Last Updated on December 29, 2020 by LawEuro
Information Note on the Court’s case-law 246
December 2020
Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC] – 68271/14 and 68273/14
Judgment 22.12.2020 [GC]
Article 6
Criminal proceedings
Article 6-1
Criminal charge
EUR 6,200 fine without possible imprisonment for defence counsels’ non-attendance at hearing not “criminal”, despite absence of an upper statutory limit on its amount: inadmissible
Facts – The applicants are lawyers. During a criminal trial in which they were defending the accused (and with the latter’s consent), the applicants requested that their appointment as defence counsel be revoked. However, the court refused. At a hearing in which the accused, defended by a new lawyer, were sentenced, the applicants did not appear. The court then fined the applicants in absentia approximately EUR 6,200 each for contempt of court and for causing unnecessary delays in the proceedings. They appealed unsuccessfully up to the Supreme Court.
In a judgment of 30 October 2018 (see Information Note 222), a Chamber of the Court found, unanimously, that there had been no violation of Articles 6 § 1 or 7. The case was referred to the Grand Chamber at the applicants’ request.
Law – Article 6 § 1 : The Icelandic government had invited the Grand Chamber to hold that Article 6 was inapplicable under its criminal limb. This had to be determined by applying the three Engel criteria:
(a) The first criterion: the legal classification of the offence in domestic law
It did not appear from the Supreme Court’s reasoning that it regarded offences of the type in question as being classified as criminal under national law. The offence in question was set out in a chapter, entitled “Procedural fines”, of the Criminal Procedure Act and not in any provision of the General Penal Code, or in specialised criminal law in other statutes. These provisions were also very similar to those contained in the Civil Procedure Act. The examination of such conduct did not generally require the involvement of the State Prosecutor and a fine was to be levied by the court sitting in a case on its own motion.
It had therefore not been demonstrated that the offence had been classified as “criminal” under domestic law. However, the first of the Engel criteria was of relative weight and served only as a starting point.
(b) The second criterion: the nature of the offence
The fine imposed on each of the applicants had been on account of an offence provision which addressed a specific category of people possessing a particular status, namely that of a “State Prosecutor, defence counsel or legal advisor”. It did not appear that the provision applied outside that circle of people. It was for the court sitting in the particular proceedings in which the misconduct had occurred to examine of its own motion whether the misconduct fell foul of the relevant section.
The Court had frequently referred to the fact that the specific status of lawyers gives them a central position in the administration of justice, and that their special role entails a number of duties. Regard also had to be attached to the fact that rules enabling the court to sanction disorderly conduct in proceedings before it were a common feature of the legal systems of Contracting States, and derived from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings. Measures ordered by courts under such rules were more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence.
The Supreme Court had considered that the applicants’ deliberate refusal to appear at the scheduled hearing had entailed a severe violation of their professional duties in their capacity as defence counsel in a criminal case. The fact that they had totally ignored the judge’s lawful decisions, leaving him with no option but to discharge them and to appoint others in their place, had caused a major delay in the case. However, the Supreme Court had not specifically referred to the nature of the applicants’ misconduct as a reason for considering it to be criminal.
Despite the seriousness of the breach of professional duties in question, it was not clear whether the applicants’ offence was to be considered criminal or disciplinary in nature. It was therefore necessary to examine the matter under the third criterion.
(c) The third criterion: the nature and degree of severity of the penalty
Whilst the Supreme Court had not specifically referred to the offence as being classified as “criminal” under domestic law (the first Engel criterion), or to the nature of the applicant’s misconduct as a reason for considering it “criminal” (the second criterion) it had held that the fines imposed on them had been “by nature a penalty” (thus seemingly relying on the third criterion). It had had regard to the absence in the relevant contempt-of-court provisions of “any particular ceiling” on the amount of fines and to the amount of fines imposed on the applicants, which it had found to be “high”. Holding that Article 6 was applicable under its criminal limb, the Supreme Court had therefore proceeded to review the issue of compliance with this provision.
Nonetheless, when it came to interpreting the scope of the concept of “crime” in the autonomous sense of Article 6, the Court had to appraise the matter for itself. That said, nothing prevented the Contracting States from adopting a broader interpretation entailing a stronger protection of the rights and freedoms in question within their respective domestic legal systems.
It particular, the kind of misconduct for which the applicants had been held liable could not be sanctioned by imprisonment, in contrast to previous contempt-of-court cases in which Article 6 was found applicable, notably on account of this third criterion (Kyprianou and Zaicevs). Moreover, the fines at issue could not be converted into deprivation of liberty in the event of non-payment, which had been an important consideration in other cases. In addition, the fines had not been entered on the applicants’ criminal record.
Albeit high, the size of the fines imposed and the absence of an upper statutory limit did not suffice for the Court to deem the severity and nature of the sanction as “criminal” in the autonomous sense of Article 6 (see Müller-Hartburg v. Austria, 47195/06, 19 February 2013, where the size of the potential fine – approximately EUR 36,000 -, though having a punitive effect, had not been so severe as to bring the matter within the “criminal” sphere; see, similarly, Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13 and 2 others, 6 November 2018, where the maximum penalty had been ninety day-fines and the fine imposed on the applicant twenty day-fines, which had allegedly corresponded to EUR 43,750; compare also with the scale of the fines at issue in Mamidakis v. Greece, 35533/04, 11 January 2007, Grande Stevens and Others v. Italy, 18640/10 and 4 others, 4 March 2014, and Produkcija Plus Storitveno podjetje d.o.o. v. Slovenia, 47072/15, 23 October 2018, where the Court had considered that the penalties applied had been criminal in nature).
(d) Overall
The proceedings in question had not involved the determination of a “criminal charge” within the meaning of Article 6 and this provision did not apply to those proceedings under its criminal limb. The applicants’ complaint was therefore incompatible ratione materiae with the Convention provisions.
Conclusion: Inadmissible.
In light of the foregoing, the Court also held that the complaint under Article 7 was incompatible ratione materiae, for reasons of consistency in the interpretation of the Convention, and declared it inadmissible.
(See also Engel and Others v. The Netherlands, 5100/71 and others, 8 June 1976; Kyprianou v. Cyprus [GC], 73797/01, 15 December 2005, Information Note 82; Zaicevs v. Latvia, 65022/01, 31 July 2007, Information Note 99)
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