AS TO THE ADMISSIBILITY OF
Application No. 12170/86
by Jon KRISTINSSON
against Iceland
The European Commission of Human Rights sitting in private
on 13 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 April 1986
by Jon Kristinsson against Iceland and registered on 20 May 1986 under
file N° 12170/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 6 February 1987 and the observations in reply submitted
by the applicant on 16 March 1987 as well as the submissions of the
parties at the hearing held on 13 October 1987;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is an Icelandic citizen, born in 1916. He is a
superintendent and resides at Akureyri, Iceland. Before the Commission
he is represented by Mr. Eirikur Tomasson, a lawyer practising in
Reykjavik, Iceland.
The particular facts of the case
On 20 June 1984 two police officers engaged in monitoring
traffic speed by radar in the vicinity of Akureyri concluded that the
applicant had driven his vehicle at a speed of 68 km/h in a zone where
the official speed limit was 50 km/h. The applicant did not dispute
the result of the radar check, although he considered the measurements
improper, since they were conducted at the foot of a steep hill.
On 26 June 1984 two police officers again stopped the
applicant in his car when they concluded that he had not observed a
stop sign at an intersection in Akureyri. The applicant protested
that he had in fact brought his vehicle to a halt on this occasion.
In two letters from the chief of police of Akureyri, dated 10
and 12 July 1984, the applicant was offered the chance of settling
both of the above cases by paying a fine determined by the chief of
police for the alleged breaches of the Traffic Act. The letters stated
that no further action would be taken by the authorities if payment
were received within a specified period. Both letters were signed by
Mr. SJ, acting as the deputy of the chief of police of Akureyri.
The applicant, however, did not accept this offer to settle
the alleged breaches of the Traffic Act, and was therefore summoned
before the Akureyri District Criminal Court, where he appeared on
30 August 1984. The judge in charge was Mr. SJ, the same person who
had earlier dealt with the applicant's case as the deputy of the chief
of police, but now representing the town magistrate of Akureyri. The
applicant declined to settle the cases in court without being formally
indicted. He did not contradict the radar speed measurement. On the
other hand, he claimed that he did stop at the stop sign.
Following this court hearing, the police officers who had
brought the complaints against the applicant were called to appear in
court to give testimony. The judge in charge was again Mr. SJ.
At the conclusion of the preliminary inquiry the case documents were
sent to the public prosecutor, who subsequently issued an indictment
of 23 November 1984 against the applicant for his alleged violations
of the Traffic Act, i.e. (1) exceeding the speed limit, and (2)
failing to observe a stop sign.
Mr. SJ, representing the town magistrate of Akureyri, heard
the case on 4 and 10 December 1984 and pronounced judgment in the case
on 27 December 1984. The applicant was found guilty on both counts and
ordered to pay a fine of 3,000 Icelandic crowns to the Icelandic State
Treasury as well as all costs.
The applicant refused to accept this sentence and appealed
against it to the Icelandic Supreme Court. Before the Supreme Court
the applicant's primary claim was that the judgment be set aside and
the case sent back to the District Criminal Court for a retrial. The
applicant argued that the inquiry in the District Criminal Court had
been quite inadequate, and that the case had not been heard by an
impartial judge since the procedure whereby the same official was
involved in a case both as chief of police (deputy chief of police)
and as judge (deputy judge) conflicted with the principles stated in
Articles 2 and 61 of the Icelandic Constitution and Article 6 of the
European Convention on Human Rights.
On 25 November 1985 the Supreme Court pronounced its judgment
by which the applicant was acquitted of the charge of non-observance
of the stop sign. The ruling of the District Criminal Court as regards
the charge of exceeding the speed limit was, however, upheld and the
applicant was sentenced to pay 1,500 Icelandic crowns. He was also
ordered to pay all costs of the appeal proceedings. Regarding the
applicant's claim concerning the impartiality of the judge of the
District Criminal Court the Supreme Court stated:
"Under the Icelandic court system, judicial powers in
district courts outside Reykjavik are vested in town and
county magistrates who serve collaterally as chiefs of
police. The criminal court decision cannot be set aside
on the grounds that the deputy town magistrate of
Akureyri tried the case in question. Furthermore,
no specific facts have been established which would
disqualify the town magistrate or his deputy."
Relevant domestic law and practice
According to Section 59 of the Icelandic Constitution the
judicial system shall be regulated by law. Act no. 74 of
27 April 1972 on District Judicial Organisation, Police and Customs
Administration regulates the judicial system.
