Communicated on 30 August 2019
SECOND SECTION
Applications nos. 14175/16 and 22729/17
Jóhannes BALDURSSON against Iceland
Applications nos. 32167/16 and 22720/17
Birkir KRISTINSSON against Iceland
SUBJECT MATTER OF THE CASES
The applications concern the applicants’ indictment and conviction for financial crimes, following the financial crisis of 2008.
The first applicant, Mr Jóhannes Baldursson, was an executive at Glitnir bank hf. He was convicted of fraud by abuse of position (umboðssvik) and of market manipulation (markaðsmisnotkun) by a District Court judgment of 23 June 2014. His conviction was upheld by the Supreme Court by a judgment of 3 December 2015, and he was sentenced to three years’ imprisonment. He alleges violations of his right to a fair trial under Article 6 of the Convention. Firstly, he claims that the Supreme Court’s judgment violated his right to a fair trial by assessing his guilt on the basis of oral testimony which it did not hear directly. Secondly, he claims that both the District Court and the Supreme Court failed to sufficiently reason their findings. Thirdly, in a subsequent application no. 22729/17, he claims that his right to be heard by an independent and impartial tribunal was violated due to the alleged financial interests of two out of the five Supreme Court Justices sitting on the panel in his case, namely M.S. and Ó.B.Þ., in Glitnir bank hf.
The second applicant, Mr Birkir Kristinsson, was an employee of Glitnir bank hf. and the owner of the company BK-44 ehf. He was convicted of market manipulation, aiding and abetting fraud by abuse of position and aggravated offences against the Act on Annual Accounts by the same judgments as the first applicant, and sentenced to four years’ imprisonment. During the investigation, the applicant was interrogated by police on 1 December 2011 as a suspect in the case. He was interrogated by police a second time on 21 December 2011, this time as a witness in the same case. On 18 June 2012 he was interrogated a third time, this time again as a suspect in the case. Before the national courts, the applicant submitted that this manner of interrogation constituted the closing and reopening of the case against him, and demanded that the case be dismissed. In rejecting the applicant’s claim for dismissal, the District Court found that conditions for reopening the case against the applicant had been met. The Supreme Court, however, held that it could not be sufficiently established that the case against him had indeed been closed before the second interrogation on 21 December 2011, but disregarded his testimony given during that interrogation.
The second applicant alleges violations of his rights under Article 6 and under Article 4 of Protocol No. 7 to the Convention. Firstly, he claims that the manner of his interrogation; first as a suspect, then as a witness, then again as a suspect, violated his right not to be tried or punished twice. Secondly, he claims that this manner of conducting the investigation into him violated his right to a fair trial. Thirdly, he claims that his trial was not conducted within a reasonable time. Fourthly, in a subsequent application no. 22720/170, he claims that his right to be heard by an independent and impartial tribunal was violated, due to the alleged financial interests of three out of the five Supreme Court Justices sitting on the panel in his case, namely G.B., M.S. and Ó.B.Þ., in one or more of the three collapsed Icelandic banks: Landsbanki, Glitnir and Kaupþing.
QUESTIONS TO THE PARTIES
1. In respect of the complaints regarding the independence and impartiality of the Supreme Court panel, have the applicants complied with the applicable six-month time-limit in accordance with Article 35 § 1 of the Convention? In light of the nature of these complaints, on which date did the time-limit commence for the applicants to lodge a complaint before the Court?
2. In respect of the complaints regarding the independence and impartiality of the Supreme Court panel, have the applicants 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 applicants’ complaints related to the alleged impartiality of Justices G.B., M.S and Ó.B.Þ.? If so, at what time did the remedy become available for the applicants? 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 of serving judges in companies from the Committee on Judicial Functions (nefnd um dómarastörf)?
3. Has there been a violation of the applicants’ 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)? In particular, did three of the five Supreme Court Justices, which decided the criminal case against the applicants on appeal, namely G.B., M.S. and Ó.B.Þ., 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 applicants’ 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 3,000,000 ISK in a company, listed on the stock exchange, or to hold more than a 5% share in other companies?
4. Did the first applicant’s conviction by the Supreme Court constitute a breach of his right to a fair trial under Article 6 § 1 of the Convention? In particular, did the Supreme Court assess the first applicant’s guilt, in whole or in part, on the basis of testimony provided by the accused and witnesses before the District Court without the Supreme Court having itself directly heard the accused or the witnesses in question (see inter alia Sigurþór Arnarsson v. Iceland, no. 44671/98, 15 July 2003 and Botten v. Norway, 19 February 1996, Reports of Judgments and Decisions 1996‑I)? Furthermore, did the national courts adequately reason their conclusions in the applicant’s case (see inter alia Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017 and García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I)?
5. On account of the manner of interrogation of the second applicant, has he been liable to be tried twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7 (see inter alia Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009)?
If so, did the proceedings fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7?
6. Did the second applicant’s conviction by the Supreme Court constitute a breach of his right to a fair trial under Article 6 § 1 of the Convention? In particular, did the manner of interrogation of the second applicant result in a violation of his right to a fair trial?
7. In respect of the second applicant, was the length of the criminal proceedings in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see inter alia Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II)?
Full & Egal Universal Law Academy