THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24945/04
by Johann Sigurdur KRISTJANSSON
and Boas Kristinn BOASSON
against Iceland
The European Court of Human Rights (Third Section), sitting on 10 April 2007 as a Chamber composed of:
MrB.M. Zupančič, President,
MrC. Bîrsan,
MrsE. Fura-Sandström,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Berro-Lefèvre, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 17 June 2004,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Johann Sigurdur Kristjansson and Mr Boas Kristinn Boasson, are both Icelandic nationals and were born in 1960 and 1961, respectively. They were represented before the Court by Mr Fridbjörn Gardarsson, a lawyer practising in Egilsstadir, Iceland.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 30 October 2003 the Eastern Iceland District Court convicted them of unlawful hunting and sentenced them to pay a fine of ISK 50,000 (approximately EUR 600) each and ordered the suspension of their hunting licences for one year and the confiscation, for one year, of their rifles, as well as their prey consisting of 15 mountain grouse.
On 18 December 2003 the Supreme Court refused them leave to appeal, which decision was notified to their lawyer on 9 February 2004.
According to the applicants, under Icelandic law (Chapter 18 of the Code of Criminal Procedure (Act No. 19/1991)), if an appellant has not been sentenced to imprisonment at first instance or if the fine imposed or the value of the goods confiscated by the latter did not exceed ISK 420,000 (at the time of the filing of the application, corresponding approximately to EUR 5,250), an appellant wishing to challenge the first instance ruling has to obtain leave to appeal from the Supreme Court.
COMPLAINT
The applicants complained under Article 2 of Protocol No. 7 about the Supreme Court’s refusal of leave to appeal.
THE LAW
The applicants alleged a violation of Article 2 of Protocol No. 7, which reads:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
In the applicants’ submission, the conditions under Icelandic law for exercising a right to appeal in criminal cases infringed the very essence of the right embodied in Article 2 of Protocol No. 7. The offence of which they had been convicted could not be considered as minor, having regard to the fine, the revocation of their licences and the confiscation measures. In their opinion, the requirement that they had to apply for leave to appeal to the Supreme Court could not be deemed justified in their case. Under the relevant Icelandic law, such leave had to be obtained unless the first instance court had imposed a prison sentence or if the fine imposed or the value of the goods confiscated by the latter exceeded ISK 420,000 (corresponding approximately to EUR 5,250 at the time of the filing of the application). In the applicants’ opinion the possibility to exercise a right of access to a court of appeal was subject to limitations that did not pursue a legitimate aim.
The Court reiterates that the Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law. Furthermore, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so (Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000‑I (extracts)). However, any restrictions contained in domestic legislation on the right to a review mentioned in that provision must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right (see Krombach v. France, no. 29731/96, § 96, ECHR 2001‑II).
Turning to the particular circumstances of the present case, the Court first notes that the applicants do not dispute that the impugned limitations were “prescribed by law”. Moreover, in the view of the Court, the offences of which the applicants were convicted were of “minor” character. This is illustrated by the moderate level of the fines in question (corresponding approximately to EUR 600) and the lenient nature of the other sanctions imposed (suspension of the applicants’ hunting licences and confiscation of their rifles, both for one year, and confiscation of the prey). In light of the foregoing, the Court finds that the matter falls within Article 2 § 2 of Protocol No. 7 and that, accordingly, the exception therein to the right to a review by a higher court applies.
Even assuming that the exception clause in Article 2 § 2 of Protocol No. 7 did not apply, a requirement to apply for leave to appeal does not as such raise an issue of failure of compliance with Article 2 § 1. In this connection, it should be noted that paragraph 19 of the Explanatory Report on Protocol No. 7 states:
“In some states, a person wishing to appeal to a higher tribunal must in certain cases apply for leave to appeal. The right [under Article 2 § 1] to apply to a tribunal ... for leave to appeal is itself to be regarded as a form of review within the meaning of this article.”
In any event, in this case the applicants have adduced no fact or argument which indicates that the Supreme Court’s refusal of leave to appeal failed to pursue a legitimate aim and infringed the very essence of the right of access to a court (see Peterson Sarpsborg AS and Others v. Norway (dec.), no. 25944/94, 27 November 1996).
It follows that the application must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley NaismithBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy