Conviction of the applicant by the Second Instance Court, following an appeal brought by the Prosecutor in an acquittal decision. The court has violated the principle of fair trial because it did not re-examine the co-defendants and witnesses, but was content with their initial statements.

JUDGMENT 

Júlíus Þór Sigurþórsson v. Iceland 16.07.2019 (no. 38797/17)

see here

SUMMARY

Unfair competition, criminal conviction.

The applicant was accused of unfair competition on collusion between corporate materials prices. He was acquitted at first instance but the Prosecutor appealed. The Second Instance Court, although was requested, did not re-examined the co-defendants and witnesses, but relied on the apology and the testimony they had given at first instance and condemned the applicant.

The Court held that there has been a violation of the fair trial because if the direct assessment of the evidence is considered necessary, the Second Instance Court has a duty to take positive action for this purpose, even if the accused did not ask for the repeat. Moreover, the applicant’s conviction was imposed without the Court having the opportunity to judge its character and personality, so there was a violation of Article 6 & 1.

PROVISION 

Article 6 par. 1

PRINCIPAL FACTS 

The applicant, Júlíus Þór Sigurþórsson, is an Icelandic national who was born in 1962 and lives in
Kópavogur (Iceland).

The case concerned his conviction for breaching competition law when working in the timber sales
department of a hardware company.

In 2014 the police conducted an investigation into price collusion between three hardware
companies. During the investigation, they were authorised by the courts to intercept and record
telephone calls between the three companies.

The applicant, who was working with one of the companies, was charged with price collusion on the
basis of a telephone conversation he had with B., an employee of one of the other companies.

He was acquitted at first-instance after a hearing at which oral testimony was given by the
defendants and witnesses. The first-instance court accepted the applicant’s testimony that he had
not made any kind of agreement with B., finding that it was supported by testimony from a coaccused and one of the witnesses.

In 2016, however, the Supreme Court overturned the acquittal, criticising the manner in which the
first-instance court had taken evidence, in particular by allowing the defendants to be present at one
another’s testimony and failing to differentiate between their status as accused and as witnesses.

It went on to find that the applicant and B. had seriously breached competition law by encouraging
one another to keep the prices of hardware items high. The applicant was given a suspended
sentence of nine months’ imprisonment.

Relying on Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights, the
applicant complained that, after his acquittal at first-instance, he had been convicted by the
Supreme Court without the defendants or witnesses being reheard.

THE DECISION OF THE COURT… 

The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any specific rules on the admissibility of evidence or the way evidence should be assessed, which are therefore primarily matters for regulation by national legislation and the domestic courts.

As to the scope of this case, the Court notes from the outset that the applicant complained, with reference to the general right to a fair hearing in Article 6 § 1 of the Convention, that the Supreme Court had re-evaluated the oral evidence without hearing either the applicant in person or the witnesses.

In the present case, the Court notes that the applicant was acquitted by the District Court after a full adversarial hearing at which evidence, including oral testimony of the defendants and witnesses, was taken. The prosecution appealed inter alia against the applicants acquittal to the Supreme Court, which held a hearing at which the defendantsrepresentatives presented oral arguments. The Supreme Court had full jurisdiction to examine questions of fact as well as questions of law, including the evidentiary value of documentary evidence; however, it could not re-evaluate oral evidence given before the District Court without rehearing it. The Supreme Court, without rehearing the oral evidence, convicted the applicant of criminal price collusion and sentenced him to 9 months imprisonment, suspended. The question before the Court, therefore, is whether, in these circumstances, the Supreme Court could, as a matter of fair trial, properly examine the issues to be determined without a direct assessment of the evidence given by the defendants and the witnesses in person.

 It does not appear that the Supreme Court excluded the oral testimony entirely, as suggested by the applicant, but it nevertheless took a clear position on the reliability of that evidence – to which it made no further reference in its reasoning concerning the applicant – and thus of its evidentiary value in the overall assessment of the applicants guilt or innocence. To that extent, the Court does not discern any substantive distinction between the reliability and the credibility of the oral testimony in this context. The fact is that the Supreme Court at the very least disregarded to a considerable extent part of the evidence which had been taken into account by the District Court when it acquitted the applicant and based his conviction primarily, if not exclusively, on its own assessment of the contents of the telephone conversation between the applicant and B. While the Supreme Court was entitled under domestic law to re-evaluate the tangible evidence, its reliance on that evidence while wholly or largely discounting the explanations provided in the oral testimony inevitably meant that it “had to some extent to make its own assessment for the purposes of determining whether [the facts] provided a sufficient basis for convicting the applicant”. In the Courts view, this cannot be regarded as an application of purely legal considerations to the established facts; on the contrary, it involved a fresh evaluation of the evidence as a whole, resulting in the conviction of the applicant on the basis of evidence which differed from that on which the District Court had relied in order to acquit the applicant. It follows that, as a matter of fair trial and taking into account what was at stake for the applicant, the Supreme Court could not properly examine the issues to be determined on appeal without a direct assessment of the evidence given orally by the applicant, his co-accused and one of the witnesses, which was relied upon by the District Court in its overall probative assessment of the context in which the telephone conversation between the applicant and B. on 28 February 2011 took place. In the alternative, the Supreme Court had the option of quashing the District Courts acquittal of the charges laid against the applicant and referring the case back for a retrial due to the deficient manner in which the Supreme Court considered that oral testimony had been taken at first instance.

Finally, the Court observes that a prison sentence, albeit suspended, was imposed on the applicant without the Supreme Court having been in a position to assess his character directly. In that respect, the Supreme Courts position was similar to that of the Norwegian Supreme Court in Botten, namely it had full jurisdiction as regards sentencing, an aspect which was capable of raising issues going to matters such as personality and character, and it had not had the benefit of a prior assessment by the trial court which had heard the applicant.

In the light of the foregoing, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in the present case.

Just satisfaction: The Court held that the finding of a violation constituted in itself sufficient just
satisfaction for any non-pecuniary damage sustained by Mr Sigurþórsson (echrcaselaw.com).


ECHRCaseLaw

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