Ex officio appointment of lawyers and non-acceptance of their appointment. The lawyers were sentenced to a fine in absentia for contempt of the Court. No infringement of the ECHR.

JUDGMENT 

Gestur Jónsson and Ragnar Halldór Hall v. Iceland 30.10.2018 (no.  68273/14 and 68271/14)

see here

PROVISIONS

Article 6

Article  7

Article 2 of Protocol n. 7

SUMMARY

The case concerned the imposition of fines on the applicants after they resigned as defence counsel in a criminal case. The Court found in particular that the applicants had been fined in absentia, but that they had had a sufficient remedy in the form of appeal proceedings before the Supreme Court that had provided them with the opportunity to obtain a fresh factual and legal determination of the charges against them. It further found that the application of the domestic provisions, as well as the amount of the fines in question, could have been reasonably foreseen by Mr Jónsson and Mr Hall.

PRINCIPAL FACTS

The applicants, Gestur Jónsson and Ragnar Halldór Hall, are two Icelandic nationals who were born in 1950 and 1948 respectively and live in Reykjavík (Iceland). Mr Jónsson and Mr Hall are practising attorneys in Iceland. They were appointed as defence lawyers for two defendants in a criminal case in March 2012. In April 2013 they requested that their appointment as defence counsel be revoked, which was refused by the District Court.

Subsequently,, in a District Court judgment against their former clients, the applicants were fined, in their absence, 1,000,000 Icelandic krónur (approx. 6,200 euros each) for contempt of court and for causing unnecessary delays in the proceedings. The applicants had not been summoned to the trial hearing and had not been informed of the intention of the court to fine them. The Supreme Court confirmed the imposition of fines.

THE DECISION OF THE COURT 

Article 6 § 1

The Court reiterated that it used the “Engel criteria” when assessing whether or not there was a
“criminal charge”. It noted that the Icelandic Supreme Court had concluded that the fines imposed
amounted to a “criminal penalty”. Therefore, and having regard to the Engel criteria, the Court held
that the applicants’ offence should be regarded as having been based on a “criminal charge” within
the meaning of Article 6 § 1 (criminal limb).

It was not disputed by the parties that Mr Jónsson and Mr Hall had been tried in absentia by the
District Court. The Court therefore examined 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, in accordance with the case-law of the Court (see
Sejdovic v. Italy).

The Court observed that Mr Jónsson and Mr Hall had appealed to the Supreme Court and submitted
documentary evidence on appeal. An oral hearing had been held before the Supreme Court where
the applicants had had full legal representation. Furthermore, the court had heard counsel for the
defence and the public prosecutor. The Supreme Court had had full jurisdiction to examine
questions of law and fact.

The Court concluded that the applicants had been given a sufficient opportunity to obtain a fresh
factual and legal determination of the merits of the charges against them before the Supreme Court,
which had allowed them to make their case in a way which was compliant with Article 6 § 1.
It found that the Supreme Court’s interpretation and application of Icelandic law to the applicants’
case could not be considered arbitrary or manifestly unreasonable since Article 6 did not require the
Supreme Court to act of its own motion to ask Mr Jónsson and Mr Hall to give statements or have
witnesses examined.

Article 7

The Court pointed out that the case seemed to have been the first of its kind brought before the
Supreme Court on appeal due to the in absentia imposition of fines on defence counsel who had
resigned in disregard of the orders of a trial court. It reiterated that where the domestic courts were
called upon to interpret a provision of criminal law to a set of facts for the first time, an
interpretation of the scope of the offence which was consistent with the essence of the offence
must be considered foreseeable.

The Court noted that the interpretation given to the provision by the national courts did not
contravene the very essence of the offence in question since the wording of the provision did not
exclude the imposition of a fine on defence counsel who had been replaced, had resigned or who
had been relieved of his or her duties. Consequently, it did not accept the applicants’ argument that
the provisions, as applied by the Supreme Court to the facts of the case, lacked foreseeability within
the meaning of Article 7.

The Court also held that the mere fact that a provision of domestic law did not set the maximum
amount which could be imposed in the form of a fine did not, as such, run counter to the
requirements of Article 7. Moreover, the Court noted that the case was the first of its kind and one
in which the Supreme Court had considered that the nature and gravity of the applicants’ actions
warranted the imposition of fines which were higher than in prior cases with different facts.

Therefore, the Court found that, in the light of the conclusions of the Supreme Court, the amount of
the fines in question was consistent with the essence of the offence and could have been reasonably
foreseen by Mr Jónsson and Mr Hall.

Article 2 of Protocol No. 7

The Court rejected the complaint under Article 2 of Protocol No. 7 for non-exhaustion of domestic
remedies since the Supreme Court was not provided with the opportunity of addressing and thereby
preventing or putting right the Convention violation alleged against it. It could not be deduced,
either from the judgment of the Supreme Court or from the accompanying documentation, that Mr
Jónsson and Mr Hall had formulated their claims and grounds in a way that they could be considered
to have sufficiently invoked their rights under Article 2 of Protocol No. 7(echrcaselaw.com editing). 


ECHRCaseLaw
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