Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 12170/86

Jón KRISTINSSON

against

ICELAND

REPORT OF THE COMMISSION

(adopted on 8 March 1989)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-17) ............................ 1

A. The application

(paras. 2-4) ...................................... 1

B. The proceedings

(paras. 5-12) ..................................... 1

C. The present Report

(paras. 13-17) .................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 18-31) ............ 3

A. The particular facts of the case

(paras. 18-29) .................................... 3

B. Relevant domestic law

(paras. 30-31) .................................... 5

III. OPINION OF THE COMMISSION (paras. 32-58) .............. 12

A. Point at issue

(para. 32) ........................................ 12

B. The applicant's status as "victim"

(paras. 33-40) .................................... 12

C. Article 6 of the Convention

(paras. 41-58) .................................... 13

Concurring opinion by Mr. H. Vandenberghe ................... 18

APPENDIX I: History of the proceedings before the Commission 19

APPENDIX II: Decision on the admissibility of the application 20

I. INTRODUCTION

1. The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, Jón Kristinsson, is an Icelandic citizen born

in 1916. He resides at Akureyri, Iceland. Before the Commission he is

represented by Mr. Eirikur Tómasson, a lawyer practising in Reykjavik,

Iceland.

3. The Government of Iceland are represented by Mr. Thorsteinn

Geirsson, Ministry of Justice, as Agent.

4. The case concerns the proceedings relating to criminal charges

brought against the applicant. Before the Commission the applicant

complains that the judge in question had previously dealt with the

applicant's case in his capacity as deputy chief of police. The

applicant contends therefore that the tribunal could not be considered

to be impartial within the meaning of Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 10 April 1986 and registered

on 20 May 1986. The Commission considered the case on 13 October 1986

and decided to give notice of the application to the respondent

Government in accordance with Rule 42, para. 2 (b) of its Rules of

Procedure and to invite them to present, before 9 January 1987, their

observations in writing on the admissibility and merits of the

application.

6. Having been granted an extension of the time-limit, the

Government submitted their observations on 6 February 1987. The

applicant's observations in reply were submitted on 16 March 1987.

7. Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 18 September 1987.

8. On 13 July 1987 the Commission decided to invite the parties

to appear before it at a hearing on the admissibility and merits of

the case.

9. The hearing took place on 13 October 1987. The applicant was

represented by Mr. Eirikur Tómasson as counsel. The Government were

represented by Mr. Thorsteinn Geirsson of the Ministry of Justice

as Agent and Mr. Gunnlaugur Claessen as counsel.

10. Following the hearing, the Commission declared the applicant's

complaint under Article 6 of the Convention admissible.

11. The parties were then invited to submit any additional

observations on the merits of the case which they wished to make.

On 14 March 1988 the applicant informed the Commission that he did not

wish to submit any further evidence or additional observations on the

merits. No further observations on the merits of the case were

received from the Government.

12. After declaring the case admissible the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. Consultations with the parties took place between

3 February 1988 and 1 February 1989. The Commission now finds that

there is no basis upon which such a settlement can be effected at

present.

C. The present Report

13. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. JÖRUNDSSON

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

Mr. C. L. ROZAKIS

Mrs. J. LIDDY

14. The text of this Report was adopted on 8 March 1989 and is now

transmitted to the Committee of Ministers of the Council of Europe in

accordance with Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

16. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

17. The full text of the pleadings of the parties, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular facts of the case

18. On 20 June 1984 two police officers engaged in monitoring

traffic speed by radar in the vicinity of the City of Akureyri

concluded that the applicant had driven his vehicle at a speed of

68 km/h in a zone where the official speed limit was 50 km/h. The

applicant did not dispute the result of the radar check, although he

considered the measurements improper, since they were taken at the

foot of a steep hill.

19. On 26 June 1984 two other police officers stopped the

applicant in his car when they concluded that he had not observed a

stop sign at an intersection in Akureyri. The applicant protested,

maintaining that he had in fact brought his vehicle to a halt on this

occasion.

20. After having received and examined the police officers'

reports, the chief of police of Akureyri, who is also the town

magistrate, concluded, in accordance with Section 112 of the Code of

Criminal Procedure, no. 74 of 21 August 1974, that the sanction for

the alleged violations of the Traffic Act would not exceed 12,000

Icelandic crowns. In two letters of 10 and 12 July 1984, the chief of

police therefore afforded the applicant the opportunity of settling

both of the above cases by paying a fine for the alleged breaches of

the Traffic Act, determined by the chief of police and totalling 1,720

Icelandic crowns. It was stated in the letters that no further action

would be taken by the authorities if payment were received within two

weeks from the date of the letters. Both letters were signed by Mr.

SJ, acting as the deputy of the chief of police of Akureyri.

