Last Updated on October 3, 2020 by LawEuro
Information Note on the Court’s case-law 222
October 2018
Gestur Jónsson and Ragnar Halldór Hall v. Iceland – 68271/14 and 68273/14
Judgment 30.10.2018 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Fresh factual and legal determination of criminal charge before Supreme Court following trial in absentia: no violation
Article 7
Article 7-1
Nullum crimen sine lege
Fine imposed in absentia on defence counsel reasonably foreseeable: no violation
[This case was referred to the Grand Chamber on 6 May 2019]
Facts – The applicant lawyers’ request that their appointment as defence counsel for defendants in a criminal trial be revoked was rejected by the District Court. The applicants did not attend the trial and they were later convicted, in their absence, of contempt of court and delaying the proceedings. They were each fined approximately EUR 6,200. Their appeal to the Supreme Court was dismissed.
Law – Article 6 § 1
(a) Applicability – The fact that a fine imposed was significant did not in itself imply that an offence could be qualified as a “criminal offence”. The finding by the Supreme Court that the fines imposed on the applicants had amounted to a criminal penalty had not been disputed by the parties. Therefore, and in particular having regard to the first Engel criteria, the legal classification of the offence under national law, the Court saw no reason to disagree. Accordingly, the applicants’ offence had been based on a “criminal charge” within the meaning of the criminal limb of Article 6 which was therefore applicable.
(b) Merits – It was not disputed that the applicants had been tried in absentia before the District Court. It was also undisputed that they had been neither summoned to appear before the District Court nor made aware of its intention to impose fines. Therefore, the question was whether the appeal proceedings before the Supreme Court had provided the applicants with a remedy in the form of a fresh factual and legal determination of the criminal charge against them. Unlike in De Cubber v. Belgium, the present case was limited to defects in the conduct of proceedings before the District Court and was thus not of such a nature as to call into question the Supreme Court’s ability to remedy the defects on appeal.
The Supreme Court had proceeded on the basis that the proceedings before the District Court had not been in conformity with the requirements of Article 6 of the Convention. The applicants had been fully represented by legal counsel in the proceedings before the Supreme Court. They had submitted documentary evidence and an oral hearing had been held. The Supreme Court had had full jurisdiction to examine not only questions of law but also questions of fact pertaining to criminal liability, sentencing and evaluation of the probative value of documentary evidence other than oral statements before the District Court.
While the applicants had not requested to be heard or to have witnesses examined before the Supreme Court, they had maintained that it had been for the Supreme Court to invite them to give statements and to have witnesses examined. However, Article 6 did not require the Supreme Court to act ex proprio motu and invite the applicants to give statements or have witnesses examined. In cases where an accused had been convicted in absentia at first instance, it was for the appellate court to provide a forum for the fresh factual and legal determination of the merits of the criminal charge. It was then for the accused to avail themselves of the remedies for their defence that were provided for by domestic law. Taking account of the reasoning of the Supreme Court, which was the highest court in the Icelandic judicial system interpreting domestic law, and viewing the wording of the provisions in question in the light of the particular facts of the case, the Court found that the Supreme Court’s interpretation and application of the relevant provisions could not be considered arbitrary or manifestly unreasonable.
The applicants had been provided with sufficient opportunity to obtain before the Supreme Court a fresh factual and legal determination of the merits of the charges against them which had allowed them to put forward their case in proceedings compliant with the fairness guarantees of Article 6.
Conclusion: no violation (unanimously).
Article 7: The case was the first of its kind to have been brought before the Supreme Court on appeal due to the in absentia imposition by a District Court of fines under the Criminal Procedures Act on defence counsel who had resigned from their positions in disregard of the orders of the trial court. Where the domestic courts were called upon to interpret a provision of criminal law to a particular set of facts for the first time, an interpretation of the scope of the offence which was consistent with the essence of the offence had, as a rule, to be considered foreseeable.
The Court rejected the applicants’ argument that the relevant provisions lacked foreseeability. The provisions provided a basis for imposing fines on “defence counsel”. Although it would be the normal sequence of events that a defence counsel would be performing his or her function at the point in time when the fine would be imposed, the wording of the provision did not exclude the imposition of a fine on a defence counsel who had been replaced, resigned or been relieved of his or her duties. The interpretation given to the provision by the national courts did not contravene the very essence of the offence in question.
Article 7 could not be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen. It followed that the mere fact that a provision of domestic law did not stipulate the maximum amount which might be imposed in the form of a fine did not, as such, run counter to the requirements of Article 7. Moreover, although it was undisputed that the fines imposed on the applicants were substantially higher than previously imposed fines under the relevant provision, it was also clear that the applicants’ case was the first of its kind and one in which the Supreme Court had considered that the nature and gravity of their actions had warranted the imposition of fines which were higher than those imposed in prior cases with different facts. The amount of the fines in question had been consistent with the essence of the offence and could have been reasonably foreseen by the applicants.
Conclusion: no violation (unanimously).
(See Engel and Others v. the Netherlands, 5100/71 et al., 8 June 1976; and De Cubber v. Belgium, 9186/80, 26 October 1984. See also Vasiliauskas v. Lithuania [GC], 35343/05, 20 October 2015, Information Note 189; Jorgic v. Germany, 74613/01, 12 July 2007, Information Note 99; and Sejdovic v. Italy [GC], 56581/00, 1 March 2006, Information Note 84)
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