The Act describes in its Sections 1 - 6 the judicial
organisation as well as the police and customs administration in
Reykjavik. Judicial duties are distributed among three offices with
judicial authority. The sections describe the type of cases dealt
with by each office, the offices of the chief of police and the
offices of the director of customs.
Section 7 of the Act provides that outside Reykjavik the type
of cases enumerated in Sections 2 - 6 come under the duties of the
offices of town and county magistrates, unless otherwise provided by
law.
Section 7 furthermore provides that the Minister of Justice
may decide that district court judges shall serve with the offices of
some particular town and county magistrates outside Reykjavik. These
offices include Akureyri.
Section 15 of the Act provides that as many deputies as the
Minister of Justice considers necessary shall serve with the above
offices. The deputies shall fulfil certain conditions prescribed by
law.
According to sub-section 2 of Section 15 the Minister of
Justice may grant to the deputies appointed according to sub-section 1,
and who fulfil the conditions prescribed by law for permanent engagement
as judges, a special commission for performing independently and on
their own responsibility the judicial functions entrusted to them.
Act no. 85 of 23 June 1936 concerns the district court
procedure and includes provisions concerning judges.
Section 29 provides that judicial functions in civil cases are
performed by county magistates in the counties, town magistrates in
the townships, specially designated district court judges in counties
and townships, city magistrates and criminal court judges in Reykjavik,
and the chief of police at Keflavik Airport.
Section 33 concerns the judges' deputies. According to
sub-section 4 the Minister of Justice can authorise deputies of a
district court judge to perform on the judge's responsibility, in his
absence or owing to his workload, all judicial functions. The
deputies shall fulfil the same conditions as the judges themselves,
except as regards age and seniority.
Chapter 2 of the Code of Criminal Procedure of 21 August
1974 contains provisions concerning district court judges.
Section 4 of the Code provides that county magistrates outside
townships, town magistrates in townships outside Reykjavik, other
judges appointed to serve within these offices, and criminal court
judges in Reykjavik, conduct the investigation of criminal cases in
court, hear them, and pass judgment. Section 15 of the Code provides
that a judge can have his authorised deputy conduct the investigation
of criminal cases in court and pass judgments if the deputy fulfils
the same conditions as set out in Section 33 of Act no. 85 of 23 June
1986 mentioned above.
Chapter 5 of the Code of Criminal Procedure includes
provisions concerning police officers and the initial police
investigation. Section 32 concerns chiefs of police and provides
that county magistrates are chiefs of police outside townships, town
magistrates in townships outside Reykjavik, and specially appointed
chiefs of police where they have been designated. This last provision
refers to the Keflavik Airport jurisdiction.
Chapter 14 of the Code of Criminal Procedure is entitled
"Juvenile cases, fines set by chiefs of police and police officers,
settlements in court, and indictments". This chapter concerns the
treatment of various minor offences.
Section 112 sub-section 2 provides that if a chief of police
receives information concerning a traffic offence or other types
of offences, and he considers that the sanction would not exceed a
fine of 12,000 Icelandic crowns he can make an offer in writing to the
accused within one month of receiving the information whereby the
matter can be settled against the payment of a suitable fine if the
accused accepts this by his signature. If the accused does not accept
the offer, the chief of police shall refer the matter to a judge.
According to Section 112 sub-section 1, a judge can settle a
criminal case without involving the prosecutor, if an offence is
conclusively proven and it is considered that the penalty would not
exceed a fine if the case was adjudged. The judge can then determine
a suitable fine, if the accused accepts this decision by his signature
in the record.
If the accused does not accept that the case be settled in
this way, the judge refers the case to the public prosecutor, who then
may either decide to drop the charge or issue an indictment (cf.
Section 115). The public prosecutor sends an indictment to the judge,
who then proceeds with the case in accordance with the provisions of
the Code of Criminal Procedure.
When judgment is given the parties, i.e. the public prosecutor
and the defendant, can appeal the case to the Supreme Court of
Iceland, if either of them or both do not wish to abide by the
judgment of the District Court. The Supreme Court then reviews the
case, and decides on issues of fact as well as sanctions. The judgment
of the Supreme Court is final.
COMPLAINTS
The applicant submits that according to the Supreme Court
judgment there seems to be no provision in Icelandic law to prevent
the same person from first acting as chief of police and subsequently
as judge in the same case. He complains that in the criminal case
brought against him the same official performed both these functions.
Accordingly, the applicant maintains that he was not heard in the
District Criminal Court by an impartial tribunal. He invokes Article 6
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 April 1986 and registered
on 20 May 1986.
On 13 October 1986 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit written observations on the admissibility and merits.
