2nd candidate: 6.5 (M); 3rd candidate: 6 (F); 4th candidate: 4.5 (M); 5th candidate: 0 (M); 6th candidate: 10 (F); 7th candidate: 3.5 (M); 8th candidate: 0 (F); 9th candidate: 0.5 (M); 10th candidate: 9.5 (M); 11th candidate: 5.5 (M); 12th candidate: 0.5 (M); 13th candidate: 1.5 (F); 14th candidate: 1(M); 15th candidate: 9.5 (F); 16th candidate: 0.5 (M); 17th candidate: 6 (M) ; 18th candidate: 8.5 (F); 19th candidate: 0 (F); 20th candidate: 7 (M); 21 candidate: 0 (F); 22nd candidate: 6.5 (F); 23rd candidate: 7 (F); 24th candidate: 0.5 (M); 25th candidate: 2.5 (F); 26th candidate: 0 (M); 27th candidate: 9.5 (M); 28th candidate: 0 (F); 29th candidate: 4 (M); 30th candidate: 9.5 (M); 31st candidate: 5.5 (F); 32nd candidate: 2 (M); and 33th candidate: 0 (F).

[7] All four candidates removed from the Evaluation Committee’s original list were male; in their place, the Minister of Justice proposed two male and two female candidates.

[8] Endorsed by the Ministers’ Deputies at the 1263th Meeting (6-7 September 2016) and by the Congress of Local and Regional Authorities of the Council of Europe at its 31st Session (19-21 October 2016).

[9] Adopted by participants from European countries and two judges’ international associations, meeting in Strasbourg on 8-10 July 1998 (meeting organised under the auspices of the Council of Europe), endorsed by the meeting of the Presidents of the Supreme Courts of Central and Eastern European countries in Kyiv on 12-14 October 1998, and again by judges and representatives from Ministries of Justice from 25 European countries, meeting in Lisbon on 8-10 April 1999.

[10] See, in support of this argument, Principle 10 of the UN Basic Principles on the Independence of the Judiciary; paragraph 19 of the UN Human Rights Committee General Comment no. 32; paragraph 44 of Recommendation CM/Rec 2010(12) of the Committee of Ministers of the Council of Europe; paragraph 25 of Opinion no. 1 (2001) of the CCJE; and the Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence, which are cited in paragraphs 117, 118, 121, 124, 125 and 145 above respectively; see also the CJEU judgment in Joined Cases C ‑ 585/18, C ‑ 624/18 and C ‑ 625/18 dated 19 November 2019 (noted in paragraph 138 above), where the CJEU affirmed the necessity to ensure that “the substantive conditions and detailed procedural rules governing the adoption of [judicial] 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”.

[11] When the Evaluation Committee was initially established on 19 May 1989 by Act no. 92/1989, it was composed of only three members (see paragraph 11 above). The former Judiciary Act, which had entered into force on 1 July 1998, originally maintained the composition of the Evaluation Committee. However, the number of members of the Committee was subsequently increased to five by Act no. 45/2010 which amended the former Judiciary Act in May 2010 (see paragraphs 13 and 14 above).

[12] See footnote 6 above.

[13] Paragraph 222 of the present judgment.

[14] Paragraph 280 of the present judgment.

[15] To use the word in paragraph 285 of the present judgment.

[16] Paragraphs 214 and 226 of the present judgment.

[17] Paragraph 227 of the present judgment.

[18] Paragraph 228 of the present judgment.

[19] Paragraph 230 of the present judgment.

[20] Recommendation CM/Rec(2010)12 of the Committee of Ministers to member States on judges: independence, efficiency and responsibilities (adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies), see §§ 27, 46.

[21] The Consultative Council of European Judges, at its 11th plenary meeting (17 ‑ 19 November 2010), adopted a Magna Carta of Judges (Fundamental Principles), see § 13.

[22] Opinion on the Laws on the Disciplinary Liability and Evaluation of Judges of “The Former Yugoslav Republic of Macedonia” (CDL-AD(2015(042)), adopted by the Venice Commission at its 105th plenary session (18-19 December 2015), see § 77.

[23] Fourth evaluation round report on Portugal, adopted on 4 December 2015, see recommendation (vi). See my opinion appended to Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, 6 November 2018.

[24] Paragraph 257 of the present judgment.

[25] Paragraphs 121 and 126 of the present judgment referring, respectively, to Recommendation CM/Rec(2010)12 and CCJE Opinion 18/2015.

[26] Paragraph 230 of the present judgment.

[27] Paragraph 243 of the present judgment. For a critique of this mantra, see my opinion appended to Correia de Matos v. Portugal [GC], no. 56402/12, 4 April 2018.

