AS TO THE ADMISSIBILITY OF
Application No. 13291/87
by Einar SVERRISSON
against Iceland
The European Commission of Human Rights sitting in private
on 4 December 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 7 September 1987
by Einar SVERRISSON against Iceland and registered on 9 October 1987
under file No. 13291/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is an Icelandic citizen, born in 1914. He is a
farmer and resides at Kaldrananes, Iceland. Before the Commission he
is represented by his lawyer, Mr. Eirikur Tómasson, Reykjavik, Iceland.
In July 1985 the applicant removed from his estate a fence
which had been erected in 1954 in order to prevent sheep, cattle, etc.
from straying. The authorities of the district of Myrdalshreppur
reported the incident to the local police claiming that the fence was
their property. A policeman, acting on the instructions of the county
magistrate of Vestur Skaftafellssysla, Mr. Einar Oddsson, carried out
a preliminary investigation of the case. The applicant maintained,
however, that it was his lawful right to remove the fence from his own
property.
Having examined the police file Mr. Oddsson, acting as chief
of police, sent the relevant documents of the case to the State
Prosecutor of Iceland. In return the State Prosecutor requested
Mr. Oddsson to investigate the case further, now in his capacity of
investigating judge according to the provisions of the Code of
Criminal Procedure No. 74 of 21 August 1974. At the conclusion of
this preliminary investigation Mr. Oddsson returned the documents of
the case to the State Prosecutor who then issued an indictment against
the applicant charging him with destruction of public property
contrary to the Icelandic Penal Code.
The case was brought before the District Criminal Court sitting
with one judge, Mr. Einar Oddsson, in his capacity of criminal court
judge and he pronounced judgment in the case on 1 July 1986. The
applicant was found guilty of the charge brought against him and he
received a suspended sentence with a two year period of probation
following the pronouncement of the judgment. The applicant was also
ordered to pay the costs of the proceedings.
The applicant appealed against this judgment to the Supreme
Court of Iceland claiming that the case be sent back to the District
Criminal Court for a re-trial. His claim was based on two points:
first, that the investigation by the police and the district court
judge had been incomplete and secondly that the case had not been
heard by an impartial judge in the District Criminal Court. With
regard to the latter point the applicant argued in the oral hearing
before the Supreme Court that the district criminal court judge should
not have pronounced judgment in the case as he, under the Icelandic legal
system, dealt with the case not only in his capacity as criminal court
judge but also in his capacity as chief of police of the area. The
applicant maintained that this was in conflict with Sections 2 and 61
of the Icelandic Constitution and Article 6 of the European Convention
on Human Rights.
In its judgment of 10 March 1987 the Supreme Court unanimously
rejected the applicant's complaint as to the partiality of the
district criminal court judge and stated as follows:
"Section 2 of the Icelandic Constitution ... has not been
considered as interfering with the judicial organisation
prescribed by law, according to which county and town
magistrates serving as chiefs of police also serve as district
court judges, notwithstanding that this is subject to
exemptions cf. Section 29 of Act No. 85 of 1936 in respect
of District Court Procedure in Civil Cases, and Section 4 of
the Code of Criminal Procedure ... . Section 61 of the
Constitution of 1944, ... also indicates directly that judges
may perform administrative functions. Article 6 of the European
Convention on Human Rights and Fundamental Freedoms, cf.
announcement No. 11 of 9 February 1954, has not been given
the force of law in Iceland. It does not therefore affect
the organisation described above as provided by law. Thus,
as the judgment appealed against was passed by a district
court judge in his rightful capacity under Icelandic law, it
cannot be voided on these grounds, notwithstanding that
reports obtained by a policeman in the judge's area of
office have been submitted in court."
The majority of the Supreme Court furthermore found the
applicant guilty of the charge brought against him and the judgment
of the District Criminal Court was upheld. The applicant was ordered
to pay the costs of the appeal proceedings.
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 7 September 1987 and
registered on 9 October 1987.
On 14 April 1989 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.
By letter of 28 July 1989 the Government submitted that they
did not object to the case being declared admissible. No observations
have been received from the applicant other than those contained in
his initial application.
THE LAW
The applicant 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.
The relevant part of Article 6 para. 1 (Art. 6-1) 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 Commission has noted the contents of the Government's
letter of 28 July 1989 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. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy