FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39731/98
by Pétur Thór Sigurdsson
against Iceland
The European Court of Human Rights (Fourth Section), sitting on 14 June 2001 as a Chamber composed of
MrG. Ress, President,
MrA. Pastor Ridruejo,
MrL. Caflisch,
MrJ. Makarczyk,
MrI. Cabral Barreto,
MrsN. Vajić, judges,
Mr David Thór Björgvinsson, ad hoc judge,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 23 October 1997 and registered on 9 February 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicant is an Icelandic national, born in 1954. He is a practising lawyer and resides in Reykjavík, Iceland. He is presenting his own case before the Court. The Government are represented by their Agent, Ms Björg Thorarensen, Director at the Ministry of Justice and Ecclesiastical Affairs.
A. The circumstances of the case
The facts of the case, as presented by the parties, may be summarised as follows.
The applicant instituted proceedings against the National Bank of Iceland, claiming compensation under the law of torts, on the grounds that one of its legally trained employees had made an incorrect declaration in 1992 which was instrumental in the Supreme Court's finding that a certain claim was no longer enforceable. As the District Court found for the respondent the applicant, by a summons of 31 May 1996, instituted appeal proceedings before the Supreme Court.
In the course of the proceedings before the Supreme Court the applicant was given various dates between 10 July and 30 October 1996 within which to complete his submissions and the respondent bank was given until 6 November 1996 to submit its reply. Subsequently the hearing was scheduled to open on 14 April 1997. Meanwhile, sometime between early March and early April 1997, the case was included in the Supreme Court's docket.
By a judgment of 25 April 1997, the Supreme Court, by 3 votes to 2, rejected the applicant's claim.
One of the three judges forming the majority was Mrs Justice Guðrún Erlendsdóttir. The applicant states that after the delivery of the Supreme Court's judgment, it came to light that Mrs Justice Guðrún Erlendsdóttir and her husband, a Supreme Court lawyer, had a financial relationship with the National Bank of such a nature as to disqualify Mrs Justice Guðrún Erlendsdóttir from adjudicating the applicant's case.
In the spring of 1996 Mr Örn Clausen, husband of Mrs Erlendsdóttir, sought to find a solution to certain financial problems arising from the inability of a debtor to pay certain debts with respect to which Mr Clausen was one of the guarantors, and the inability of other guarantors to honour the guarantee. In May 1996 21 creditors, one of which was the National Bank, possessed claims under the guarantees amounting to ISK 50,000,000. This included a claim of approximately ISK 16,000,000 by the National Bank.
On 30 May 1996, in order to obtain funds to pay the creditors, the judge's husband issued four debt certificates to Landsbréf, a financial institution owned by the National Bank, totalling approximately ISK 13,600,000. The debts were secured on two properties owned by Mrs Justice Guðrún Erlendsdóttir, namely the couple's main residence and one apartment in which her husband had his law office.
On 4 June 1996 Mr Örn Clausen paid approximately ISK 4,370,000 towards his debts. Under the terms of the settlement agreement concluded during that time between him and Landsbréf he was released of approximately ISK 11,220,000. On 4 June 1996 Landsbréf sold the above four debt certificates.
According to the Government, the payment by Mr Örn Clausen on 4 June 1996 represented 25% of his debt and total costs. As from that date up until the Supreme Court's judgment on 25 April 1997, Mr Örn Clausen's remaining debts to the bank amounted to approximately ISK 2,300,000.
The applicant submits that there is evidence that on 4 June 1996 the debts of the husband of Mrs Justice Guðrún Erlendsdóttir towards the National Bank amounted to more than ISK 31,000,000. Moreover, in April 1997, at the time when the Supreme Court gave its judgment, the debts in question apparently amounted to approximately ISK 29,000,000.
The applicant submitted two petitions to the Supreme Court requesting reopening of the proceedings in his case against the National Bank on the ground of Mrs Justice Guðrún Erlendsdóttir's alleged lack of impartiality.
The first petition was submitted to the Supreme Court on 9 June 1997. The Supreme Court, sitting in a plenary formation, unanimously rejected it on 10 July 1997. Its decision reads:
“In support of his assertion relating to disqualification of Supreme Court judge Guðrún Erlendsdóttir, the petitioner refers to four debt certificates issued to the name of Landsbréf Ltd, which are secured by mortgage upon two real estates owned by the judge. By reason of the National Bank's ownership of Landsbréf Ltd, the petitioner considers that this situation disqualified the judge from adjudicating the case. The secured debts in question amount to a total of ISK 13,600,000 which, as stated in the certificates, corresponds to approximately 55% of the total assessed sales price of the properties. The certificates were issued in May 1996 for a period of 25 years. The petitioner does not maintain that the certificates are in arrears.
It is established by information from the lawyer for the National Bank of Iceland that the debt certificates are not, and were not at the time when the case was being considered by the Supreme Court, in the ownership of Landsbréf Ltd, the National Bank of Iceland or any [other] company linked to the Bank. Mortgages upon the said properties referred to in the petition, which now have been struck out of the records, and secure debts due to other parties are deemed not relevant here.