[28] Paragraph 244 of the present judgment.

[29] Paragraph 247 of the present judgment. The tone is already set in paragraph 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 in terms of Article 6 § 1 ...” (original emphasis).

[30] As the Government rightly argued in paragraph 97 of their submissions before the Grand Chamber.

[31] Paragraph 283 of the present judgment.

[32] Paragraphs 282 and 283 of the present judgment.

[33] Paragraph 245 of the present judgment.

[34] Paragraph 256 of the present judgment.

[35] 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 . Thus there is the possibility that the majority of the Committee’s members may not be serving judges, nominated by courts.

[36] As hinted by the Court itself in paragraph 288 of the present judgment when referring to the “discretionary powers previously held by her office in the context of judicial appointments”.

[37] Paragraph 93 of the Government’s submissions before the Grand Chamber of 11 November 2019.

[38] Paragraph 91 of the Government’s submissions.

[39] Paragraph 246 of the present judgment.

[40] Paragraph 252 of the present judgment.

[41] Paragraph 246 of the present judgment.

[42] Paragraph 252 of the present judgment.

[43] See my separate opinion in Muhammad and Muhammad v. Romania [GC] , no. 80982/12, 15 October 2020.

[44] Ibid., paragraph 26 of that separate opinion.

[45] Paragraphs 151 and 153 of the present judgment; see also Opinion delivered by the Advocate General Sharpston on 12 September 2019 (EU:C:2019:977) in the CJEU cases of Simpson and HG (C-542/18 and C-543/18).

[46] See paragraphs 16-20 of the partly dissenting opinion of Judges Kalaydjieva, Pinto de Albuquerque and Turković in Dvorski v. Croatia [GC], no. 25703/11, §§ 16-20, 20 October 2015, on the impact of structural errors on the fairness of criminal proceedings, and again my opinion in Muhammad and Muhammad , cited above, § 28.

[47] Paragraph 75 of the present judgment and paragraph 118 of the Chamber judgment. The relevant phrase in the Supreme Court’s judgment reads as follows: “... höfðu ákvarðanir hennar eigi að síður þær afleiðingar að bættur var hlutur einhvers úr hópi fjögurra annarra umsækjenda sem dómnefnd hafði raðað lægra en áfrýjanda ”. The Government submitted this translation: “... her decisions nevertheless had the consequence of compensating a share of someone in the group of four other applicants, which the Evaluation Committee had rated lower than the appellant”. The translation is not very clear, but the gist of the sentence is really that the Minister of Justice’s decision “rather served the interests of some of the other four she favoured in the process”; this was the Chamber’s interpretation in paragraph 118 of its judgment.

[48] Paragraph 90 of the present judgment.

[49] Paragraph 281 of the present judgment.

[50] See the discussion in Murtazalyeva v. Russia [GC], no. 36658/05, 18 December 2018.

[51] DMD Group, a.s., v Slovakia , no. 19334/03, § 61, 5 October 2010.

[52] Henryk Urban and Ryszard Urban v Poland , no. 23614/08, §§ 45-56, 30 November 2010.

[53] Morice v. France [GC], no. 29369/10, § 78, ECHR 2015.

[54] See, on the possible injunctions of the Court, my opinion in Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, 11 July 2017.

[55] This Court is evidently not constrained by the fact that the Supreme Court’s judgment of 21 May 2019 seems to significantly narrow the terms under which a case can be reopened in Iceland after a violation has been found by the Court.

[56] In this regard, it is instructive to recall the words of Advocate General Sharpston, that “[where] there is a ‘flagrant’ breach of the right to a tribunal established by law that operates to the detriment of the confidence which justice in a democratic society should inspire in litigants, the judgments affected by that irregularity should evidently be set aside without more ado” (Opinion of 12 September 2019, cited above, § 109).

[57] This is the argument that the Government used against reopening (paragraphs 180 and 181 of the present judgment).

[58] Paragraph 283 of the present judgment.

[59] Paragraph 295 of the present judgment.

[60] On the clarity of the threshold test developed in the Grand Chamber’s judgment, see further below.

[61] As explained in paragraph 96 of the Grand Chamber judgment, the compensation proceedings involving the remaining two judges are still pending.

[62] The Supreme Court held that, whereas the applicant’s main request was that A.E. should withdraw because of her unlawful appointment, he had incorrectly presented that claim as a “recusal request” (see paragraph 84 of the judgment). Under Icelandic law, the Supreme Court could not deal with a challenge to the lawfulness of the appointment of a judge on the appellate panel on the basis of an interlocutory appeal. Such a claim could only be examined by the Supreme Court on a direct appeal in the event of a conviction; in other words, after the challenged judge had already heard and disposed of the case.