21. The applicant, however, did not accept this offer to settle

the alleged breaches of the Traffic Act, and he was therefore summoned

before the Akureyri District Criminal Court which had now taken over

the further investigation of the case. The applicant appeared before

the Court on 30 August 1984. The judge in charge of this preliminary

investigation was Mr. SJ, the same person who had earlier dealt with

the applicant's case as the deputy of the chief of police, now

representing the town magistrate of Akureyri in his capacity as

district court judge. The applicant declined to settle the case in

court without being formally indicted. He did not contradict the radar

speed measurement. On the other hand, he claimed that he did stop at

the stop sign.

22. Following this court hearing, the police officers who had

brought the complaints against the applicant were called to appear in

the District Criminal Court to give evidence. The judge in charge was

again Mr. SJ. At the conclusion of this preliminary court inquiry

which took place on 4, 12 and 21 September as well as on 29 October 1984,

Mr. SJ sent the case file and the evidence obtained to the public

prosecutor on 7 November 1984.

23. On 23 November 1984 the public prosecutor issued an indictment

against the applicant for his alleged violations of the Traffic Act

and the case was sent to the District Criminal Court of Akureyri for

adjudication.

24. On 4 December 1984 the applicant was summoned to appear

before the District Criminal Court where the indictment was

served on him. Furthermore, he was confronted with the evidence given

by the four policemen and he had the opportunity to comment on their

statements. In particular as regards the alleged speeding offence, the

applicant pointed out that it was not correct that he had admitted to

driving too fast whereas it was correct that he could not contradict

the results of the radar measurement. At the request of the applicant,

Mr. SJ, acting as district court judge and representing the town

magistrate of Akureyri, adjourned the case in order to enable the

applicant to decide whether he wished to have counsel appointed for

his defence.

25. On 10 December the applicant again appeared in the District

Criminal Court where he declared that he did not wish to have counsel

appointed for his defence. Furthermore, he did not request further

evidence to be obtained and he accepted that the case was ready for

adjudication.

26. On 27 December 1984 Mr. SJ pronounced judgment in the case.

The conclusion of the judgment was read out in Court in the

applicant's absence. The applicant was found guilty on both counts

and sentenced to pay a fine of 3,000 Icelandic crowns to the Icelandic

State Treasury as well as all costs.

27. On 4 January 1985 the judgment was served on the applicant.

He appealed against it to the Supreme Court of Iceland. Before the

Supreme Court the applicant's primary claim was that the judgment be

set aside and the case sent back to the District Criminal Court for

retrial. The applicant argued that the enquiry into the case in the

District Court had been inadequate, and that the case had not been

heard by an impartial judge since the procedure whereby the same

official was involved in the case both as chief of police (deputy

chief of police) and as judge (deputy judge) conflicted with the

principles stated in Sections 2 and 61 of the Icelandic Constitution

and Article 6 of the European Convention on Human Rights.

28. In the Supreme Court the applicant was represented by counsel.

29. On 25 November 1985 the Supreme Court pronounced its judgment

by which the applicant was acquitted of the charge of non-observance

of the stop sign. The ruling of the District Criminal Court as regards

the charge of exceeding the speed-limit was, however, upheld in that

the Supreme Court found that this charge had been proved by the

applicant's own statements as well as the other evidence obtained. For

this violation of the Traffic Act the applicant was sentenced to pay

1,500 Icelandic crowns. He was also ordered to pay all costs of the

District Court proceedings and the appeal proceedings. Regarding the

applicant's claim concerning the partiality of the judge of the

District Criminal Court, the Supreme Court stated:

"Under the Icelandic court system, judicial powers in district

courts outside Reykjavik are vested in town and county

magistrates who serve collaterally as chiefs of police. The

District Criminal Court decision cannot be set aside on the

ground that the deputy town magistrate of Akureyri tried the

case in question. Furthermore, no specific facts have been

established which would disqualify the town magistrate or his

deputy."

B. Relevant domestic law

30. According to Section 59 of the Icelandic Constitution the

judicial system shall be regulated by law. Act no. 74 of 27 April 1972

on the District Judicial Organisation and the Police and Customs

Administration regulates the judicial system. The relevant parts of

the Act read as follows:

(Translation provided by the Government)

"Section 1. In Reykjavík there shall be a civil court

judge's office, a city magistrate's office, a criminal court

judge's office, and offices of the chief of police and of the

director of customs, as well as of the state criminal

investigation police.

Outside Reykjavík there shall be offices of county and town

magistrates.

In Bolungarvík and in Keflavík Airport there shall be

offices of chiefs of police.

Section 2. Subject to Section 4, the office of the civil

court judge in Reykjavík is, i.a., charged with cases of

general private litigation, including presidency in cases

concerning real estate, appointment of appraisers and

surveyors in court and out of court, civil marriage, divorce

cases, decisions in cases in respect of support, and the

commissioning of civil servants, as practised until now.

From eight to twelve judges, as the Minister of Justice may

decide, shall serve with the Reykjavík civil court judge's

office. One of them shall be the chief judge, who also shall

be director of the office.

