Judge impartiality. Participation in court panel, which examined bank executives, a judge whose son was a legal advisor to the same bank, raises suspicions of a lack of impartiality. Failure to examine a witness that was not essential does not violate the fair trial.
Sigurður Einarsson and others v. Iceland 04.06.19 (no. 39757/15)
Impartiality ofJudge and fair trial. Not examination of witness that was not essential. The conditions for ensuring fair trial are, inter alia, the impartiality of the judge, access to evidence and the examination of witnesses.
The applicants, senior executives at Kaupping Bank, were accused of manipulating the market due to unsecured loans. The case file against them consisted of a plethora of documents, and a judge, whose son was a legal adviser to that bank, participated in the composition of the Court of Justice.
The European Court of Human Rights ruled unanimously that there had been a violation of the fair trial because the existence of a relative of the judge who participated in the composition of the court with an employee of the Bank was sufficient to raise questions regarding its impartiality with a vote of 6 against 1. There was a violation of Article 6 (1) and (3) for not having access to the documents in the case file because the lawyers did not properly deal with them and it was not the court’s responsibility to do so and unanimously ruled that it did not constitute a violation of the fair trial, the non examination of a witness that was not considered essential and that there was no violation of Article 8 (privacy violation) because it did not prove that the defendants’ telephone calls with their lawyers were being monitored.
Article 6 par. 1
Article 6 par. 3
The applicants, Sigurður Einarsson, Hreiðar Már Sigurðsson, Ólafur Ólafsson, and Magnús
Guðmundsson, are Icelandic nationals born in 1960, 1970, 1957 and 1970 respectively. They live in
Reykjavík (Mr Einarsson), Luxembourg (Mr Sigurðsson and Mr Guðmundsson), and Pully, Switzerland
Mr Einarsson was the chairman of Kaupþing, Mr Sigurðsson was chief executive officer, Mr Ólafsson
was the majority owner of a company which indirectly owned another company which was
Kaupþing’s largest shareholder, while Mr Guðmundsson was the chief executive of the bank’s
In September 2008 Kaupþing announced that a company owned indirectly by Sheik Mohammed bin
Khalifa Al Thani, a member of Qatar’s royal family, had bought 5.01% of its shares. An investigation
revealed that the funds for the purchase had been provided in loans by Kaupþing itself. None of the
loans had had the necessary approval of Kaupþing’s Credit Committee and no or insufficient security
had been provided for them.
The Financial Supervisory Authority lodged a complaint with the Special Prosecutor, appointed to
investigate possible crimes linked to the collapse of Iceland’s banking sector. In February 2012 the
Special Prosecutor issued an indictment against the applicants.
After proceedings in the District Court and the Supreme Court, which ended in February 2015, Mr
Ólafsson was found guilty of market manipulation while the others were convicted of that offence
and of breach of trust. Three of them sought to have the proceedings reopened, but in January 2016
the Committee on Reopening Judicial Proceedings rejected their applications.
During the criminal proceedings the applicants complained about denial of access to documents
collected during the investigation, about not being able to question two particular witnesses, and
that the authorities had tapped their conversations with their lawyers.
THE DECISION OF THE COURT
Article 6 § 1
The Court observed that the applicants had had the right under domestic law to challenge the
Supreme Court judge whose wife had been on the board of the Financial Supervisory Authority until
January 2009, indeed, they had been given an express opportunity to do so.
However, their lawyers had explicitly stated that they had no objections to the judge on that ground,
which had amounted to an unequivocal acceptance of his participation. This part of the complaint
was therefore manifestly ill-founded and had to be declared inadmissible.
In contrast, the defence had never been officially notified that the same judge’s son had worked at
the bank before and after its collapse. The fact the applicants’ lawyers had known the son or that Iceland’s financial community was small, as submitted by the Government, did not amount to the defence having been put on notice of an issue of a lack of impartiality.
Nor had the defence expressly stated that it had no objection to the judge taking part in the case
despite this particular family link. This complaint was therefore admissible. The Court reiterated its
tests of subjective and objective impartiality, the first concerning a judge’s personal interest, the
second relating to whether a court or its composition provided sufficient guarantees of impartiality.
The Court noted that the judge’s son had worked at Kaupþing from 2007. He was subsequently the
head of the legal department of the Resolution Committee and the Winding-Up Committee from
2008 to 2013, during the investigation into the applicants, their trial and civil proceedings brought by
the bank against two of them. He had continued as a consultant to the bank while the applicants’
case was being dealt with by the Supreme Court.
