THIRD SECTION
DECISION
Application no. 24493/17
Bjork THORARINSDOTTIR
against Iceland
The European Court of Human Rights (Third Section), sitting on 31 May 2022 as a Committee composed of:
Georgios A. Serghides, President,
Anja Seibert-Fohr,
Peeter Roosma, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 24493/17) against Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 March 2017 by an Icelandic national, Ms Bjork Thorarinsdottir, who was born in 1964 and lives in Hafnarfjörður (“the applicant”) who was represented by Ms H.M. Óttarsdóttir, a lawyer practising in Reykjavik;
the decision to give notice of the complaints under Articles 6 and 7, that the Supreme Court mixed up her roles as director of Kaupþing Bank’s corporate banking division and as member of the group credit committee, and that the provisions relevant to her prosecution lacked clarity, to the Icelandic Government (“the Government”), represented by their Agent, Mr Einar Karl Hallvarðsson, State Attorney General, to adjourn her complaint under Article 6 that she was not heard by an independent and impartial tribunal, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
The criminal proceedings1. The application concerns the applicant’s conviction for financial crimes. She was the director of the domestic corporate banking division of Kaupþing Bank hf. in Iceland, as well as sitting on the Group Credit Committee. She was indicted on 15 March 2013 and charged with fraud by abuse of position (umboðssvik) on five counts, which concerned loans granted by the bank to two companies prior to the financial crisis in 2008. Four out of five counts were dismissed by the District Court of Reykjavík by ruling of 13 June 2013.
2. The remaining charge concerned breach of trust under article 249 of the Penal Code for having abused her position to grant a loan to company X. The District Court found it established that at a meeting on 18 September 2018 the three members of the Group Credit Committee (which included the applicant) decided to refer X’s loan application to the bank’s Board Credit Committee, which on 24 September 2008 granted X a loan in the amount of 2,570 Icelandic kroner (ISK) to purchase shares in the bank. In the meantime, on 18 September 2008, after the Group Credit Committee’s meeting, the applicant had received an email from an employee stating: “transaction of X now mature tomorrow, can you give approval for disbursing this despite the fact that the entry has not yet been made by the [Board Credit Committee]”, to which on 19 September 2008 the applicant replied “approved for my part”. By judgment of 26 June 2015, the District Court acquitted the applicant of this charge, finding that her approval had in fact not been necessary to pay out the loan in question.
3. The judgment was appealed against to the Supreme Court, which on 6 October 2016, sitting with Justice I.E., M.S., Ó.B.Þ. and V.M.M., overturned the District Court’s judgment and convicted the applicant of a misconceived attempt to commit fraud by abuse of position, finding that the applicant had approved the payment of the loan, believing her approval to be necessary, and contrary to the bank’s credit rules. Accordingly, she was convicted of attempt under articles 249 and 22 of the Penal Code. No punishment was imposed on her.
New information concerning the Supreme Court justices4. On 5 December 2016 confidential information regarding financial interests of the Justices of the Supreme Court came to light in the media (see Sigríður Elín Sigfúsdóttir v. Iceland, no. 41382/17, §§ 13-14, 25 February 2020). A series of news reports on television, in newspapers and on the Internet disclosed that some of them had owned shares in the Icelandic banks before their crash in 2008. The reports stated that the shareholdings had, at least in some cases, not been disclosed to the Committee on Judicial Functions (nefnd um dómarastörf). As a result of the news coverage, discussions arose about possible conflicts of interest of the judges in respect of their investments in Icelandic stocks and funds and whether the judges in question had adjudicated cases concerning the events leading up to the collapse of the banks, despite such possible conflicts of interest. The applicant submitted that this was when she had first learned about the shareholdings of the judges who had adjudicated in her case, namely I.E., M.S., Ó.B.Þ. and V.M.M.