Section 3. The office of the Reykjavík city magistrate is,

i.a., charged with enforcement proceedings, auctions, probate

cases, the maintenance of real estate records, the

registration of firms and companies, the registration of

ships, notarial duties, supervision of trusteeship for minors,

and voting outside polling stations, as provided by law. ...

From five to eight city magistrates, as the Minister of

Justice may decide, shall serve with the office of the

Reykjavík city magistrate, and one of them shall be the chief

city magistrate, who shall also be director of the office.

Section 4. The office of the Reykjavík criminal court

judge is, i.a., charged with criminal cases, cf. Act no. 74 of

1974, Sections 1 and 2, paternity cases, decisions in respect

of domicile, orders in respect of maintenance liability and

decisions according to law in respect of the local authorities

collection agency. ...

From five to nine criminal court judges, as the Minister of

Justice may decide, shall serve with the office of the

Reykjavík criminal court judge. One of them shall be the chief

judge, who shall also be director of the office.

Section 5. The chief of police of Reykjavík is in control

of the police, other than the state criminal investigation

police, is in charge of cases of ships stranding, of

immigration, of the issuing of passports, and of other matters

as provided by law. The duties of the state criminal

investigation police are determined by special legislation.

Section 6. The director of customs in Reykjavík is in

charge of customs enforcement, the signing on of ships' crews,

the collection of taxes and customs duties to the State

Treasury or other parties as determined by the Minister of

Finance or provided by law, with the exception of the

collection of dues assigned to a common collection agency,

cf. Act no. 68 of 1962.

Section 7. Outside Reykjavík, the offices of county and

town magistrates are charged with the duties enumerated in

Sections 2-6, unless otherwise provided by law. These offices

are also charged with other matters as determined by the

Minister or provided by law.

With that judge, from one to five judges shall serve with

the office of the town magistrate of Hafnarfjördur,

Gardakaupstadur and Seltjarnarnes and the county magistrate of

Kjósarsysla, as the Minister of Justice may decide.

The Minister of Justice may permit that with those judges,

from one to three judges shall serve with each of the offices

of the town magistrate of Akureyri and the county magistrate

of Eyjafjardarsysla, and the town magistrate of Kópavogur.

The Minister of Justice may permit that with those judges,

one or two judges shall serve with each of the offices of the

town magistrate of Keflavík, Grindavík and Njardvík and the

county magistrate of Gullbringusysla, the town magistrate of

Selfoss and the county magistrate of Arnessysla and the town

magistrate of Vestmannaeyjar.

Where more than one judge serves with the above town and

county magistrates' offices, the town magistrate or county

magistrate shall be director of the office.

Judges commissioned to serve with the above town and

county magistrates' offices shall hold the titles of judges or

district court judges with the offices in question.

...

Section 15. As many deputies as the Minister of Justice

considers necessary, who meet the qualifications stated in

Article 33, cf. Item 6 of Article 32 of Act no. 85 of 1936,

shall serve with the above judges' offices.

The Minister of Justice may grant to deputies engaged for

service according to sub-section 1, who meet the

qualifications stated by law for permanent commission as

judges, a special commission for performing independently and

on their own responsibility the judicial functions entrusted

to them."

31. The Code of Criminal Procedure, no. 74 of 21 August 1974,

contains inter alia provisions concerning police investigations, the

treatment of various minor offences and the functions of district

court judges. The relevant parts of the Code read as follows:

(Translation provided by the Government)

"Chapter II. District Court Judges

Section 4. County magistrates outside townships, town

magistrates in townships outside Reykjavík, other judges

commissioned to serve within these offices, and criminal court

judges in Reykjavík, conduct the investigation in criminal

cases in court, hear them, and pass judgment.

Where a chief of police has been commissioned in areas

outside townships, his duties as regards criminal cases are

the same.

...

Section 15. A judge may have his authorised deputy conduct

the investigation of criminal cases in court and pass

judgments and decisions, if he meets the qualifications

prescribed by sub-section 1 of Section 33 of the law in

respect of district court procedure in civil cases.

Chapter V. Police and Initial Investigation

Section 32. County magistrates are chiefs of police

outside townships, town magistrates in townships outside

Reykjavík, and specially commissioned chiefs of police where

they have been commissioned. Where policemen have not been

specially designated, the parish chairmen assist the chief of

police.

Chiefs of police, including the director of the state

criminal investigation police, are in charge of law

enforcement, each within his area of office. They shall, when

they consider it appropriate or necessary, commence an

investigation owing to suspected offences, whether or not they

have received an information. In this regard, they are subject

to the orders of the public prosecutor.

The police (the state criminal investigation police)

conducts preliminary investigation of criminal cases, in so

far as other authorities or the courts or other authorities

are not charged with such investigation by law or custom. The

purpose of initial investigation is to collect all evidence

necessary to enable the prosecution authority subsequently to

decide whether a criminal case shall be filed, and to collect

evidence in preparation for the treatment of the case in

court, cf., however, Section 73.

The state criminal investigation police conducts initial

investigation in accordance with the provisions of law

relating to that agency.

...

Section 40. ...