That family link was enough to create objectively justified fears about the Supreme Court judge’s
impartiality in the applicants’ criminal appeal proceedings, a doubt that could have been harboured
by all the applicants, even if civil proceedings by the bank had only been brought against two of
them. There had therefore been a violation of Article 6 § 1.
Article 6 § 1 and 3 (b)
The case had involved several sets of documents: a “full collection” of all the documents and data
gathered by the prosecution; “tagged documents” found to be relevant to the case after a search of
the full collection by investigators using the Clearwell e-Discovery system; and documents which had
been further searched manually and with Clearwell and included in the investigation file. Lastly,
there had been a file created as the evidence in the case for the trial court.
The Court noted that the applicants had not been denied access to the actual evidence used in court.
Their complaint focussed rather on a lack of access to the full collection and the fact that the
prosecution alone had determined the relevance of the filtered or “tagged”, documents.
It accepted that the full collection had been massive and that the prosecution had had to reduce it.
In principle, the defence in such circumstances should also have the opportunity to define criteria of
what might be relevant. However, the applicants had not pointed to specific issues which more
searches could have resolved and it was difficult to accept a “fishing expedition” had been justified.
The Court reiterated that prosecution authorities should disclose all the evidence they have for or
against defendants. However, in this case the prosecution itself had not known what was in the full
collection and so there had been no withholding of evidence or “non-disclosure” in the classic sense.
The situation was different with the “tagged” data as it had been searched and subsequently
selected by investigators. The criteria for the searches had been defined by the prosecution itself,
without the supervision of the courts, a way of proceeding which the Court had previously found to
be incompatible with the Convention (Rowe and Davis v. United Kingdom).
Furthermore, the prosecutors had refused to provide the defence with lists of documents,
particularly those which they had tagged, on the grounds in particular that the lists did not exist.
While the Court agreed with the Supreme Court’s findings that domestic law did not require the
police to create documents which did not exist, it found that it would have been possible and
appropriate to allow the defence to carry out further searches in the tagged data. A refusal of such a
search could therefore impinge on the right to adequate facilities to prepare a defence.
However, despite their complaints about this issue, the applicants had never sought a court order
for access to the full collection of data or for further searches and had never suggested more
investigative measures. The Supreme Court had rejected their complaints about this issue for the
very reason that they had not sought a court order for such actions. Indeed, a court review of such a
request was an important safeguard in deciding whether access to data should be granted.
The Court noted that the applicants had not provided any specific details about the type of evidence
they had been seeking and held that the lack of access to the data in question had not been such as
to deny them a fair trial. There had therefore been no violation of this provision.
Article 6 § 1 and 3 (d)
The applicants complained that the authorities had not done enough to ensure that two possible
defence witnesses, Sheik Al Thani and his relative and adviser Sheik Sultan, testify in court or by
video-link. The men had given statements to the authorities, but had refused to be further involved.
The Court examined this complaint under its case-law on the rights of defendants to call witnesses
on their behalf, as recently clarified in the Grand Chamber judgment Murtazaliyeva v. Russia.
Using that case’s three-pronged test, the Court found that the applicants’ reasons for having the
men testify had been vague and unsubstantiated. The Supreme Court had also considered the
relevance of the testimony and had provided adequate reasons for not examining them. There had
been nothing arbitrary or manifestly unreasonable in the domestic decision not to rely on their
statements in a case where a large amount of other evidence had been taken into account.
The Court concluded that there had been no violation of this provision of the Convention.
The applicants complained that telephone calls to their lawyers had been tapped. The Court first
found that neither Mr Einarsson nor Mr Ólafsson had supplied specific details, thus declaring their
complaint unsubstantiated and inadmissible as manifestly ill-founded.
Mr Guðmundsson had not complained in the domestic courts under Article 8, either to the Supreme
Court or in a civil action. Mr Sigurðsson had relied on that provision before the Supreme Court, but
that body could not provide an effective remedy for any such violations in criminal proceedings. He
had brought a civil action, which could provide a remedy, but it was not clear whether he had
appealed against a first-instance judgment rejecting his claim.
Both men’s complaints were therefore inadmissible for non-exhaustion of domestic remedies.
Just satisfaction (Article 41)
The Court held that the finding of a violation was sufficient just satisfaction for any non-pecuniary
damage. It awarded 2,000 euros (EUR) to each applicant in respect of costs and expenses.
Judge Pavli expressed a partly dissenting opinion(echrcaselaw.com).