5. It transpired from the news coverage and information later provided by the Committee on Judicial Functions that:
6. Justice I.E. had 976 shares in Kaupþing bank, which she sold in May and September 2008.
7. Justice M.S. did not have any shares in Kaupþing bank.
8. Justice Ó.B.Þ. had 140 shares in Kaupþing bank which he sold on 1 June 2004.
9. In October 2008 Justice V.M.M. had owned 36 shares in Kaupþing bank with a nominal value of ISK 360. Their total value was ISK 23,544 (thirty‑six shares with a closing price of ISK 654 per share on 3 October 2008) or approximately 140 Euros (EUR) at the time of the bank’s collapse.
RELEVANT LEGAL FRAMEWORK
10. The relevant provision of the Icelandic Penal Code No. 19/1940 (Almenn hegningarlög) at the material time read as follows:
Article 22
“Any person who has resolved to commit an act punishable under this act and has clearly demonstrated this resolve by an act aimed at commission or designed as such is, if the offence has not been brought to completion, guilty of an attempted offence.
For an attempted offence, a more lenient punishment may be imposed than for a completed offence. This shall, in particular, be done in cases where the attempt indicates that the offender is less dangerous and his/her resolution not as firm as that of persons who bring such offences to completion.
If in terms of the interests targeted or of the act itself, the attempt could not have resulted in the offence being brought to completion, it may be decided that punishment is to be waived.”
Article 249
“If a person who has been put in a position to do something that will bind another person in an obligation, or who has control of funds on behalf of other persons, abuses this position, the person shall be punished by up to 2 years’ imprisonment, and in the case of a very serious offence the punishment may be increased to up to 6 years’ imprisonment.”
11. The relevant provisions of the Criminal Procedures Act (lög um meðferð sakamála) read as follows:
Section 6
“(1) A judge, including a lay judge, shall be disqualified from sitting as judge in a case where:
...
g. other circumstances or conditions may justifiably raise questions about his or her impartiality.
...”
12. The relevant sections of the Judiciary Act and the Rules on Additional Functions of District Court and Supreme Court Justices and their Ownership in Companies and Enterprises, as in force at the material time, have been set out in detail in Sigríður Elín Sigfúsdóttir v. Iceland (cited above, §§ 25-27).
THE COURT’S ASSESSMENT
Alleged violation of Article 6 § 1 of the Convention13. The applicant complained that the participation of Justices I.E., M.S., Ó.B.Þ. and V.M.M. in her case constituted a violation of her right to a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention,
14. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII; Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009; and Morice v. France [GC], no. 29369/10, § 73, ECHR 2015).
15. In Sigríður Elín Sigfúsdóttir, the Court held that in order for a judge’s impartiality to be called into question in such a context, the financial interests of the judge concerned must be directly related to the subject matter of the dispute at the domestic level (see Sigríður Elín Sigfúsdóttir, cited above, § 53).
16. Accordingly, only those Justices who suffered financial losses resulting from the collapse of Kaupþing bank can be considered to give the applicant an objectively justified fear of a lack of impartiality in the present case. That excludes Justices I.E., M.S., and Ó.B.Þ., since neither of those had shares in Kaupþing bank when it collapsed (see paragraphs 6, 7 and 8 above).
17. Turning to Justice V.M.M.’s holdings in Kaupþing bank at the time of its collapse, the Court notes that their value, and consequently his loss due to Kaupþing’s collapse, was approximately EUR 140 at the time (see paragraph 9 above). This loss is minimal and far removed from the ISK 3,000,000 threshold triggering the authorisation by the Committee on Judicial Functions (compare Sigríður Elín Sigfúsdóttir, cited above, §§ 54-55). The Court therefore also finds that Justice V.M.M.’s financial interests in Kaupþing could not lead to the applicant reasonably calling into question her lack of impartiality when deciding her case.
18. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Alleged violation of Articles 6 and 7 of the Convention19. The applicant complained under Articles 6 and 7 that the Supreme Court mixed up her roles as director of Kaupþing Bank’s corporate banking division and as member of the group credit committee, and that the provisions relevant to her prosecution lacked clarity.
20. The Government disagreed.
21. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
22. Consequently, this part of the application must also be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 June 2022.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President