Strasbourg, 12 February 2001

[ccje/docs2001/ccje(2001)7e]

CCJE (2001) 7

Consultative Council of European Judges

(CCJE)

Questionnaire on

the independence of judges,

their appointment and careers,

and funding of the courts

Reply submitted by

ICELAND

I.                   The Independence of Judges

1.                  Is the independence of judges guaranteed by the Constitution or by legislation?

The independence of the Icelandic judiciary is primarily safeguarded by the idea of the division of powers written into the Constitution and traditionally acknowledged.[1] Article 2 of the Constitution states that Parliament has the legislative power, the executive power is invested in the President of the republic and the government, and judges are the guardians of the judicial power. In chapter V of the Constitution, Articles 59 to 61, the independence of the judiciary is further emphasized. There it is stated, among other things, that the judicial order is only to be decided by law; that judges are, in their work, only to be guided by the law; and that judges may only be removed from office by the order of a court. Further clauses concerning the status and official duties of the courts, judicial functions and jurisdictions were found in the procedural legislation.[2] But in spite of the clear statement about the division of powers in the Constitution and constitutional theory it was first in 1989 that lines between the judicial and the executive functions were drawn clearly. [3]

In 1998 the first Judicial Act was passed.[4] It states how the judicial system in Iceland is organized, how the country is divided into jurisdictions, defines the duties of the courts, states the rights and duties of judges, and the authority under which the internal and external administrative affairs of the judiciary fall. The Icelandic court system is simple. There are only two judicial levels: eight district courts and one Supreme Court, which accordingly is the only appellate court.

In the Judiciary Act it is explicitly stated that “Judges are independent and fully responsible in exercising their judicial duties. They are only to rule by the law and can never be submitted to the authority of others in their work. A judicial action may only be reviewed following an appeal to a higher court.”[5]

2.                  What institutional safeguards are there with regard to the independence of judges?

Further provisions regarding the rights and duties of judges are to be found in the Judiciary Act. The aim of the Judiciary Act was to strengthen the judiciary power and the independence of judges. This was done by founding a Council of Judicial Affairs and moving many internal affairs of the courts, previously handled by the Ministry of Justice, to that Council. The composition of the Council is important, it has five members, four of which are judges, but one is chosen by the Minister of Justice. Among other things, the Council[6] distributes the budget of the district courts, makes recommendations to the Ministry of Justice in respect of budgetary needs and represents the courts in administrative matters, distributes the workload between the courts to some extent, and may ask judges to temporarily move to another court, keeps account of court efficiency, is an advisory council on procedural changes and other legislative matters concerning the judiciary, and provides for and organizes training programs for judges. Although the Minister’s powers have been reduced, the Minister of Justice remains the head of the judiciary, appoints judges and makes a proposal as to the budget of the courts to Parliament.

The Judiciary Act also provides for two committees with important functions. The Selection Committee[7] has the role to discuss the competence of applicants for the office of district court judge. The Disciplinary Committee (or in literal translation – the Committee About the Office of Judges)[8] has the role to guard that judges do not hold extra-judicial jobs, sit on committees or own a part in a firm, unless this is considered compatible with the office of a judge. The purpose is to insure that such activities do not compromise judges’ impartiality in court. Complaints regarding official duties of judges may be presented to that committee, which also has a disciplinary power to some extent.

3.                  Is the irremovability of judges recognised?

Yes. Article 61 of the Constitution states that a judge may not be removed from office unless a court of law has ruled that action well grounded and legitimate.

In the Judiciary Act further details in this respect are stated.[9] A judge may be removed temporarily if he or she has lost the qualifications required by law; if he or she has not taken notice of a legitimate admonition; is under a criminal prosecution for an act that would, if proven true, lead to a loss of required qualification; or if suspected of an immoral conduct to the same effect.

            In a different manner the Council of Judicial Affairs has the power to move judges between jurisdictions, if it sees it necessary, for a period up to six month every ten years.[10]

4.         Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?

