Communicated on 6 February 2020
Published on 24 February 2020
SECOND SECTION
Application no. 30965/17
Bjarki H DIEGO
against Iceland
lodged on 5 April 2017
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s indictment and conviction for financial crimes, following the financial crisis of 2008.
The applicant was the director of the loan division and member of the group credit committee of Kaupthing Bank hf. prior to the bank’s collapse. By letter of 1 October 2009, the Icelandic Financial Supervisory Authority reported the applicant and other persons related to the bank to the Special Prosecutor for suspected violations of the Act on Securities Transactions No. 108/2007. The latter initiated an investigation into the allegations. On several occasions dating from March until May 2010, the Special Prosecutor obtained rulings from the District Court of Vesturland to record the applicant’s telephone conversations on suspicion of his involvement in the alleged criminal activity under investigation. On 14 May 2010, the applicant was questioned as a witness in the case, concerning Kaupthing Bank’s dealings with the Holt Investment Group. On 12 May 2011, the applicant was questioned again, but this time as a suspect in the case. On 15 March 2013, the applicant was indicted, along with eight others, on seven counts of fraud by abuse of position (umboðssvik), three of which concerned the Holt Investment Group transactions. By judgment of the District Court of Reykjavík of 26 June 2015, the applicant was convicted on six counts of fraud by abuse of position, but acquitted on one count, namely concerning the Holt Investment Group. He was sentenced to two and a half years’ imprisonment. At the applicant’s request, the prosecution appealed that judgment to the Supreme Court of Iceland. By judgment of 6 October 2016 the Supreme Court partly overturned the District Court’s judgment and convicted the applicant on all seven counts of fraud by abuse of position. The Supreme Court upheld the sentence imposed by the District Court.
Firstly, the applicant alleges that he gave testimony to the investigators as a witness in the case when he was already considered a suspect in the case, violating his right to a fair trial and to legal assistance under Article 6 §§ 1, 3 (a) and 3 (c) of the Convention.
Secondly, the applicant submits that his right to be heard by an independent and impartial tribunal was violated due to the alleged financial interests of a Supreme Court Justice sitting on the panel in his cases, namely V.M.M.
QUESTIONS TO THE PARTIES
1. As concerns the applicant’s first complaint, did the applicant exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of this complaint?
Did the applicant’s conviction by the Supreme Court constitute a breach of his right to a fair trial? In particular, did the applicant’s interrogation as a witness in the case result in a violation of his right to a fair trial and to legal assistance as guaranteed by Article 6 §§ 1 and 3 (c) of the Convention (see, inter alia, Beuze v. Belgium [GC], no. 71409/10, §§ 120-150, 9 November 2018 and Kalēja v. Latvia, no. 22059/08, §§ 59-70, 5 October 2017)? In this regard, at what point was there a “criminal charge” against the applicant (see, inter alia, Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-111, 12 May 2017 and Kalēja v. Latvia, cited above, §§ 36-41)?
2. In respect of the complaints regarding the independence and impartiality of the Supreme Court panel, has the applicant complied with the six-month time-limit in accordance with Article 35 § 1 of the Convention? In the light of the nature of these complaints, on which date did the time-limit for the applicant to lodge a complaint before the Court commence?
In respect of the complaints regarding the independence and impartiality of the Supreme Court panel, has the applicant exhausted available domestic remedies, as required by Article 35 § 1 of the Convention? In particular, what was the available domestic remedy with respect to the applicant’s complaints related to the alleged impartiality of Justice V.M.M.? At what time did the remedy become available to the applicant? What relevance in this respect should be ascribed to the procedure which was then in force under Article 9 of the Rules No. 463/2000, on Additional Functions of District Court and Supreme Court Judges and their Ownership in Companies and Undertakings, for requesting information on the ownership in companies of serving judges from the Committee on Judicial Functions (nefnd um dómarastörf)?
Has there been a violation of the applicant’s right to be heard by an independent and impartial tribunal under Article 6 § 1 of the Convention (see, inter alia, Pétur Þór Sigurðsson v. Iceland, no. 39731/98, ECHR 2003‑IV and Sigurður Einarsson and Others v. Iceland, no. 39757/15, 4 June 2019)? In particular, did one of the five Supreme Court Justices who decided the criminal case against the applicant on appeal, namely V.M.M., have financial interests in one or more of the three collapsed Icelandic banks, Landsbanki, Glitnir and Kaupthing, when the events occurred which formed the basis for the applicant’s convictions? If so, what was the relevance for the assessment of their alleged impartiality of the condition in Article 7 § 3 of Rules No. 463/2000 (see above), then in force, that a serving judge was required to seek permission from the Committee on Judicial Functions to own more than ISK 3,000,000 in a company listed on the stock exchange, or to hold more than a 5% share in other companies?
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