Having been granted an extension of the time-limit the
Government submitted their observations on 6 February 1987. The
applicant's observations in reply were submitted on 16 March 1987.
On 13 July 1987 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
On 18 September 1987 the President of the Commission, acting
in accordance with Rule 7 of the Addendum to the Commission's Rules of
Procedure, decided that legal aid should be granted to the applicant
for the representation of his case before the Commission.
At the hearing, which was held on 13 October 1987, the parties
were represented as follows:
The Government
Mr. Thorsteinn Geirsson, secretary general of the Ministry of
Justice, Agent.
Mr. Gunnlaugur Claessen, solicitor general.
The applicant
Mr. Eirikur Tomasson, lawyer, applicant's representative.
SUBMISSIONS OF THE PARTIES
The Government
The Icelandic system where investigative and judicial powers
are combined has a historical and geographical origin and it should
be emphasised that the conditions prevailing in Iceland are
significantly different from those of other member States of the
Council of Europe.
The combination of judicial and administrative authority is
based on a legal tradition of long standing. The institution of
"syslumenn" (county magistrates) dates back to the year 1281. Ever
since the beginning they have exercised executive and administrative
powers within their areas or counties. For almost 300 years they have
also exercised judicial powers. As regards town magistrates they have
exercised the same powers after towns were founded in Iceland. This
applies to the town magistrate of Akureyri as well as to other town
magistrates in the country.
The small population of Iceland, now and over the centuries,
is also an explanation to the particular development of the Icelandic
judicial system. Today, Icelanders number about 240,000 which is
three times as many as at the turn of the century. Furthermore, the
geographical conditions are different. Iceland is divided by
mountains and large rivers and the climate is harsh for more than half
of the year. All these facts have rendered communications difficult
and for a long time many local communities have had to live in
isolation. In addition, there were almost no roads or bridges in
Iceland at the turn of the century, and communications have only been
significantly improved during the past few decades. Thus, the
isolation of many rural communities has just recently been broken.
All these particular Icelandic conditions, Iceland's history,
its geography and the density of its population, form the background
for the legal system. In spite of this, attempts have been made to
separate judicial and administrative authority in Iceland. An
evolution in this direction has been going on for quite a considerable
period of time.
It started in Reykjavik, where almost 40% of the population
live today, and the separation of judicial and administrative
authority in Reykjavik is now complete. Outside of Reykjavik this
evolution has progressed at a much slower pace. Nevertheless,
important steps in this direction have been taken.
Firstly, Section 7 of Act No. 74 of 1972 now provides for the
appointment of independent and impartial judges with the offices of
many county and town magistrates in the more populous areas. These
judges have no police authority. They may be charged with
administrative duties, but this is not done in practice.
Secondly, the system of the State Criminal Investigation
Police Agency was changed in 1976 and an independent Agency was
established operating in Reykjavik and other municipalities in the
south-western part of the country where about two-thirds of the
population live. This step in the direction of separating
investigative and judicial authority was not taken in full as the
State Investigation Police Agency does not serve other parts of the
country except at the request of the local authorities.
The explanation why this evolution has progressed so slowly
outside the capital is varied. Among the factors is that Icelandic
society has been undergoing drastic changes during the past few
decades. People have moved in large numbers from rural areas to the
urban south-west. The rural communities differ in character and many
of the communities, which are large in area, have a low population
density.
With regard to the continuation of this evolution a new
Government came to power in Iceland on 8 July 1987. The programme of
the new coalition Government states that they will initiate an overall
revision of the judicial system and carry out a separation of judicial
and administrative duties. A committee is now preparing a Bill with
the aim of separating judicial and executive functions and thereby
securing the independence of the courts.
Turning to the applicant's complaint in the present case the
Government maintain that it is incompatible with the provisions of
the Convention within the meaning of Article 27 para. 2 since the
applicant cannot be considered to be a victim of a violation of the
rights set forth in the Convention within the meaning of Article 25.
Viewing separately the two alleged offences dealt with by the
Supreme Court of Iceland, the Court acquitted the applicant of the
charge of having violated the stop sign as the offence was not
regarded as proved. As the applicant accordingly sought and gained
redress under the national system available to him, he cannot in
accordance with the established case-law of the Commission claim to
be a victim of any possible violation of the Convention.
Regarding the other offence, the offence of speeding, the
applicant was never a victim within the meaning of Article 25. He
confessed to that offence and was offered to have the matter settled
against the payment of a fine, which is a routine procedure. Before
the Supreme Court he did not claim acquittal but only a reduction in
the penalty and this was granted by the Supreme Court. In these
circumstances the Government are of the opinion that the complaint is
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2.