Following initial investigation the person in charge of it

sends its transcripts to the public prosecutor. The public

prosecutor may order further investigative measures to be

taken, if he considers this necessary. Cases that may be

expected to be settled without prosecution according to the

provisions of Section 112 shall be sent by the chief of police

(the director of the state criminal investigation police) to

the judge in question. If the judge considers that Section 112

does not apply to cases thus received, he forwards them to the

public prosecutor for further decision.

Chapter X. General Provisions Concerning Investigation

of Criminal Cases in Court

Section 73. If measures are considered necessary for which

the actions of a judge are required by law, or are otherwise

necessary for the purposes of initial investigation while this

is being conducted, the chief of police or the director of the

state criminal investigation police may submit a petition for

such measures to the judge. The petition shall either be in

writing or submitted orally to a court in session, and

accompanied by the necessary documentation. The judge may

request that the chief of police or the director of the

state criminal investigation police submit the evidence or

take the action he considers necessary before he takes the

petition for decision.

If the judge considers that there are not sufficient

reasons to grant a petition for action by the court according

to sub-section 1, the chief of police or the director of the

state criminal investigation police may request that the judge

pass a formal decision on his refusal. The public prosecutor

may appeal such decision to a superior court according to the

rules governing summary appeal.

A chief of police who is also a criminal court judge may

commence initial investigation in court when he considers this

advisable.

Section 74. If the public prosecutor considers, following

the initial investigation conducted by the police, the state

criminal investigation police, or other parties (cf. Section

32), that a decision cannot be made as to whether or not a

criminal case shall be filed or in which way a case may be

closed, he may request an investigation to take place in court

in order to bring to light the information necessary for this

purpose.

...

During an investigation in court the judge is entitled to

the assistance of the police (the state criminal investigation

police), and may order specified investigative measures to be

taken by the police as necessary.

...

When the investigation in court has been completed the

judge shall as soon as possible have transcripts of the

investigation prepared and sent to the public prosecutor with

the case file.

Section 75. The judge shall, ex officio and independently,

investigate all the facts and issues of the case, even if

police have already investigated them and prepared reports on

them. If an accused person has confessed to an offence the

judge shall nevertheless investigate whether his confession is

true to fact.

The judge shall investigate all factors relating to the

guilt or the innocence of the accused, and all mitigating or

aggravating circumstances...

Chapter XIV. Juvenile Cases, Fines Set by Chiefs of Police

and Policemen, Settlements in Court, and Indictments

Section 112. A judge may, if this is not expressly

prohibited by law, close a criminal case without prosecution:

1. If an offence is of a very minor nature, the judge may

close the case by an admonition entered into the record, if

the accused acquiesces.

2. If an offence is conclusively proven and it is considered

that the penalty would not exceed a fine if the case were

adjudged, the judge may determine a suitable fine to be paid

within a specified period, upon the alternative of confinement

of suitable duration, and with the payment of costs, if the

accused accepts the judge's decision by his signature in the

record. If a conclusively proven offence shall have the effect

of deprivation of a licence to operate a motor vehicle or the

deprivation of a right to obtain such licence, such

deprivation may be ordered in the same way according to the

provisions of this Section for one year or a shorter period.

The offence in question shall be clearly but briefly entered

into the record, with the penal provisions violated, and, if

applicable, effects of repetition with regard to subsequent

offences. If a conclusively proven offence shall have the

effect of confiscation of property, the judge may, under the

same conditions as above, order confiscation. The judge may

also order confiscation by an entry in the record if the

accused cannot be found or is unknown, and the value of the

confiscated property does not exceed 20,000 (Icelandic) crowns.

If a chief of police receives an information concerning a

violation of the Traffic Act, the Law in respect of Alcoholic

Beverages, the Law in respect of Notification of Changes of

Residence, or of a police ordinance, and he considers that the

sanctions would not exceed a fine of 12,000 (Icelandic)

crowns, he may, within a month from receiving the information,

make an offer by letter to the accused to have the case closed

against the payment of a suitable fine within a specified

period, provided the accused accepts this decision by his

signature. If the accused declines or disregards this, the

chief of police refers the case to a judge. If such offence

shall have the effect of confiscation of property, such

confiscation may similarly be determined, if the value of the

property in question does not exceed 4,000 (Icelandic) crowns.

If a policeman observes a traveller on the road violating

the Traffic Act or a police ordinance, and his penalty is

considered not to exceed a fine of 1,200 (Icelandic) crowns,

he may fine him by a suitable amount to be paid by the accused

immediately or within a specified period, provided the accused

accepts this decision by his signature in the fine book. If

the fine is not paid within the period specified, an

information shall be forwarded to the judge in the usual

manner. The judge then invalidates the policeman's decision

and proceeds with the case according to law. If the

policeman's decision is considered contrary to reason the

judge, the public prosecutor, or the chief of police may

decide that the case shall be received again for treatment,

and the policeman's decision is then invalidated.