Although the above-mentioned letter of [the applicant] does not refer to the particular statutory provisions authorising the reopening of proceedings, it is to be assumed that the petition is based on section 169 of the Civil Procedure Act, No. 91/1991. The petitioner has not referred to any new fact or adduced any new evidence having a bearing on the merits of the case, cf. section 169 § 1, subparagraphs (a) and (b) of Act No. 91/1991.
In the light of the above consideration concerning the said mortgages, none of the conditions which provide the petitioner with a reason for believing that the said judge was not impartial and therefore disqualified from adjudicating the case, is fulfilled, cf. section 6, subsections (1) and (9), of the Supreme court Act, No. 75/1973; section 5, subsection (g) of Act No. 91/1991, Article 70 of the Constitution of the Republic of Iceland, No. 33/1944, cf. section 8 of Constitutional Act No. 97/1995, and Article 6 of the European Human Rights Convention, cf. Act No. 62/1994. Accordingly, the legal conditions for granting the petitioner's request for reopening of the proceedings being not fulfilled, the request is therefore rejected.”
The full name of Landsbréf Ltd is Landsbréf hf, Verðbréfamarkaður Landsbankans (Landsbréf Ltd, the National Bank Securities Market), as specified in Article 1 of the Articles of Incorporation, dated in July 1989. The founders were the National Bank of Iceland, the Bank's Mortgage Department, and three bank governors then in office. At the time of the introduction of this application Landsbréf Ltd was alleged to be almost completely in the ownership of the National Bank, and all three governors of the Bank had a seat each on the company board.
The applicant submits that, after the Supreme Court had given its decision of 10 July 1997 in the first revision case, he realised that Mrs Justice Guðrún Erlendsdóttir's husband had additional financial ties with the National Bank. During the period from 1988 to 1991 he had undertaken large-scale financial obligations vis-à-vis the Bank and for years his debts to the Bank had been seriously in arrears. According to the applicant, although this cannot be affirmed with certainty, it is possible that the National Bank released Mrs Justice Guðrún Erlendsdóttir's husband from a debt of over ISK 11,000,000.
On 23 October 1997 the applicant filed a new petition with the Supreme Court, asking for reopening of his compensation case. The Supreme Court rejected the petition on 20 November 1997 on the ground that, under the relevant provisions of the Civil Procedure Act, a party may apply only once for re-examination of a case.
B. Relevant domestic law and practice
At the material time of the present case a general rule on the disqualification of judges was contained in Article 5 (g) of the 1991 Code of Civil Procedure, which reads:
“A judge ... is disqualified from handling a case if:
...
g. Other facts or conditions are at hand which are capable of casting doubt on his impartiality on reasonable grounds.”
The Government have further pointed to a provision in section 6 § 9 of the Act 1979 on the Supreme Court of Iceland (Act No. 75:1973), which reads:
“A judge of the Supreme Court shall withdraw if:
...
9. His attitude to a party or to the matter in controversy is such as to present a risk that he will not be able to examine the case in an impartial manner.”
Section 7 § 2 of the Act provides that the court shall decide in plenary session whether a judge is prevented on grounds of lack of impartiality from participating in a given case. It is open to the parties to challenge the participation of a judge on such grounds.
Subsequent to the events at issue in the present case, a new Act on the Judiciary was enacted in 1998 (No. 15:1998), which in section 18 (4) contains the following provision aimed at codifying a practice that applied at the time of the case:
“A request by a judge not to be assigned to deal with a particular case may be granted by reason of the judge's relationship to the subject matter, the parties, their non-legal representative or their lawyer, even if the judge cannot be deemed to be disqualified from handling the case, provided that the judge's request is duly reasoned and another judge of the court is available.”
COMPLAINTS
The applicant alleges that, because of Mrs Justice Guðrún Erlendsdóttir's participation in the case before the Supreme Court, his right to a fair hearing by an independent and impartial tribunal guaranteed by Article 6 § 1 of the Convention has been violated.
THE LAW
The applicant complains that, because of the close financial relationship between, on the one hand, Mrs Justice Guðrún Erlendsdóttir of the Supreme Court sitting in his case and her husband and, on the other hand, the National Bank of Iceland, his case brought against the Bank was not heard by an independent and impartial tribunal as required by Article 6 § 1 of the Convention, the relevant parts of which read:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”.
1. The Government submitted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in that he had omitted to request that Mrs Justice Guðrún Erlendsdóttir withdraw before the Supreme Court adjudicated the case. It was only after the applicant was notified of the Supreme Court's judgment of 25 April 1997 rejecting his claim that he started his search for information in order to demonstrate that there were certain links between the judge and the National Bank. The information regarding the mortgages resting upon the judge's property was accessible to the public on the official mortgage register. All the information submitted by the applicant in the subsequent proceedings relating to his requests for the reopening of the case could easily have been obtained by May 1996, when an appeal summons was issued by the Supreme Court, or by March 1997, when it was clear that Mrs Justice Guðrún Erlendsdóttir would sit in the case. Had the applicant made such a request at the relevant time, the Supreme Court would, in accordance with standard practice, have given it due consideration and would easily have accepted to change the docket. Moreover, the Government argued that, as soon as it is available, the docket is sent to the representatives of all the interested parties.
