THIRD SECTION
DECISION
Applications nos. 20486/16 and 21874/18
Steinþór GUNNARSSON
against Iceland
The European Court of Human Rights (Third Section), sitting on 12 October 2021 as a Committee composed of:
Georgios A. Serghides, President,
Anja Seibert-Fohr,
Frédéric Krenc, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above applications lodged on 5 April 2016 and 10 April 2017 respectively,
Having regard to the declaration submitted by the Icelandic Government (“the Government”) on 8 December 2020 requesting the Court to strike the applications out of the list of cases, the applicant’s reply to that declaration, and the Government’s further comments in reply,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Steinþór Gunnarsson, is an Icelandic national who was born in 1966 and lives in Reykjavik. He was represented before the Court by Mr Reimar Pétursson, a lawyer practising in Reykjavik.
2. The Government were represented by their Agent, Mr Einar Karl Hallvarðsson, State Attorney General.
3. The case concerns the applicant’s indictment and conviction for financial crimes. He was director of brokerage at Landsbanki Íslands hf.
4. On 5 June 2014 he was convicted by the Reykjavik District Court on one count of market manipulation, but acquitted on another, and sentenced to nine months’ imprisonment, of which six months were suspended for two years.
5. The applicant appealed against his conviction, by way of an appeal lodged by the Director of Public Prosecutions at the applicant’s request, and filed his written submissions with the Supreme Court. In her subsequent written submissions, the Director of Public Prosecutions demanded that the applicant’s partial acquittal be overturned and that he be convicted on both counts. The applicant wrote to the Supreme Court, requesting permission to submit a second set of written submissions addressing the count on which he had been acquitted in the light of the demand by the Director of Public Prosecutions. The Supreme Court denied that request, noting that there was no legal basis for granting such permission. Six months later the Supreme Court held an oral hearing in the case, which the applicant could attend and where he was represented by counsel.
6. By a judgment of 8 October 2015, the Supreme Court of Iceland convicted the applicant on both counts of market manipulation and sentenced him to nine months’ imprisonment, unsuspended.
7. The applicant complained under Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) that several aspects of the criminal proceedings in his case had violated his right to a fair trial.
8. Notice of the applications was given to the Government.
THE LAW
The applicant’s complaints and the Government’s unilateral declaration9. In his initial application the applicant firstly complained under Article 6 § 1 of the Convention that his right to a fair trial had been violated as he had not been allowed to submit a second set of observations to the Supreme Court, concerning the count on which he had been acquitted by the District Court, after the Director of Public Prosecutions sought to overturn that acquittal on appeal. Secondly, the applicant complained under the same provision that the Supreme Court had reversed the District Court’s findings without hearing the defendants or the witnesses in person. Thirdly, the applicant complained that his trial had not been conducted within a reasonable time, in violation of Article 6 § 1.
10. In addition, in a subsequent application, the applicant complained that his right under Article 6 § 1 to be heard by an independent and impartial tribunal had been violated on account of the alleged financial interests of two Supreme Court justices sitting on the bench in his case, namely E.T. and V.M.M.
11. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
12. After attempts to reach a friendly settlement had failed, the Government informed the Court by a letter of 8 December 2020 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike the applications out of its list of cases in accordance with Article 37 of the Convention.
13. The declaration provided as follows:
“[T]he Government of Iceland acknowledge that there has been a violation of the applicant’s right to a fair trial under Article 6 § 1 of the Convention, with reference to the Court’s judgment in the case of Sigríður Elín Sigfúsdóttir v. Iceland, no. 41382/17, 25 February 2020, and the manner in which the applicant’s acquittal was overturned on appeal.”
14. In the declaration, the Government offered to pay the applicant 15,600 euros to cover any non-pecuniary damage, as well as any costs and expenses incurred in the proceedings before the Court, plus any tax that might be chargeable to the applicant. The Government further noted that the applicant had the possibility of applying to the Court on Reopening of Judicial Proceedings for the reopening of the case against him, pursuant to Chapter XXXV of the Criminal Procedure Act no. 88/2008, as amended by Act no. 47/2020.
15. By a letter of 19 February 2021 the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the grounds that the Government had not acknowledged a violation of his right to a fair trial in respect of two of his complaints. The applicant reiterated his complaint that he should have been entitled to submit a second set of written observations before the Supreme Court to address the prosecution’s demand that his partial acquittal be overturned. The applicant also criticised the fact that the unilateral declaration had not acknowledged that the length of his criminal proceedings had exceeded the “reasonable time” requirement of Article 6 § 1 of the Convention.
16. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
17. It also reiterates that in certain circumstances it may strike an application out of its list of cases under Article 37 § 1 (c) on the basis of a unilateral declaration by the respondent Government, even if the applicant wishes the examination of the case to be continued.
18. To this end, the Court will examine below the declaration in the light of the principles emerging from its case-law, in particular Tahsin Acar v. Turkey ((preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007, and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
Complaints under Article 6 § 1 concerning an independent and impartial tribunal and the manner of overturning a partial acquittal on appeal
19. In respect of the applicant’s complaint that his right to be heard by an independent and impartial tribunal had been violated, the Court is satisfied that the Government’s acknowledgment of a violation of Article 6 § 1 of the Convention, together with their reference to the Court’s judgment in Sigríður Elín Sigfúsdóttir (cited above), amounts to a sufficiently explicit acknowledgment of a breach of the applicant’s right on account of the participation of Justice V.M.M. in the applicant’s trial.