The public prosecutor provides the chief of police with a

list of offences with respect to which fines are allowed

according to sub-sections 2 and 3. The list shall provide

guidance concerning the amounts of fines for each type of

offence. The Minister of Justice issues rules concerning the

keeping of accounts for such cases and their treatment in

other respects.

...

Section 115. When the public prosecutor has received the

documentation concerning the investigation of a case and he

does not consider that there is a reason to request further

investigation, either according to Section 40, sub-section 8,

or according to Section 74 (an investigation in court), he

decides whether or not a criminal case shall be filed. If he

considers that the available evidence is insufficient or

unlikely to suffice for conviction, he takes no further

action, but else he may:

a. ...

b. ...

c. ...

d. issue an indictment against the accused person or persons.

...

The judge endorses the indictment with the time and place

for the filing of the case, and has it served on the defendant

in the usual manner or in a court session. When the indictment

is served on the defendant he shall be asked whether he wants

to defend his case or be defended by counsel, and, if so, by

whom.

Chapter XV. The Presentation and Treatment of Criminal

Cases in District Courts

Section 121. When the period specified in Section 115,

sub-section 4 or Section 117 has expired, the judge opens a

session of the court and files the case. He then exhibits the

transcripts of court hearings and other evidence that may be

available and can be exhibited in court. The defendant shall,

if possible, be made familiar with the evidence of which he

has not been informed already, so that he may be asked whether

he recognises that this concerns him or his case. If a counsel

shall be appointed for his defence, this shall be done during

this session, unless it has already been done. The defence

counsel, or the defendant, if he wants to defend himself on

his own, shall be handed the case documentation, a period

shall be specified for the preparation of the defence, and the

time of the next court session announced.

...

Section 122. A case shall be received for adjudication in

the court session held according to Section 121, if the

defendant appears in court and clearly confesses to the

alleged offence, in which case no further evidence need be

brought forth. The judge shall, however, at all times observe

the provisions of sub-section 1 of Section 75 of this Act.

Evidence shall be brought forth if the defendant denies the

charges in part or in whole, if the judge otherwise considers

this necessary, or if this is requested by the prosecution or

by the defendant.

Section 123. The judge decides each time whether a defence

shall be presented orally or in writing.

Section 124. In cases where a defence is to be presented

the defendant or his counsel may, before this is done, consult

the judge with special regard to any matter he considers to

stand in the way of a rightful judgment being rendered on the

merits of the case at that time, such as whether the case must

be dismissed from court, the procedure must be deferred

pending further investigation or further defence, or the judge

is disqualified, etc., and request the judge's determination.

The judge decides whether such motions shall be granted, by an

argumented decision if he considers that they shall not, and

by judgment if a claim for dismissal is granted.

If a motion is made for dismissal from court, the public

prosecutor shall be afforded an opportunity to state his views

before the judge passes his resolution.

Subject to the agreement of the public prosecutor, a

conclusion of denial may be summarily appealed to a superior

court.

Section 125. When all evidence has been brought forth and

a defence has been presented, the judge receives the case for

adjudication.

...

Chapter XXII. Appeal

Section 176. If a judgment is appealed at the request of a

defendant, penalties or other sanctions may not be increased

in severity, unless the prosecution authority also appeals the

judgment for this purpose.

...

Section 182. If the Supreme Court decides that the

investigation shall be continued there, the prosecution and

defence counsels and the persons to be questioned shall be

called to appear before the Court. The provisions of this Act

relating to the duty to testify and to provide information on

any matter the Court considers to be of relevance, apply as

provided for district court investigation and procedure.

Section 183. The Supreme Court may render a decision or a

judgment with respect to any matter concerning faults in case

preparation at the district court or supreme court levels,

district court procedure or supreme court case preparation or

procedure, before the case is argued there or at any stage of

argumentation such as whether a case shall be dismissed from

court, whether the district court judgment shall be voided, on

time-limits, on the judgment records, on the presentation of

further evidence, etc.

Section 184. If it becomes apparent while a case is being

argued or during the judges' further examination that further

evidence must be brought forth in addition to what has already

been made available, and it is considered that further

investigation may be of value, the Supreme Court may pass a

decision ordering the district court judge and the prosecution

and defence counsels to obtain information on the matters

specified in the decision and other matters that further

hearings may indicate.

Section 185. The Supreme Court dismisses a case owing to

faults in its preparation, such as if an indictment or a

notification to appear before the Court has not been served on

a party. The Supreme Court may void a district court judgment

if it considers the investigation or the case procedure

seriously faulty, and improvement by the methods described in

Sections 182 and 183 is considered less feasible.

III. OPINION OF THE COMMISSION

A. Point at issue

32. The point at issue is whether there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention, in that the Criminal District

Court of Akureyri, when convicting and sentencing the applicant on 27

December 1984, was not an "impartial tribunal".