In the alternative the applicant's complaint should be
regarded as being manifestly ill-founded within the meaning of
Article 27 para. 2 of the Convention.
When looking at the present case in the light of the judgment
of the European Court of Human Rights in the case of De Cubber (Eur.
Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86)
there are obviously significant parallels, but also significant
differences. In particular the applicant in the present case had
never been convicted previously and the authorities had not taken any
sort of action against him, at least not for 25 years. Furthermore,
what actually happened were two things: firstly, police reports on the
alleged offences were prepared; secondly, letters were sent to the
applicant on printed forms with the appropriate entries where he was
offered to have his case settled against the payment of a fine.
By these routine letters of the deputy of the chief of police
the applicant was offered to pay a fine of 950 Icelandic crowns for the
speeding offence and 770 crowns for the non-observance of the stop sign.
In doing this, the deputy of the chief of police followed exactly the
guidelines issued by the public prosecutor to the Icelandic chiefs of
police concerning the handling of minor offences. The treatment of
the applicant's case was in no way different from the treatment any
other citizen would have received under the same circumstances. These
letters were disregarded by the applicant and he was never called upon
to appear before the chief of police or his deputy. The case was not
dealt with any further by the police.
Bearing this in mind, it is evident that the procedure
followed by the police was a matter of routine. No aspect of the
procedure could have influenced the attitude of the chief of police or
his deputy when the case was later brought up in court. Accordingly,
the case of Mr. De Cubber and this case are fundamentally different.
Furthermore, the applicant's case was never referred to the public
prosecutor at this stage.
The same deputy who signed the letters of the chief of police
received the case for treatment in court. However, there is no
indication at all of partiality in his treatment of the case, and this
applies to all stages of the examinations of the court, both before
and after the issuance of the indictment. The conclusion is therefore
that the applicant received fair treatment by an impartial tribunal in
conformity with Article 6 of the Convention.
The applicant
The main facts of this case are not in dispute. The applicant
was charged with two alleged violations of the Traffic Act and he was
offered to settle both of the charges by paying a fine determined by
the chief of police of Akureyri. Both of these charges were signed by
Mr. SJ, a deputy of the chief of police. The applicant refused to
settle the case and was therefore summoned before the Criminal
District Court of Akureyri where he strongly protested against the
allegation of having failed to observe the stop sign. Furthermore,
and contrary to what the Government have submitted, he did not
confess to the charge of exceeding the speed limit but he chose
not to contradict the radar speed measurement made by the police.
After the case had been sent to the public prosecutor of
Iceland an indictment was issued against the applicant who was
subsequently found guilty of both charges by the Criminal District
Court and sentenced to pay a fine of 3,000 Icelandic crowns as well as
all legal costs. The judge in charge was Mr. SJ, the same person who
had earlier handled the case as deputy chief of police. The applicant
appealed against the judgment to the Supreme Court of Iceland where
his primary claim was based on the argument that the case had not been
tried by an impartial judge. The Supreme Court however, dismissed the
argument, found the applicant guilty of one of the charges brought
against him and sentenced him to pay a fine of 1,500 Icelandic crowns
as well as all legal costs.
As can be seen from the above the judicial system of Iceland
provides that, outside the capital of Reykjavik, the town and county
magistrates act both as chiefs of police and judges in criminal
proceedings. The applicant is of the opinion that Article 6 para. 1
of the Convention was violated when the same person acted first as
deputy chief of police and later as judge in the criminal case brought
against him.
The Government maintain that the applicant cannot claim to be
a victim of a violation of the Convention since there were no
deficiencies in the treatment of his case before the Supreme Court of
Iceland. Furthermore, the Government maintain that the applicant was
awarded all the material relief he sought by the Supreme Court.
There is no doubt that the present case concerned the
determination of a criminal charge within the meaning of Article 6 of
the Convention. This is also the way the case was treated under
Icelandic law. It would, however, be absurd and contrary to the object
and purpose of Article 6 para. 1 if everyone in Iceland charged with a
criminal offence would have to appeal his case to the Supreme Court in
order to receive impartial treatment. This also follows from the
case-law of the European Court of Human Rights, for example the
judgment in the case of De Cubber v. Belgium. Furthermore, it is not
quite true that the applicant was awarded all the material relief he
sought because he was found guilty by the Supreme Court of the charge
of exceeding the speed limit and sentenced to pay a fine.
