issued by the Registrar of the Court

ECHR 042 (2019)

31.01.2020

Forthcoming hearings in February 2020

The European Court of Human Rights will be holding the following two hearings in February 2020:

Guðmundur Andri Ástráðsson v. Iceland (application no. 26374/18), which concerns the applicant’s
allegation that the new Icelandic Court of Appeal (Landsréttur) which upheld his conviction was not
established by law, having regard to irregularities in the appointment of one of the judges sitting on
the bench;

Hanan v. Germany (no. 4871/16), which concerns an investigation into an airstrike in Afghanistan
which killed the applicant’s two sons.

After these hearings the Court will begin its deliberations, which will be held in private. Its ruling in
the cases will, however, be made at a later stage. A limited number of seats are reserved for the
press in the hearing room. To be sure of having a seat, you need to book in advance by contacting the
Press Unit at echrpress@echr.coe.int.

On 5 February 2020 at 9.15 a.m.: Grand Chamber hearing in the case of

Guðmundur Andri Ástráðsson v. Iceland (application no. 26374/18)
The applicant, Guðmundur Andri Ástráðsson, is an Icelandic national who was born in 1985 and lives
in Kópavogur (Iceland).
Mr Ástráðsson was convicted in March 2017 of driving without holding a valid licence and of being
under the influence of narcotics. His appeal was heard by the new Court of Appeal (Landsréttur),
which had been set up in January 2018. Judge A.E. was one of the judges assigned to his case and
Mr Ástráðsson requested that she withdraw, arguing that there had been irregularities in the
procedure for her appointment, but his motion was rejected.
The Court of Appeal upheld Mr Ástráðsson’s conviction and in April 2018 he appealed to the
Supreme Court, arguing that A.E.’s appointment had not been in accordance with the law and that
he had not enjoyed a fair trial before an independent and impartial tribunal established by law. He
also alleged that there had been a political motive for her being chosen.
In May 2018 the Supreme Court dismissed his appeal. It found that despite flaws in the procedure to
appoint A.E. to the Court of Appeal, as established in its previous judgments of December 2017 (see
below), her nomination had been valid. There was not a sufficient reason to doubt that
Mr Ástráðsson had had a fair trial before independent and impartial judges.
A.E. had been appointed after a selection procedure whereby an Evaluation Committee had first
assessed 33 candidates for the posts of the initial 15 Court of Appeal judges. The Minister of Justice
subsequently chose 11 of the Committee’s 15 suggested candidates, adding four others, including
A.E., who had ranked lower on the Committee’s evaluation list of the best candidates. The Minister
presented arguments for the changes she had decided to make to the Committee’s findings.
In June 2017 Parliament voted by a majority to approve the Minister’s list and later that month the
President of Iceland signed the judges’ appointment letters, including A.E.
Two candidates proposed by the Evaluation Committee but removed by the Minister from the final
list sued the Icelandic State, challenging the legality of the appointment procedure. In
December 2017 the Supreme Court rejected their claims for compensation for pecuniary damage
but granted each of them 700,000 ISK (approximately 5,700 euros) as compensation for personal
injury.
The Supreme Court found that the Minister had violated administrative law by failing to substantiate
her proposal to Parliament with an independent investigation shedding light on the elements
necessary to assess the merits of her departure from the Evaluation Committee’s list. The procedure
in Parliament had also been flawed as Parliament had approved the amended list en bloc without
voting on each candidate separately, as required by law.
The application was lodged with the European Court of Human Rights on 31 May 2018.
Relying on Article 6 § 1 (right to an independent and impartial tribunal established by law) of the
European Convention on Human Rights, the applicant complains that A.E.’s appointment was not in
accordance with domestic law and that his criminal charge was therefore not determined by a
tribunal established by law.
He also complains that the Supreme Court’s May 2018 judgment in his case violated his right to be
heard by an independent and impartial tribunal as provided for in Article 6 § 1 of the Convention.
In its Chamber judgment of 12 March 2019, the European Court of Human Rights, held, by five votes
to two, that there had been a violation of Article 6 § 1 (right to a tribunal established by law) of the
Convention. The Chamber found in particular that the process by which A.E. had been appointed had
amounted to a flagrant breach of the applicable domestic rules. It had been to the detriment of the
confidence that the judiciary in a democratic society must inspire in the public and had contravened
the very essence of the principle that a tribunal must be established by law. The Chamber further
held, unanimously, that there was no need to examine the remaining complaints under Article 6 § 1
(right to an independent and impartial tribunal).
On 9 September 2019 the Grand Chamber Panel accepted the Government’s request that the case
be referred to the Grand Chamber1.