No. Judicial decisions may only be reviewed through an appeal to a higher court.[11] In Iceland there is a two-level court system, eight district courts and one Supreme Court. Procedural rules allow for a cassation of a judicial decision within the district courts themselves under special exceptional circumstances. They also define the conditions for and the procedure of an appeal to the Supreme Court. No other authority is entitled to review judicial decisions. The courts, on the other hand, have the power to review administrative decisions and the limits of executive powers.[12]

5.      Can a case be withdrawn from a judge?

No, in principle it cannot. There are however a few exceptions.

(i)                 on what grounds?

The Judicial Act[13] provides for circumstances where a withdrawal of a case from a judge may be necessary. For example if for some reasons the judge does not try the case within a reasonable time; or if a judge cannot do so because of an illness or some comparable unforeseeable situations.

(ii)               by which authority?

It is the chief judge in each court who is responsible for distributing cases to judges, and consequently also is invested with this limited power to withdraw a case from a judge for the reasons explained in (i). The judge concerned may appeal such a decision to the Council of Judicial Affairs.

II.                The appointment of judges and their careers.

1.                  What qualifications are required and what conditions must be met in order to become a judge?

The conditions for being qualified to an appointment as a judge at the district courts are stated in the Judicial Act.[14] They are the following:

Has reached the age of 30.

Is a citizen of Iceland.

Is mentally and physically fit to fill the office.

Is legally competent and has never lost the power of decision over the financial affairs of his or hers estate.

Has neither been found guilt of a punishable act that can be deemed egregious in public opinion nor exhibited habitude that could lessen the trust that judges must generally enjoy.

Has earned the degree of candidatus juris or a university degree in an area evaluated as comparable.

Has, for at least three years, been a minister of parliament; or has been engaged full time in litigation; or has held a full time job of engagement in legal services as an employee of the State or a municipality. Work in each of these areas may be combined cumulatively.

Qualifications for appointment as a judge at the Supreme Court are the following:[15]

Has reached the age of 35.

Is a citizen of Iceland.

Is mentally and physically fit to fill the office.

Is legally competent and has never lost the power of decision over the financial affairs of his estate.

Has neither been found guilty of a punishable act that can be deemed egregious in the public eye nor exhibited habitude that could lessen the trust that judges must generally enjoy.

Has earned a degree of candidatus juris or a university degree in an area evaluated as comparable.

Has worked for at least three years as a district court judge, appellate attorney, professor of law, chief of police, district commissioner, director of public prosecutions, assistant director of public prosecutions, district attorney, secretary general of a ministry, chief administrator in the Ministry of Justice or ombudsman for the Althingi, or has for an equal period performed similar work providing comparable legal experience.

Is found competent to fill the office in light of his career and legal expertise.

            A person may not be appointed to the office of a Supreme Court Judge if the same is, or has been, married to a judge sitting on the Court, or is related, or has family connections by marriage, through parents, grand parents, children, grand children, siblings or siblings' children to a judge sitting on the Court.

2.                  Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?

Judges in Iceland are in principle appointed on the basis of their qualifications. The professional knowledge of law carries considerably in the valuation of those. Explicit examinations, competitive or professional, have not been practiced in the connection with appointment of judges. Supreme Court Judges are appointed by the President of the Republic on the recommendation of the Minister of Justice, who in fact chooses the applicant. Judges of the district courts are appointed by the Minister of Justice. Open posts, at both levels, are advertised by the Ministry of Justice.

In the case of an appointment of district court judges, The Selection Committee[16] shall provide the Minister of Justice with a written, reasoned statement about the qualifications of applicants for the office. The committee’s role is to examine the applicants’ qualifications and to make a recommendation as to who is the best qualified for the post, and if considered appropriate to rank the applicants according to qualifications. The Minister is not bound by the committee’s opinion when making the final decision.