B. The applicant's status as "victim"

33. Throughout the proceedings the Government have asked the

Commission to hold that the applicant cannot claim to be a victim of a

violation of Article 6 (Art. 6) of the Convention, as required by Article 25

(Art. 25) of the Convention. They maintain that the Supreme Court of Iceland,

viewing separately the two alleged offences, acquitted the applicant of the

charge of having disregarded the stop sign as the offence was not regarded as

proven. As the applicant accordingly sought and gained redress under the

national system available to him, he cannot in this respect claim to be a

victim of any possible violation of the Convention. Regarding the offence of

speeding, the Government maintain that the applicant was never a victim within

the meaning of Article 25 (Art. 25). He confessed to that offence and was

offered to have the matter settled against the payment of a fine, which is a

routine procedure. Before the Supreme Court he did not claim acquittal but only

a reduction in the penalty and this was granted by the Supreme Court.

34. The applicant has maintained that he did not confess to the charge of

exceeding the speed limit but he chose not to contradict the radar speed

measurement made by the police. Furthermore he contests that he was awarded

all the material relief he sought because he was found guilty by the Supreme

Court of the charge of exceeding the speed limit and sentenced to pay a fine.

Finally, he stresses that the Supreme Court rejected his primary claim of

partiality in the District Criminal Court, a defect involving matters of

internal organisation which was not cured by the higher court. Therefore, the

applicant maintains that he may claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention.

35. As regards the question of the applicant's status as "victim", the

Commission recalls its decision on the admissibility where it took cognizance

of the parties' submissions without, however, accepting the Government's

objection. It now adds the following considerations:

36. The possibility certainly exists that a higher or the highest court

might, in some circumstances, make reparation for an initial violation of one

of the Convention's provisions. This is precisely the reason for the existence

of the rule of exhaustion of domestic remedies contained in Article 26 (Art.

26) of the Convention. It becomes apparent in particular where the higher

court has rectified the specific defect which would otherwise have raised an

issue under the Convention. Likewise the Commission has previously held that

an applicant who has sought and gained redress in the national courts may not

subsequently or any longer claim to be a victim within the meaning of Article

25 (Art. 25) of the Convention (cf. No. 5575/72, Dec. 8.7.75, D.R. 1 p. 44 and

No. 8083/77, Dec. 13.3.80, D.R. 19 p. 223). This conclusion, however, can only

be drawn where the applicant is no longer affected at all, having been relieved

of any effects to his disadvantage, for example where he has been acquitted

unconditionally. The present applicant remained convicted on one count. He

may therefore still claim to be a victim of an alleged violation of Article 6

(Art. 6) of the Convention.

37. Under Article 6 (Art. 6) of the Convention everyone charged with a

criminal offence is entitled to certain rights irrespective of the evidence

against him. Even a person who admits his guilt because the evidence against

him is overwhelming, is entitled to these rights at his trial. The applicant

would only cease to be a victim within the meaning of Article 25 (Art. 25) of

the Convention if the Supreme Court had accepted his claim of lack of

impartiality.

38. The Commission recalls, however, that criminal charges were brought

against the applicant. He was tried and found guilty of the charges by the

District Criminal Court, a judgment which was upheld in part by the Supreme

Court. In such circumstances, and regardless of whether the evidence was such

that the applicant did not claim acquittal and furthermore actually obtained a

reduction of the fine, the State was not relieved from securing that the

applicant's trial was carried out in conformity with Article 6 (Art. 6).

39. Moreover, the particular complaint raised before the Commission relates

to the proceedings before the District Criminal Court of Akureyri, the basis of

the complaint being, in particular, the very composition of the Court. As

pointed out by the applicant, the alleged violation of the Convention involves

matters of internal organisation and the Supreme Court of Iceland did not cure

this alleged defect since it did not quash on that ground the judgment of the

District Criminal Court of 27 December 1984.

40. For these reasons, the applicant may claim to be a victim of a

violation of Article 6 para. 1 (Art. 6-1) in the sense of Article 25 (Art. 25)

of the Convention.

C. Article 6 (Art. 6) of the Convention

41. The applicant has complained that he did not get a trial by an

impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the

Convention, the relevant part of which reads as follows:

"In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing by an ...

impartial tribunal...".

42. It is not disputed in the present case that this provision

applies to the proceedings in the District Criminal Court of Akureyri,

regardless of any subsequent proceedings in the Supreme Court. This

also follows from the case-law of the Commission and the Court of

Human Rights and it would suffice to refer to the Court's judgment in

the case of De Cubber v. Belgium (judgment of 26 October 1984, Series

no. 86, p. 18, para. 32) where it stated the following:

"Article 6 para. 1 (Art. 6-1) concerns primarily courts of first

instance; it does not require the existence of courts of

further instance. It is true that its fundamental guarantees,

including impartiality, must also be provided by any courts of

appeal or courts of cassation which a Contracting State may

have chosen to set up (...). However, even when this is the

case it does not follow that the lower courts do not have to

provide the required guarantees. Such a result would be at

variance with the intention underlying the creation of several

levels of courts, namely to reinforce the protection afforded

to litigants."

