The criminal responsibility of the Prime Minister of Iceland for the major banking and financial crisis
JUDGMENT
Haarde v. Iceland 23.11.2017 (no. 66847/12)
SUMMARY
The applicant is a former Prime Minister of Iceland who was impeached for negligence on account of
his handling of the country’s 2008 banking crisis and found criminally liable. He complained that his
trial, which was initiated after a Parliament vote, had not been fair and that the legal provisions used
for his criminal conviction had been vague and unclear.
The Court examined the totality of the proceedings against Mr Haarde, including: the pre-trial
investigation by a Parliament committee and Parliament’s later decision to impeach him; the
independence and impartiality of the Court of Impeachment; and the trial before that court and its
judgment.
Overall, the Court concluded that the proceedings had been fair and that Mr Haarde had suffered no
violations of his rights. In particular, it did not find that the pre-trial collection of evidence had been
deficient to the detriment of Mr Haarde or that Parliament’s eventual vote to proceed with the
impeachment had been political or arbitrary. Moreover, the Court of Impeachment had been
sufficiently independent, the indictment had been clear and the court had provided sufficient
reasoning for its guilty verdict.
As to the clarity of the legal provisions, the Court considered that the offence of which Mr Haarde
had been convicted had been sufficiently defined in law, as was the possibility that he could be
found criminally liable under them.
PROVISIONS
Article 6
Article 7
PRINCIPAL FACTS
The applicant, Geir Hilmar Haarde, is an Icelandic national who was born in 1951 and lives in
Reykjavik (Iceland). He was Prime Minister of Iceland from 2006 to 2009.
Iceland’s three main banks collapsed in October 2008. As the crisis unfolded, Mr Haarde proposed a
bill to Parliament on 6 October 2008, which gave the authorities the power to seize control of the
banks, which duly took place over the following days. Parliament set up a Special Investigation
Commission (SIC) in December 2008 to investigate and analyse the crisis. One of its remits was to
assess whether mistakes or negligence had occurred in the course of implementing laws and rules
on financial activities in Iceland and, if so, who had been responsible. It was not to investigate
criminal conduct, but had to inform the State Prosecutor of any suspicions of such conduct or of
potential breaches of official duty.
Mr Haarde testified to the SIC in 2009 and in February 2010 it informed him that it considered that
he had acted negligently. It asked him to submit a written statement in reply, which he did. In April,
its official report blamed Mr Haarde and two other former ministers for failing to respond appropriately to the economic danger caused by the banks’ deteriorating situation. In the meantime, Mr Haarde had resigned and a new government had taken office.
In 2009 Parliament also formed an ad hoc committee to examine the SIC’s report and decide
whether there were grounds for impeachment proceedings. Composed of nine members
representing all the parliamentary party groups, the committee examined the SIC report, held
meetings, received expert opinions and gathered evidence such as Government minutes and emails.
Mr Haarde also submitted comments. The committee eventually submitted a proposal for
impeachment proceedings against Mr Haarde and three other former ministers, but only the
proceedings against Mr Haarde were approved in a Parliament vote in September 2010.
The Court of Impeachment which tried Mr Haarde was composed of professional and lay judges and
in May 2011 he was indicted on six counts. The court later upheld an application by Mr Haarde to
dismiss two of the counts. In April 2012 it acquitted him of three counts but found him guilty in a
majority decision of gross negligence under Article 17 of the Constitution in conjunction with section
8(c) of the Ministerial Accountability Act of failing to hold ministerial meetings on “important
government matters” ahead of the crisis. In particular, the court considered it established that a
major danger had been facing the banks and the State Treasury as early as February 2008 and that
Mr Haarde had to have been aware of the danger. However, it had only been discussed in the last
four of 52 ministerial meetings that had been held between February and October 2008.
He was not sentenced to any punishment and the State was ordered to bear all the legal costs. The
judgment was not subject to appeal.
THE DECISION OF THE COURT
Article 6 (right to a fair trial)
In its examination of the pre-trial proceedings – including the investigation by the special Parliament
committee, Parliament’s decision on his impeachment and the actions of Parliament’s prosecutor –
the Court did not find anything in the way the case had been handled that had affected Mr Haarde’s position that it had made the rest of the process unfair. In particular, although political preferences
might have played a role in Parliament’s vote on bringing charges, the steps leading to his indictment
had not been arbitrary or political to such an extent that they had prejudiced the fairness of the trial.
The Court found that the domestic Court of Impeachment had met the requirements of
independence and impartiality enshrined in the Convention, even if it had included lay judges who
had been appointed by Parliament. The Court noted in particular that the lay judges had been under
an oath to act impartially and that it had not been shown that they had had any political affiliations
concerning the subject matter of the case.
The Court also evaluated the trial itself. It noted that Mr Haarde had been held criminally liable
under Article 17 of the Constitution of Iceland read together with section 8 (c) of the Ministerial
Accountability Act, and that the offence imputable to him had been one of omission. Reiterating that
it was not called upon to substitute its own assessment of the evidence for that of the domestic
court, the Court considered: that the offence of which Mr Haarde had been found guilty had been
sufficiently described in the count of the indictment concerned; that it had been covered by the
prosecution’s arguments; and that he had been able to respond to those arguments. The domestic
court had also set out the factual and legal reasoning for the conviction and had not strayed beyond
the case as put to it by the prosecution.
Article 7 (no punishment without law)
The Court noted that the domestic court had examined in-depth the constitutional issues at stake,
including Mr Haarde’s own arguments. The Court also observed that Article 17 was a provision of
central importance in Iceland’s constitutional order. It agreed with the domestic court that that
provision could not be regarded as lacking in sufficient clarity, even though the notion of “important
government matters” that the former prime minister had been found guilty of neglecting could be a
matter of interpretation.
Overall, the Court found that the conclusions drawn by the Court of Impeachment on the meaning of
the provisions and their application to Mr Haarde had been well within its remit to interpret and
apply national law, and that the offence of which he had been convicted was sufficiently defined in
law. That meant that it had been possible for him to have reasonably foreseen that his conduct
would make him criminally liable under the Constitution and the Ministerial Accountability Act.
Separate opinion
Judge Wojtyczek expressed a partly dissenting and partly concurring opinion. The opinion is annexed
to the judgment (echrcaselaw.com editing).