In the case of an appointment to the Supreme Court. The Minister of Justice shall seek a statement from the Court itself to the effect whether applicants fulfill required conditions and in respect to their competence for the office.[17]

The Court may also rank applicants according to qualification, however, this is usually not done.

3.                  What level of studies is required to become a judge?

To have earned the degree of candidatus juris or a degree equally valid.[18] Presently all Icelandic judges have a law degree from the University of Iceland. Behind this degree there are five years of legal studies. Before completing the studies the student must submit a thesis.

4.                  Is previous professional experience required?

Yes. A candidate for the post of district judge must have a minimum three years of professional experience.[19]

5.                  Are there any age requirements?

Yes. The age of 30 at the district courts and 35 at the Supreme Court.[20]

6.                  Are judges elected?

No.

7.                  Or are they appointed?

Yes.

8.                  Or are they selected in another way?

Substitute judges to the Supreme Court are appointed by the Minister of Justice on the recommendation of the president of the Court, either to sit on a particular case or for a fixed period in time. These may be chosen from the group of district court judges, professors of law or from the groups of advocates to the Supreme Court.[21] Substitute judges at the district courts are also appointed temporarily by the Minister on the recommendation of the Council of Judicial Affairs.[22] They must satisfy general conditions for becoming a district court judge.

            The rule is that one judge handles cases assigned to him or her in the district courts. If considered necessary the judge may request that two other judges also decide on a particular case. The first judge is then the president of this panel of three judges. If a case calls for an expertise knowledge, the judge may call on two specialists to sit with him or her on that case in a three judge panel. The combination of two judges and one expert is also allowed.[23] It may be noted here that in Iceland there is no practice of trials by jury.

9.                  Which authority is responsible for recruiting judges? 

The Minister of Justice.[24] The Council of Judicial Affairs decides in which district court new judges are positioned.

10.              Does any authority independent of the government and the administration take part in the selection or promotion process? – if so, specify the composition and role of this body?

            The Selection Committee, cf. question II, 2 above. The Committee is composed of three lawyers appointed by the Minister, on the recommendation respectively of the Supreme Court, the Judges Association and the Association of Attorneys. Each for the term of three years at a time, no one can sit more than two terms.[25] The Supreme Court itself reviews applications to a chair at the Court and comments on applicants’ qualifications.

11.              How and by whom are judges promoted?

There is not a formal procedure of promotion within the Icelandic court system. The obvious rout for a district court judge is to the Supreme Court, which is the only appellate court in the country. However, as has been stated other professions are also qualified to fill vacant chairs at the Court.

12.              What are the criteria for promoting judges? Are they objectively defined?

There is no system of promotion within the judiciary.

13.              In what cases can a judge be removed from office?

Permanently only by the decision of a court of law.

Temporarily a judge may be removed from office following an ineffective rebuke; also if one or more of the qualifications required to become a judge is no longer present; further still if he or she is accused of an offence which, if found guilty, would result in that those qualifications no longer were being met.[26]

14.              Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?

In a small society as the Icelandic one, there is perhaps considerable danger that personal or political opinions of ministers will unduly influence the appointment of judges. It is now being discussed whether the Parliament should in one way or another have a hand in the appointment process. It should also be mentioned that an important step was taken in respect to safeguarding the choice of the most qualified applicant to the district courts when the Selection Committee, mentioned above, was established by the Judicial Act of 1998. Such a safeguard does not exist in respect to the Supreme Court and it has lately been criticized that the combination of personalities and the outlook of the individual Justices there is about to become quite homonymous. It is clearly important for the independence of judges that their group represents the ratio of societal norms, as the case may be, otherwise there is the danger that certain approaches will be unduly suppressed within the law, which in turn would undermine the vital judicial trust of the public. To name an example for clarification, a court case concerning so-called social human rights has recently shaken the pillars of the Icelandic judiciary.