43. The Government have maintained, however, that the Icelandic

system where investigative and judicial powers are combined has a

historical and geographical origin and they emphasise that the

conditions prevailing in Iceland are significantly different from

those of other member States of the Council of Europe. These

particular Icelandic conditions form the background for the legal

system and the applicant's case should be seen in this light.

44. The Government have pointed out that what the deputy chief of

police did in the present case was only to follow the guidelines

issued by the public prosecutor to the Icelandic chiefs of police

concerning the handling of minor offences. The treatment of the

applicant's case was in no way different from the treatment any other

citizen would have received under the same circumstances. The letters

from the chief of police were disregarded by the applicant and he was

never called upon to appear before the chief of police or his deputy.

The case was not dealt with any further by the police.

45. Bearing this in mind, the Government maintain that the

procedure followed by the police was a matter of routine. No aspect of

the procedure could have influenced the attitude of the chief of

police or his deputy when the case was later brought up in court.

Furthermore, the applicant's case was never referred to the public

prosecutor at this stage.

46. Moreover, the Government submit that there is no indication at

all of partiality in the deputy chief of police's treatment of the

case, and this applies to all stages of the examinations of the court,

both before and after the issuance of the indictment. The Government's

conclusion is therefore that the applicant received fair treatment by an

impartial tribunal in conformity with Article 6 (Art. 6) of the Convention.

47. The applicant has submitted that Iceland is, as any other High

Contracting Party, obliged to comply with the Convention despite its historical

and geographical situation. The breach of the Convention lies in the fact that

the judicial system of Iceland provides that, outside Reykjavik, the town and

county magistrates act, as in the present case, both as chiefs of police and

judges in criminal proceedings.

48. Furthermore, the applicant has submitted that the judge in the present

case did not display any personal hostility or ill-will towards the applicant.

However, the fact that the case was decided by a person who earlier in the same

case had acted as deputy chief of police must lead to the conclusion that the

applicant's case was not heard by an impartial tribunal. Such a tribunal

cannot be seen to do justice. In the present case the judge in question, in

his capacity as deputy chief of police, sent the applicant two letters offering

him to settle the case by paying a fine. By doing this he must have made up

his mind and decided by himself that the applicant was guilty of both charges.

He cannot therefore be considered an impartial judge when he afterwards was

called upon to decide the case as a judge.

49. The Commission finds that a restrictive interpretation of Article 6

(Art. 6) of the Convention - notably in regard to the observance of the

fundamental principle of the impartiality of the courts - would not be

consonant with the object and purpose of this provision, bearing in mind the

prominent place which the right to a fair trial holds in a democratic society.

The Commission furthermore recalls that the European Court of Human Rights has

stated that the guarantee of impartiality required by Article 6 (Art. 6) of the

Convention implies a double guarantee: first the subjective requirement that

the judge shall be unbiased, and secondly, an objective requirement that the

situation must be such as to exclude any legitimate doubts about his

impartiality (Eur. Court H.R., Piersack judgment of 1 October 1982, Series A

no. 53, p. 14, para. 30).

50. In view of the specific nature of the case the Commission can limit

itself to an examination of the objective requirement of impartiality. In this

respect it is recalled that the Commission and the Court have previously had

the opportunity to examine cases where the composition of a court was such that

it could be considered to affect its impartiality.

51. In finding a violation of Article 6 para. 1 (Art. 6-1) in the case of

Piersack v. Belgium (above para. 49) the Court considered that if "an

individual, after holding in the public prosecutor's department an office whose

nature is such that he may have to deal with a given matter in the course of

his duties, subsequently sits in the same case as a judge, the public are

entitled to fear that he does not offer sufficient guarantees of impartiality"

(p. 15, para. 30 (d)). The impartiality of the tribunal which had to determine

the merits of the charge was in such circumstances capable of appearing open to

doubt.

52. In the case of De Cubber v. Belgium (above para. 42) the Court also

found a violation of Article 6 para. 1 (Art. 6-1) of the Convention. It was

noted that the Belgian investigating judge was independent, did not have the

status of a party to criminal proceedings, should assemble evidence in favour

of as well as against the accused, was not empowered to commit for trial and,

in his report to the chambre du conseil, expressed no opinion on the accused's

guilt. However, the investigating judge was placed under the supervision of

the procureur général and, where the suspected offender had been caught in the

act, could take any action which the procureur du Roi was empowered to take.

He enjoyed very wide-ranging powers throughout an investigation which was

inquisitorial in nature, secret and not conducted in the presence of both

parties. He had the advantage over his colleagues on the trial court of

having, well before the hearing, a particularly detailed knowledge of the files

he had assembled. In these circumstances his presence on the bench provided

grounds for some legitimate misgivings on the part of the accused. 53. In

the Ben Yaacoub case (Ben Yaacoub v. Belgium, Comm. Report 7.5.85) the

Commission found that the applicant's case was not heard by an impartial

tribunal within the meaning of Article 6 (Art. 6) of the Convention in that the

same person had dealt with the case in question, first in the chambre du

conseil and subsequently as a member of the trial court. The Commission noted

that the chambre du conseil had a number of functions and that, in particular,

it had to ensure that the investigation was complete and to commit the accused

for trial where there existed sufficient indications of guilt. Moreover, the

chambre du conseil decided periodically on the detention on remand of the

accused. The case was subsequently settled in the European Court of Human

Rights.