[63] It should of course be noted that the regularity of the appointment of the other two members of that panel was never called in question.

[64] See paragraph 313 of the judgment, where reliance is placed on the applicant’s indication at the oral hearing (later retracted in writing) that he did not seek reopening. The Court was not, in any event, bound, under Article 46 of the Convention, by the applicant’s specific requests and was entitled to indicate any measure it deemed necessary to put an end to the violation found.

[65] The threshold test developed by the Grand Chamber and the language used to explain and delimit that test may give rise to some uncertainty.

On the one hand, the Grand Chamber indicates that the “flagrant breach” test applied by the Chamber – itself an innovation if not a departure from previous case-law – was designed to accommodate the principles of legal certainty, res judicata and irremovability, and to distinguish what type of appointment irregularities would lead to a violation of the right to a tribunal established by law. However, while the Grand Chamber endorses the logic and general substance of the Chamber test, it declares that it will not apply the same flagrant breach concept; its threshold test being composed of other or additional elements and/or called something else.

On the other hand, as regards the language used to translate this new threshold test, the judgment refers to “the gravest breaches of the judicial appointment rules” (paragraph 241), an assessment of whether particular defects or irregularities in a given appointment procedure “were of such gravity as to entail a violation” (paragraphs 243 and 255), a manifest breach of domestic appointment rules (paragraph 244), “breaches that wholly disregard the most fundamental rules in the appointment procedure” (paragraph 246), grave irregularities or breaches that affect “the (very) essence of the right to a ‘tribunal established by law’” (paragraphs 247, 255, 267 and 289), whether the breaches in a given appointment procedure “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’” (paragraph 259). This varying language contrasts with the clarity of that derived from long-established case-law as to when a departure from the principle of legal certainty may be 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 the case-law cited in paragraph 238 of the judgment).

[66] See, in particular, Ilatovskiy v. Russia (no. 6945/04, §§ 43-45, 9 July 2009). The majority recognise in paragraph 225 of the judgment the differences between that case and the present one but do not derive from those crucial differences the relevant consequences.

[67] DMD Group, a.s., v. Slovakia , no. 19334/03, § 59, 5 October 2010.

[68] Kontalexis v. Greece , no. 59000/08, 31 May 2011.

[69] See footnote 5 above.

[70] The Court does not, in general, apply the requirements of Article 6 § 1 mechanically and in isolation, but seeks to assess in practice the extent to which a failure to comply with one of the conditions affects the fairness of the trial as a whole. In a series of judgments, it has come to the conclusion that not every breach of the rules guaranteeing the fairness of the trial necessarily entails a violation of Article 6. Indeed, it examines the trial as a whole and relates the different elements of its conduct to each other. If it finds, in this overall examination, certain deficiencies which, taken in isolation, would not have led to the finding of an unfair trial, it may come to the opposite conclusion if the deficiencies taken as a whole render the trial unfair. This case-law highlights the relative nature of breaches of the various guarantees of a fair trial in general and of the independence of the judge in particular: a breach of the procedural rules surrounding the safeguarding of independence does not automatically and mechanically lead to a violation of Article 6. It must be of a certain seriousness or be combined with a number of other breaches which, taken as a whole, impair the fairness of the trial. See Beuze v. Belgium [GC], no. 71409/10, § 120, 9 November 2018: “The fairness of a criminal trial must be guaranteed in all circumstances. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case ... The Court’s primary concern, in examining a complaint under Article 6 § 1, is to evaluate the overall fairness of the criminal proceedings.” The same principles apply in civil matters, see Regner v. the Czech Republic [GC], no. 35289/11, § 151, 19 September 2017.

[71] In their assessment, they moreover draw inappropriate parallels with cases that are – too – far away from the case at hand. In this respect, the reference to the Iliatovsky case dealing with lay persons who had not been appointed judges in accordance with the legal requirements (paragraph 225 of the judgment) is particularly inappropriate. It is obvious that they were simply not judges at all.

[72] See, for example, Grzęda v. Poland (no. 43572/18); Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18); Broda v. Poland (no. 26691/18) and Bojara v. Poland (no. 27367/18); Żurek v. Poland (no. 39650/18); Sobczyńska and Others v. Poland (nos. 62765/14, 62769/14, 62772/14 and 11708/18); and Reczkowicz and Others v. Poland (nos. 43447/19, 49868/19 and 57511/19).

[73] Joined Cases C-585/18, C-624/18 and C-625/18 A.K.v. Krajowa Rada Sądownictwa , and CP and DO v. Sąd Najwyższy (EU:C:2019:982).

[74] Ibid., § 133.

[75] Ibid., § 134 (emphasis added).