The applicant contested the above contentions by the Government. Contrary to what has been maintained by the Government, the applicant was unaware and was unable to deduce, either from the docket or in any other way, that Mrs Justice Guðrún Erlendsdóttir would be on the bench in this case. The applicant became aware of the Supreme Court's composition for the first time when the judges entered the courtroom immediately before the opening of the hearing on 14 April 1997. According to information provided by the Supreme Court, the policy of informing parties of the composition of the court in advance of hearings did not start until the second semester of 1998, and no such information had been provided to the parties in advance of the 14 April 1997 hearing of the Supreme Court in the present case. The applicant further submitted that the information in question was new to him when it was obtained on 3 June 1997. Until such time he had no particular occasion to question the judge's independence and impartiality.
The Court notes that, under the relevant domestic provisions on the disqualification of judges, including the general rule in Article 5 (g) of the Code of Civil Procedure, the disqualification of a judge was not dependant on a request to this effect by one of the parties. On the contrary, as it transpires from the wording of these provisions (“is disqualified” in Article 5 of the Code and “shall withdraw” in section 6 of the Supreme Court Act), it would in the first place be for each judge to appraise himself or herself ex officio of the existence of any reasons warranting that he or she withdraw from consideration of the case. Although it was
possible for the parties to request that a judge withdraw, it does not follow that the question regarding disqualification was a matter that primarily was the responsibility of the parties.
Furthermore, the Court does not find it shown that the applicant was aware of the Supreme Court's composition until the opening of the oral hearing on 14 April 1997. Nor is there anything to suggest that the applicant, pending the Supreme Court proceedings, had any particular cause to carry out an investigation in order to find out whether there was, between the National Bank and Mrs Justice Guðrún Erlendsdóttir, any relationship capable of compromising her independence and impartiality.
In the light of the above, the Court is not persuaded by the Government's submission that, by omitting to raise the matter pending the main proceedings before the Supreme Court, the applicant had failed to exhaust domestic remedies with respect to his complaint under Article 6 § 1 of the Convention. Their plea on this point must therefore be rejected.
2. In support of his allegation that his right under Article 6 § 1 to a fair hearing by an independent and impartial tribunal had been violated, the applicant maintained that documentary evidence conclusively demonstrated that the husband of Mrs Justice Guðrún Erlendsdóttir was not only heavily indebted – directly and indirectly (through Landsbréf Ltd) – to the National Bank of Iceland in June 1996, but that those debts still existed to a significant extent in April 1997. In the applicant's opinion it must be borne in mind that the husband's debts to Landsbréf Ltd amounted to substantial sums, far exceeding the ordinary and reasonable level of personal debts according to generally accepted standards. Moreover, the Supreme Court judge had mortgaged her home to Landsbréf Ltd and also a part of her real property on which her husband had his business premises. In the applicant's opinion, for years and still today, the National Bank of Iceland has had a dominating position vis-à-vis the judge and her husband.
The Government disputed the applicant's contention that Mrs Gudrun Erlendsdottir could not be regarded as an independent and impartial judge and that Article 6 § 1 of the Convention had therefore been violated. The Government pointed out that the resolution of the case had no bearing on the financial situation either for the judge or her husband. The only matter that gave rise to an issue related to her husband's indebtedness vis-à-vis the bank. However, he had sought to resolve his, admittedly serious, financial difficulties in the spring of 1996, involving, amongst other things, agreements with his creditors to release him from a part of his debts. At that time the applicant had not yet lodged his appeal with the Supreme Court, which he did on 31 May 1996. Thereafter, it took 10 months before it became evident that the Mrs Justice Guðrún Erlendsdóttir would sit in the
case. There was nothing abnormal about the debt release agreed by the bank on 4 June 1996, as it formed part of a larger settlement involving agreements of exactly the same nature with twenty other creditors.
As from 4 June 1996 up until the Supreme Court's judgment on 25 April 1997, her husband's remaining debts to the bank amounted to ISK 2,000,000, which sum certainly was not so large as to found an objective suspicion that the judge would not exercise her judicial function in an impartial manner.
Moreover, after the sale on 4 June 1996 by Landsbréf of four debt certificates issued by Mr Örn Clausen a few days previously, the former had no claim against the latter and Íslandsbankí (a separate private bank) became responsible for their collection. Landsbréf was not a credit institution but a securities brokerage firm acting mainly as an intermediary in the securities sale. Thus, this was not a case where the judge concerned was financially dependent on any party and her subjective impartiality was not even disputed.
The Court, having regard to the parties' submissions, considers that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 1 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy