Information Note on the Court’s case-law 229
May 2019
Gestur Jónsson and Ragnar Halldór Hall v. Iceland (referral) - 68271/14 and 68273/14
Judgment 30.10.2018 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Alleged shortcomings in review of fine imposed in absentia on defence counsel by trial court: case referred to the Grand Chamber
Article 7
Article 7-1
Nulla poena sine lege
Nullum crimen sine lege
Alleged unforeseeability of fine imposed by trial court on “defence counsel” and its amount: case referred to the Grand Chamber
The applicants are lawyers. During a criminal trial in which they were defending the accused (and with the latter’s consent), the applicants requested that their appointment as defence counsel be revoked, explaining that they wished through this gesture to complain about the conditions in which the proceedings were being conducted. However, the court refused. At a hearing in which the accused, defended by a new lawyer, were sentenced, the applicants did not appear. The court then fined the applicants in absentia – and without informing them that it was considering such a measure – approximately EUR 6,200 each for contempt of court and for causing unnecessary delays in the proceedings.
On an appeal by the applicants, the Supreme Court acknowledged that the district court had not granted them a fair hearing. After reviewing the merits, however, it upheld the fines that had been imposed.
Under Article 6 § 1 of the Convention, the applicants criticise the Supreme Court for ruling in their case without calling any witnesses in their favour. Under Article 7, they allege, firstly, that the contested penalty was based on an overly extensive interpretation of the law with regard to the concept of “defence counsel”; secondly, they complain that the law did not establish an upper limit for the amount that could be imposed in fines.
In a judgment of 30 October 2018 (See Information Note 222), a Chamber of the Court found, unanimously, that there had been:
– no violation of Article 6 § 1, in that the Supreme Court had provided the applicants with an opportunity for appeal proceedings, including a hearing, before a body with full jurisdiction, thus enabling them to obtain fresh factual and legal determination of the merits of the charges against them; in that context, it had been for the applicants themselves to request that any defence witnesses be summoned, without expecting the Supreme Court to summon them ex proprio motu;
– no violation of Article 7: the fact that there had been no maximum amount for the fine was not in itself contrary to the Convention, which did not outlaw gradual clarification of the law on the basis of the wording of the provision being applied, so long as the essence of the offence was not distorted; in referring to “defence counsel”, the wording in question did not exclude a lawyer who had been replaced, had resigned or been relieved of his or her duties; and it had not been unreasonable for the Supreme Court to consider that, in comparison to previous cases, the present case had specific aspects which justified increased severity.
On 6 May 2019 the case was referred to the Grand Chamber at the applicants’ request.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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