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Tribunal 'established by law'

The EctHR has held that the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament”: The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case: Fatullayev v Azerbaijan [2010] ECHR 623.

Further guidance on the meaning of this term may be had from the judgment of the Court of Appeal in the case of Coppard v Customs and Excise [2003] EWCA Civ 511, where Sedley LJ, giving the judgment of the Court of Appeal said,
‘There is no decision of either the Court or the Commission which deals comprehensively with the content of the expression "established by law". But in Zand v Austria (1978) 15 DR 70 the Commission, in debating the status of the Austrian labour courts, which had been set up only under elective ministerial powers, said (at para. 69) that the object and purpose of the provision was: "That the judicial organisation in a democratic society must not depend on the discretion of the Executive, but that it should be regulated by law emanating from Parliament."
‘The Court has made it clear (see Sunday Times v United Kingdom (1979) 2 EHRR 245 that law declared by the courts ranks for these purposes with that made by Parliament. We do not consider, however, that this passage in Zand (which s.2 of the Human Rights Act requires us to take into account) answers the question. First of all, it is addressed to the issue then before the Commission, which concerned the use of ministerial powers to create courts – hence the focus on the executive. Secondly, it seems to us that independence from the executive is what the word "independent" in Article 6(1) is principally concerned with. Thirdly, and perhaps most importantly, it is plain that much more than this is involved in the concept of a tribunal established by law. Among other things, the purpose (especially when one remembers the period of European history of which the Convention was intended to mark a definitive end) is to ensure that justice is administered by, and only by, the prescribed exercise of the judicial power of the state, not by ad hoc "people's courts" and the like. Such a principle must be fundamental to any concept of the rule of law. Implicit in it is that the composition and authority of a court must not be arbitrary.’

 

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