On 26 February 2019 at 9.15 a.m.: Grand Chamber hearing in the case Hanan v.
Germany (no. 4871/16)
The applicant, Abdul Hanan, is an Afghan national who was born and lives in Omar Khel, Afghanistan.
In December 2001 the German Parliament authorised the deployment of German armed forces as
part of a United Nations International Security Assistance Force (ISAF) in Afghanistan which NATO
subsequently assumed command of.
Parallel to the command structure of ISAF, disciplinary and administrative command and control
remained with the troop contributing nations. German troops were deployed as part of ISAF’s
Regional Command (RC) North and primarily took over Provincial Reconstruction Team (PRT)
Kunduz. PRT Kunduz was commanded at the time by a German, Colonel K.
In September 2009 insurgents hijacked two fuel tankers which became immobilised on a sandbank
in the Kunduz River, around seven kilometres from PRT Kunduz’s base. At 1.49 am on 4 September
2009 Colonel K. ordered two United States Air Force airplanes to bomb the immobilised vehicles.
The airstrike destroyed the tankers and killed Mr Hanan’s two sons, Abdul Bayan and Nesarullah,

1. Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party
to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a
panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or
its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question
or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final
on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

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aged approximately 12 and 8 respectively. The total number of victims has never been established.
Various reports indicate that between 14 and 142 people died, mostly civilians.
After initiating a preliminary investigation in the days after the airstrike, the German Federal Public
Prosecutor General opened a criminal investigation in March 2010, examining the actions of Colonel
K. and a Staff Sergeant who had assisted him on the night of the airstrike.
The criminal investigation was discontinued in April 2010 owing to a lack of sufficient grounds for
suspicion that the accused had incurred criminal liability. The Federal Public Prosecutor General
concluded that Colonel K. had had no intent to kill or harm civilians or damage civilian objects to a
degree that was disproportionate to the military benefit of the airstrike. Criminal liability for
offences pursuant to the German Code of Crimes against International Law could therefore be
eliminated. The Federal Prosecutor General also held that all possible offences pursuant to the
German Criminal Code, such as murder, were justified by the lawfulness of the attack under
international law. In October 2010 a redacted version of the discontinuation decision was served on
the applicant’s representative. In February 2011 the Düsseldorf Court of Appeal dismissed a motion
by Mr Hanan to compel the bringing of public charges as inadmissible.
On 19 May 2015 the Federal Constitutional Court refused to admit a constitutional complaint by Mr
Hanan for adjudication. It found that the Prosecutor General’s investigation had been effective, as
defined by its own case-law and that of the European Court of Human Rights. Additional
investigatory measures, such as hearing further witnesses who had been present during the
airstrike, would not have provided any further relevant information as the decision to end the
investigation had mainly been based on the finding that the accused had been convinced, at the
time of ordering the airstrike, that the people in the immediate vicinity of the lorries were armed
insurgents. It also found that although the Court of Appeal had declared the applicant’s motion
inadmissible, it had nevertheless considered the Prosecutor General’s decision in detail. The decision
was served on the applicant’s counsel in July 2015.
The application was lodged with the European Court of Human Rights on 13 January 2016.
Relying on Article 1 (obligation to respect human rights) of the European Convention, Mr Hanan
argues that the facts of which he complains occurred within the jurisdiction of Germany.
Relying on Article 2 (right to life), he complains that the investigation into the airstrike was not
effective. He alleges under Article 13 (right to an effective remedy) that he has had no effective
domestic remedy to challenge the decision to discontinue the investigation.
On 2 September 2016 the German Government was given notice2 of the application, with questions
from the Court.
The Governments of Denmark, France, Norway, Sweden and the United Kingdom, the Human Rights
Centre of the University of Essex, the Open Society Justice Initiative, the Institute of International
Studies of the Università Cattolica del Sacro Cuore di Milano and Rights Watch UK were given leave
to intervene in the procedure before the Court, in accordance with Rule 44 § 3 (a) of the Rules of
Court.
The Chamber to which the case was allocated relinquished jurisdiction in favour of the Grand
Chamber on 27 August 2019.

2 In accordance with Rule 54 of the Rules of Court, a Chamber of seven judges may decide to bring to the attention of a Convention State's
Government that an application against that State is pending before the Court (the so-called "communications procedure"). Further
information about the procedure after a case is communicated to a Government can be found in the Rules of Court.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.