It is important, however, that the Supreme Court rejected the
applicant's primary claim and with reference to the above-mentioned
De Cubber judgment the defect involved matters of internal organisation
which were not cured by the higher court. Therefore, the applicant
may claim to be a victim within the meaning of Article 25 of the
Convention.
The Government have furthermore submitted that the judicial
system in Iceland could be justified by the special circumstances
there, for example the historical and geographical situation. This
is, however, of no relevance since Iceland is, as any other High
Contracting Party, obliged to comply with the Convention. The
applicant thus maintains that his case was not determined by an
independent and impartial tribunal within the meaning of Article 6
para. 1 of the Convention.
According to the established case-law of the European Court of
Human Rights the question of impartiality can be tested in various
ways. Hence, one can distinguish between a subjective approach, that
is endeavouring to ascertain the personal conviction of a given judge
in a given case, and an objective approach, that is determining
whether he offered a guarantee sufficient to exclude any legitimate
doubt in this respect.
The judge in the present case did not display any personal
hostility or ill-will towards the applicant. However, the fact that
the case was decided by a person who earlier in the same case had
acted as deputy chief of police must lead to the conclusion that the
applicant's case was not heard by an impartial tribunal. A judge who
one day is working closely with the police as its superior and the
next day is deciding a case where the police is clearly on the other
side, cannot be seen to do justice. In the present case the judge in
question, in his capacity as deputy chief of police, had earlier sent
the applicant two letters offering him to settle the case by paying a
fine. By doing this he must have made up his mind and decided by
himself that the applicant was guilty of both charges. He cannot
therefore be considered an impartial judge when he afterwards is
called upon to decide in the case as a judge.
Due to the similarity between the present case and the case of
De Cubber, it is finally interesting to compare the status of the
chief of police or deputy chief of police in Iceland with the role of
the investigating judge in Belgium. According to the applicable
Icelandic legislation the public prosecutor of Iceland orders
investigations in criminal cases, directs and supervises them. He
may issue orders and instructions to the police carrying out an
investigation and may attend it personally or have his deputy attend.
Furthermore, the chiefs of police shall, when they consider it
appropriate or necessary, commence an investigation owing to suspected
offences, whether or not they have received a request. In this regard
they are subject to the orders of the public prosecutor.
Accordingly, as regards the criminal investigation, it is
clear that the chiefs of police in Iceland are placed under the
orders and instructions of the public prosecutor. This comparison of
the status of the investigating judges in Belgium and the chiefs of
police in Iceland reveals that the chiefs of police in Iceland are
more dependent on the public prosecutor than the investigating judges
in Belgium. Therefore, they should be considered more partial as
judges in criminal proceedings because of their close ties with one of
the parties to the proceedings.
In the light of the above the applicant is of the opinion that
he can claim to be a victim of a violation of Article 6 of the
Convention, in that he was not tried in the District Criminal Court
of Akureyri by an impartial tribunal as guaranteed by Article 6.
THE LAW
The applicant maintains that he may claim to be a victim of a
violation of the Convention in that he never confessed to the charge
of exceeding the speed limit, but chose not to contradict the radar
speed measurement and was subsequently convicted of the charge.
Furthermore the applicant submits that the same person acted first as
chief of police and subsequently as judge in the criminal case brought
against him and that there is nothing in Icelandic law to prevent the
same official from performing both these functions. He complains of a
breach of Article 6 para. 1 (Art. 6-1) of the Convention alleging that the
criminal charge against him was not determined by an impartial
tribunal in these circumstances.
The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
reads as follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by law."
The Government contend that the applicant cannot claim to be a
victim of a violation of the Convention, as required by Article 25 (Art. 25),
since he in fact confessed to the charge of exceeding the speed limit
and since, on his appeal, the Supreme Court of Iceland acquitted him
of the remaining charge. In the alternative the Government maintain
that the applicant's complaint should be rejected as being manifestly
ill-founded. The case should be considered in the light of the
historical and geographical background of Iceland. Mr. SJ, when
representing the chief of police, merely followed routine procedures
used in all cases of this kind. Impartiality was accordingly observed
in full during this stage of the proceedings. Similarly there was no
indication that Mr. SJ, when serving as deputy judge, acted in a way
which could lead to the conclusion that the applicant's case was not
heard by an impartial tribunal. The treatment of the applicant's case
was therefore in conformity with Article 6 (Art. 6) of the Convention.
The Commission has taken cognizance of both parties'
submissions and has made a preliminary examination of the applicant's
complaint. It has come to the conclusion that the case raises
serious issues as to the application and interpretation of Article 6 (Art. 6)
of the Convention, and that these issues can only be determined after an
examination of the merits.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C.A. NØRGAARD)