20. The Court is furthermore satisfied that the Government’s acknowledgment of a violation of Article 6 § 1 of the Convention on account of “the manner in which the applicant’s acquittal was overturned on appeal” amounts to a sufficiently explicit acknowledgment of a breach of the applicant’s right to a fair trial in respect of his complaint about the manner in which the Supreme Court overturned his partial acquittal without summoning him and relevant witnesses and hearing evidence from them directly (see also Styrmir Þór Bragason v. Iceland, no. 36292/14, §§ 61-84, 16 July 2019, and Júlíus Þór Sigurþórsson v. Iceland, no. 38797/17, §§ 30‑44, 16 July 2019).
21. According to the Court’s case-law, where a violation of Article 6 has been found, the reopening of domestic proceedings, if requested, is in principle an appropriate way, and often the most appropriate, of putting an end to the violation and affording redress for its effects (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 50 and 52, 11 July 2017). In this connection, bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and the Protocols thereto, it should be reiterated that it falls in the first place to the national authorities to redress any violations of the Convention.
22. The Court notes that the applicant has the possibility of applying to the Court on Reopening of Judicial Proceedings, which, pursuant to section 228(1), in conjunction with section 233(1), of the Criminal Procedure Act (as amended by Act no. 47/2020), can grant the reopening of the proceedings against him if certain conditions are fulfilled. These include the emergence of new documents or information which could have had great significance for the outcome of the case if they had been available before the judgment was announced (section 228(1)(a)), or the presence of serious defects in the processing of the case which affected its outcome (section 228(1)(d)). The preparatory works to Act no. 47/2020 specify that “new documents or information” is to be interpreted as encompassing, among other things, decisions and judgments of the European Court of Human Rights. The Court takes note of the Government’s reference to the applicant’s possibility of applying to the Court of Reopening. Having regard to the above and the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c) of the Convention).
23. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).
24. The Court considers that the amount proposed by the Government should be converted into Icelandic krónur at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision in accordance with Article 37 § 1 of the Convention. In the event of failure to settle within this period, simple interest is to be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
25. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
26. In view of the above, it is appropriate to strike the applications out of the list of cases in so far as they concern the applicant’s right to a fair trial in respect of the manner in which the Supreme Court overturned his partial acquittal without summoning the applicant and relevant witnesses and hearing evidence from them directly, and in respect of the participation of Justice V.M.M. in the applicant’s trial.
27. In respect of the applicant’s complaint concerning the participation of Justice E.T. in his trial, the Court finds this complaint to be manifestly ill‑founded (see Sigríður Elín Sigfúsdóttir, cited above, §§ 54-55).
Other complains under Article 6 § 128. In respect of the applicant’s complaint that he was not permitted to submit a second set of observations to the Supreme Court, the Court notes that the domestic legislation at the time permitted the prosecution to seek to overturn a partial acquittal in their observations to the Supreme Court after a defendant had appealed against a partial conviction. The Court further notes that the Icelandic legal system is based on the principle of oral proceedings, including before the Supreme Court. Although the applicant was not permitted to file a second set of observations, he submitted himself that he had been able to address the prosecution’s arguments at the oral hearing before the Supreme Court, for which he had had five months to prepare after the prosecution had submitted their observations in which the overturning had been sought (see, a contrario, Zahirović v. Croatia, no. 58590/11, § 47, 25 April 2013, where the State attorney’s opinion was never communicated to the defence, nor did the defence have any knowledge of the opinion or any opportunity to reply to it before judgment of the Supreme Court was given).
29. Under these circumstances the Court finds no indication that the procedure in the applicant’s trial in this respect deprived him of a real opportunity to comment on the prosecution’s observations, or that it otherwise undermined the principle of equality of arms (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 91, 18 December 2018 and the cases cited therein). The Court thus finds this complaint to be inadmissible as manifestly ill-founded.
30. In respect of the applicant’s complaint that the length of proceedings violated his right to a fair trial within a reasonable time, the Court notes that the duration of the proceedings in the applicant’s case totalled six years and five months, counting from the moment when the Financial Supervisory Authority referred the case for investigation by the Special Prosecutor, to the delivery of the Supreme Court’s judgment. Of that duration, the investigation by the Special Prosecutor lasted a total of three years and ten months, and the judicial proceedings at two levels of jurisdiction lasted a total of two years and seven months.
31. Although this is a considerable amount of time, the complexity of the case should be taken into account when assessing whether the proceedings exceeded what is reasonable (see Pélissier and Sassi v. France [GC], no. 25444/94, § 66, ECHR 1999‑II). Moreover, regard must be had to the unusual circumstances of the investigation: following the 2008 financial crisis in Iceland, which saw its three major banks being declared bankrupt, the then newly established Office of the Special Prosecutor was charged with investigating and prosecuting a vast amount of suspected white-collar crimes concerning events leading up to the crisis. Such investigations typically involve a considerable level of complexity which must be taken into account when assessing reasonableness (see C.P. and Others v. France, no. 36009/97, § 30, 1 August 2000). In the absence of any indications of lengthy periods of inactivity on the part of the prosecuting authorities, and in the light of the complexity and nature of the case, the Court sees no reason to find that the length of the proceedings in the applicant’s case violated his right to a fair trial within a reasonable time. The Court thus finds this complaint inadmissible as manifestly ill-founded in accordance with Article 35 § 3 (a) of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 18 November 2021.
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Olga Chernishova Georgios A. Serghides
Deputy Registrar President