            It seems also clear that working conditions of judges do have an effect on their independence, if not directly, then indirectly. If salaries are not sufficiently high judges often must take on extra-judicial duties in order to increase their income, this may in turn endanger his or hers independence. The Disciplinary Committee, established in 1998, has the role of keeping an overview of such activities. A similar comment may be made in respect to working conditions, sufficient support from legally trained staff and secretaries seems likely to strengthen judges’ independence.

III.             The Funding of the Courts

1.                  How are the courts’ activities funded?

They are included in the State Budget, as a subsection under the Ministry of Justice.

2.                  Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.

An Act of the State Budget is passed by the Parliament in December each year. The budget of the judiciary is there included in the same way as other state institutions.

            Concerning the Supreme Court, the Court itself makes recommendation to the Ministry of Justice, at the beginning of every calendar year, describing the proposed financial needs of the Court for the year thereafter. The ministry then makes its own independent proposal to the Ministry of Finance as to what the budget of the Court ought to be. In the fall of each year the Minister of Finance represents the Bill of the State Budget to the Parliament, in which the recommendations of the Ministry of Finance are stated, a sub section is assigned to the Supreme Court.

            As to the district courts, in first instance the Chief Justices of each court make a proposal to the Council of Judicial Affairs, which in turn collects all the proposals  from the courts and thereafter writes one collective recommendation to the Ministry of Justice, reflecting the total financial needs of all the district courts. The Minister of Justice then makes an independent proposal to the Minister of Finance, who in turn makes an independent proposal as to the joint budget of the district courts and presents it in the Bill of the State Budget.

3.         Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

Individual judges have no say whatsoever, apart from the named proposal of the Head of Court. When the Council of Judicial Affairs has made its formal proposal as to the budget it has no further say in the matter. Representatives of the Council have, nevertheless, tried to lobby in the ministries and in Parliament in the hope of hindering their proposal to suffer serious cut in the preparation of the Bill. The rule is that the Bill suggests a lower sum than proposed by the Council and that proposal may suffer further cuts during the parliamentary process.

When the Bill has been passed it is the role of the Council of Judicial Affairs to divide the budget between the district courts, taking into account the number of employees in each and to other needs. It is in the power of the Council to decide how many judges and staff work at each court, depending on the work load. However the possibility to increase the number of employees is ever limited by the budget.

4.                  Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?

Icelandic courts are fairly equipped, especially in respect to data processing facilities. During the last decade a renewal of these facilities has taken place and software, especially designed to meet the various needs of the courts, has been created, for example a registration system. This has helped to reduce considerably the average time of procedure, which, at present, is short in Iceland.

            Low budget of the courts has, on the other hand, for some time hindered the employment of sufficient staff to the courts. This is especially the case regarding legally trained assistants, who are much too few. An older system of deputy judges, which was abolished, has not been properly replaced by legal assistants as was expected and as the law provides for. This lack of legally trained assistants has increased the workload on judges; this has, nevertheless, not yet resulted in lengthening the average period of time it takes for a case to be processed at the courts.

5.                  Do judges encounter other material difficulties, which prevent them from acting efficiently?

No.

6.                  Are appropriate measures taken to assign non-judicial tasks to other persons?

See answer to question III.4. Due to lack of staff, judges must attend to several non-judicial tasks connected to the cases they handle, such as writing summons and letters, tasks that could be done by others. As a rule there is for example one secretary for several judges.

7.                  General comments on the funding of the courts.

The Icelandic Judiciary entertains apparent independence which is guarded by the Constitution and the Judicial Act. Since the Judicial Act was passed in 1998 the control of government in judicial matters is mainly effective in the budgetary decisions and through the appointment procedure. The main threat facing the independence of the judiciary and individual judges lies in a too limited budget over an extended period of time. There seems to be an urgent aim to secure that more attention will be paid to the reasoned budgetary proposals of the judiciary under the preparation of the Bill of the State Budget.