Information Note on the Court’s case-law 260
March 2022
Bjarki H. Diego v. Iceland - 30965/17
Judgment 15.3.2022 [Section III]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Article 6-3-a
Information on nature and cause of accusation
Article 6-3-c
Defence through legal assistance
Trial fairness undermined through failure to inform of charges and provide legal assistance to applicant questioned as a witness, while being already under investigation and suspected: violation
Facts – The applicant, a lawyer, had been a director of the loan division and a member of the group credit committee of Kaupþing Bank, one of three banks that collapsed when the global liquidity crisis hit the Icelandic banking sector in the autumn of 2008. He was indicted and convicted for fraud by abuse of position in one of the post-crisis prosecutions.
Law – Article 6 §§ 1 and 3 (a) and (c)
(a) Whether there was a “criminal charge” – The applicant had been one of eight individuals whose telephones had been tapped, pursuant to warrants, for two months prior to his questioning on 14 May 2010 as a witness in relation to one of the investigations referred to by the Special Prosecutor. Although not being officially declared a suspect for the purposes of that interview, contemporaneous documentation submitted to the Court revealed that the Special Prosecutor had taken the action of tapping the applicant’s telephones, in relation to several investigations pertaining to Kaupþing’s activities - including the ones which had ultimately led to his prosecution-, as a result of a suspicion that the applicant had taken part in decisions concerning allegedly criminal conduct in the matters under investigation. That was sufficient for the Court to conclude that the applicant had at that time been affected by actions taken by the authorities as a result of a suspicion against him, and that therefore a “criminal charge” against him existed for the purposes of Article 6. Consequently, the applicant should have been afforded the protection of the criminal limb of that provision as of 14 May 2010 at the latest, including the specific rights afforded to the defence pursuant to Article 6 § 3.
(b) The requirements of Article 6 § 3 at the investigative stage – Although at the outset of the 14 May 2010 interview, the applicant had been informed of the subject of the investigation, his obligation to testify truthfully and of his right not to incriminate himself, he had not been informed that the charges under investigation had been directed at him among others. He had only been informed of the relevant charges later on. This failure had to be assessed in the light of the more general right to a fair hearing under Article 6 § 1 and had to be addressed in the assessment of the overall fairness of the proceedings.
Furthermore, during that interview there had been a failure to provide the applicant with legal assistance. He had not been notified of his right to be accompanied by legal counsel; and it could not be inferred from the fact that he had not made such a request that he had waived his right to legal counsel during the interview, since the requirements under the Court’s case-law for the waiver of Article 6 fair-trial rights had clearly not been met. That restriction had stemmed simply from the applicant’s classification at that time as a witness rather than a suspect. It had not as such been the result of a purposeful decision to the effect of restricting access for a specific purpose pursuant to legislation allowing for such restrictions in exceptional circumstances. There had thus been no “compelling reasons” for the temporary restriction on his right to legal assistance. In the absence of such reasons, the Court had to apply very strict scrutiny in its assessment of the impact of this failure on the overall fairness of the criminal proceedings against the applicant, taking into account the relevant factors enumerated in its case-law. More specifically, the applicant had not been particularly vulnerable on account of his age or mental capacity and had not been in police custody; he could have therefore freely conferred with legal counsel both before and after his interview. These elements served to decrease the unfairness of the delay in access to legal advice. Although the applicant’s knowledge of the law might have put him at less of a disadvantage than other suspects in a similar situation, it did not deprive him of the defence rights protected by Article 6 § 3 and did not have a significant effect on the assessment of the alleged unfairness of the proceedings.
In its case-law, the Court has sometimes given weight to whether or not the applicant made incriminating statements in an interview during which his or her defence rights were not properly ensured; whether the interview was submitted as evidence before the domestic courts; and whether or not the applicant subsequently had the chance to retract or contest the statements. However, in the particular circumstances of the present case and owing to the factually complex, financial nature of the charges, concerning an area of law where illegality and criminal responsibility were often not clear-cut issues, these elements could not be established so clearly and as a result it could not be readily determined whether or not the applicant’s answers during the course of the interview constituted directly incriminating statements. Notwithstanding, the privilege against self-incrimination was not confined to actual confessions or to remarks which were directly incriminating; for statements to be regarded as self-incriminating it was sufficient for them to have substantially affected the accused’s position. Moreover, and importantly, the prosecution had been tapping the applicant’s telephone for over two months prior to the 14 May 2010 interview in connection with, inter alia, the very investigation which had served as the basis for the applicant’s subsequent prosecution. In the light of the very strict standard of scrutiny applied in these circumstances, the Government had failed to demonstrate convincingly that these investigative measures, viewed as a whole, had not undermined the overall fairness of the proceedings against the applicant, taking account of the nature and scope of the charges levelled against him and the particular situation of his case.
Even though the applicant had challenged before the Supreme Court, his questioning as a witness whilst having already been suspected of criminal offences, that court did not address this particular issue in its judgment. The applicant had not therefore been provided with a possibility of remedying a situation that was contrary to the requirements of the Convention. Consequently, the Court did not have the benefit of an assessment by the domestic courts as to whether and to what extent these particular circumstances of the applicant’s interview had affected the fairness of his trial.
Accordingly, the Government had not discharged the burden to convincingly demonstrate that the overall fairness of the applicant’s trial had not been irretrievably prejudiced by the failure to inform him of the charges against him and by the delay in his access to legal advice.
Conclusion: violation (unanimously)
The Court also found, unanimously, no violation of Article 6 § 1 in respect of the requirement of an independent and impartial tribunal, on the basis of Sigríður Elín Sigfúsdóttir v. Iceland (41382/17, 25 February 2020), that one of the Supreme Court Justice’s financial losses due to Kaupþing’s collapse – these being very minimal - as well as those due to the collapse of another bank, did not suffice to raise doubts as to his objective impartiality in the applicant’s case.
Article 41: The finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage. In this connection the Court also observed that the Current Procedure Act, when certain conditions were fulfilled, allowed the reopening of criminal proceedings that had been terminated by a final judgment given by the Court of Appeal or the Supreme Court.
(See also Sejdovic v. Italy [GC], 56581/00, 1 March 2006, Legal Summary; Simeonovi v. Bulgaria [GC], 21980/04, 12 May 2017, Legal Summary; Beuze v. Belgium ([GC], no. 71409/10, 9 November 2018, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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