[76] Cases C-542/18 RX-II and C-543/18 RX-II of 26 March 2020, Simpson v. Council of the European Union and H.G. v. European Commission (EU:C:2020:232) .

[77] See, in particular, the extensive references to the Chamber judgment in the present case in the Opinion of Advocate General Sharpston of 12 September 2019 (EU:C:2019:977).

[78] Case T-646/16 P Simpson v. Council of the European Union (EU:T:2018:493).

[79] Ibid., § 43. See also the judgment of the General Court in case T-639/16 P FV (EU:T:2018:22), at § 78, reproduced in paragraph 132 of the Grand Chamber judgment.

[80] Cases C-542/18 RX-II and C-543/18 RX-II, cited above, §§ 79-80.

[81] We note that Advocate General Sharpston sought, in §§ 76-87 of her Opinion, to distinguish the Simpson and Ástráðsson cases, pointing to what she referred to in the present case as “manipulation of a list by the executive”. However, what she had in mind in this regard becomes clearer in paragraph 107 of the Opinion where she explains that setting aside a judgment adopted by a judge whose appointment was regular would be justified: “where a procedure is manipulated by political leaders in order to secure the appointment as judge of a supporter of theirs who does not have the legal qualification required by the call for applications ...”. This is, unquestionably, not the situation in the Ástráðsson case.

[82] Case C ‑ 216/18 PPU, Minister for Justice and Equality v LM (EU:C:2018:586).

[83] Ibid., §§ 61 and 68.

[84] Ibid., § 75. For this distinction between the general assessment of systemic problems and the individual assessment of concrete consequences see also the Irish Supreme Court’s follow-up judgment to the CJEU ruling: “It is of the essence of the test … that once there has been a claim of a generalised or systemic breach of independence, there must nevertheless be an individual, specific and precise determination of whether that, in the particular case, on its own or in conjunction with other factors, amounts to a breach of the essence of a right to a fair trial ” ( Minister for Justice and Equality v. Celmer (2018) IESC); and the Opinion of Advocate General Sharpston (cited above, § 109) in relation to appointment irregularities which were not flagrant in the majority sense, as we contend is the case here: “... if it transpires that the substance of the right to a fair trial was adversely affected, it will become imperative to give that right precedence over the principle of legal certainty and set aside the judgment at issue”.

[85] See, for example, the pending Dutch preliminary reference in case C-354/20 PPU L v. Openbaar Ministerie (EU:C:2020:1033).

[86] See, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, or, previously, Kamil Uzun v. Turkey , no. 37410/97, § 64, 10 May 2007.

[87] See, for example, the separate opinion of Judge Sicilianos in Myasnik Malkshyan v. Armenia , no. 49020/08, 15 October 2020.

[88] Thus, for example, it is clearly stated in the submissions of the respondent Government that the need for greater weight to be given to judicial experience had also been emphasised by the vice-chairman of the Icelandic Judges’ Association. A representative of the latter association was invited to the meeting of the Parliamentary Constitutional and Supervisory Committee (CSC) on 29 May 2017 (paragraph 45 of the judgment) and was questioned by the CSC on 30 May 2017 (paragraph 48 of the judgment). Details of what answers were provided by the judges’ association to the CSC is not, unfortunately, provided in the judgment. See also the 2016 report of the Icelandic Parliamentary Ombudsman on shortcomings in evaluation procedures which had developed in Iceland for appointment to public posts (reproduced in paragraph 116 of the judgment):

“... in recent years the above-mentioned (evaluation) 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. … This results in genuine uncertainty about whether the most qualified candidate for a post obtained the highest score ...” (emphasis added).

[89] Compare the separate opinion of Judges Lemmens and Griţco at Chamber level, paragraph 8:

“... the ‘flagrant denial of justice’ test is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6. What is required is ‘a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article’ ... Transposed to the requirement that a tribunal must be ‘established by law’, this would mean that there could only be a violation of Article 6 § 1 of the Convention where the breach of the rules relating to the establishment or the jurisdiction of the tribunal is of such a fundamental nature as to amount to the destruction of the very essence of the guarantee of establishment by law ...”

[90] See also paragraphs 1 and 15 of the concurring opinion of Judge Pinto de Albuquerque, where he recognises that the appointment irregularities at issue were “undeniably remote” from the applicant’s case.

[91] See, mutatis mutandis , Kleyn and Others v. the Netherlands [GC], no. 39343/98 and 3 others, § 194, ECHR 2003 ‑ VI, and Filippini v. San Marino (dec.), no. 10526/02, 26 August 2003.

[92] For an overview of well-established case-law demonstrating the centrality of independence see the Court’s new Factsheet on the Independence of the justice system , https://echr.coe.int/Documents/FS_Independence_justice_ENG.pdf .