54. Finally, in the Hauschildt case (Hauschildt v. Denmark, Comm. Report

16.7.1987) the Commission found no breach of the Convention when a judge, prior

to deciding on an accused's guilt, had prolonged his detention on remand and

taken various procedural decisions regarding the case. The Commission

considered in this case that, if different functions were attributed to

different organs by the rules of criminal procedure applicable in a given

country, it could generally be assumed that the legislator, by separating the

functions and attributing them to different persons, intended to protect the

impartiality of the courts. Doubts as to impartiality might therefore arise

where a judge had earlier fulfilled functions attributed to a different organ.

On the other hand, a similar presumption did not arise where a judge exercised

different functions all of which had been attributed to the court under the

institutional framework of the legal system concerned (para. 106 of the

Report). The case has subsequently been referred to the European Court of

Human Rights.

55. It follows from the above case-law that the Commission must attach

particular weight to the functions exercised and to the internal organisation

in regard to the case before it. In this respect even appearances may be

important, cf. the English maxim "justice must not only be done, it must also

be seen to be done". What is at stake is the confidence which the courts in a

democratic society must inspire in the public and above all, as far as criminal

proceedings are concerned, in the accused.

56. The Commission recalls that it is undisputed that the Icelandic system

applied in the present case combined the investigative and the judicial powers.

This also follows from inter alia Section 7 of the Act no. 74 of 27 April 1972

which provides that the offices of county and town magistrates are charged with

the duties of both the judge and the chief of police. It is true that the

deputy of the town magistrate of Akureyri, Mr. SJ, did not deal with the

applicant's case as representing the public prosecutor. However, as deputy

chief of police, he had to satisfy himself, on the basis of the material

produced by his police officers and under Section 112 sub-section 2 of the Code

of Criminal Procedure that the applicant had violated the Traffic Act, that the

fine for the offence would not exceed 12,000 Icelandic crowns if the case went

before the courts and that the fine to be imposed would be appropriate.

57. Furthermore it is undisputed that Mr. SJ subsequently dealt with the

applicant's case in his capacity of judge, not only as investigating judge but

also as trial judge. In the latter capacity, sitting as the sole judge, he

enjoyed during the trial exclusive powers of deciding whether or not the

applicant was guilty of the charges brought against him. Thus he exercised

functions both as chief of police and as judge in the criminal case brought

against the applicant. In such circumstances the Commission finds that there

were reasons to fear that Mr. SJ, in his capacity as judge, did not offer

sufficient guarantees of impartiality. Accordingly, and having regard to the

case-law set out above, the impartiality of the "tribunal" which had to

determine the merits of the charges brought against the applicant was open to

doubt. This tribunal did not, therefore, fulfil the requirements of Article 6

para. 1 (Art. 6-1) of the Convention.

Conclusion

58. The Commission concludes unanimously that there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention, in that the District Court of

Akureyri, when convicting and sentencing the applicant, was not an impartial

tribunal.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

CONCURRING OPINION OF MR. H. VANDENBERGHE

As the other members of the Commission, I am of the opinion

that there is a violation of Article 6 para. 1 of the Convention.

However, I cannot follow the reasoning proposed in para. 54 of the

Report of the Commission referring to the Hauschildt case (Hauschildt v.

Denmark, Comm. Report 16.7.87).

As explained in a dissenting opinion shared by six other

members, the application of the criteria given by the Court in its

decisions De Cubber v. Belgium (judgment of 26 October 1984, Series A

no. 86) and Piersack v. Belgium (judgment of 1 October 1982, Series A

no. 53) should in the Hauschildt case lead to the finding of a

violation of Article 6 para. 1.

Because I could not agree with the majority opinion of the

Commission in the Hauschildt case, I cannot therefore follow the

reasoning contained in para. 54.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

10 April 1986 Introduction of the application

20 May 1986 Registration of the application

Examination of admissibility

13 October 1986 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

6 February 1987 Submission of the Government's

observations

16 March 1987 Submission of the applicant's

observations

13 July 1987 Commission's decision to hold a

hearing on the admissibility and

merits of the case

13 October 1987 Hearing on the admissibility and

merits. The parties were represented

as follows:

The applicant: M. Tómasson

The Government: MM. Geirsson

Claessen

13 October 1987 Commission's decision to declare

the application admissible

Examination on the merits

7 May 1988 Consideration of the state of

proceedings

8 October 1988 Consideration of the state of

proceedings

8 March 1989 Commission's deliberations on

the merits, final votes and

adoption of the Report

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KRISTINSSON v. ICELAND

KRISTINSSON v. ICELAND

LEXI