Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13291/87

by Einar SVERRISSON

against Iceland

The European Commission of Human Rights sitting in private

on 4 December 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 September 1987

by Einar SVERRISSON against Iceland and registered on 9 October 1987

under file No. 13291/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is an Icelandic citizen, born in 1914. He is a

farmer and resides at Kaldrananes, Iceland. Before the Commission he

is represented by his lawyer, Mr. Eirikur Tómasson, Reykjavik, Iceland.

In July 1985 the applicant removed from his estate a fence

which had been erected in 1954 in order to prevent sheep, cattle, etc.

from straying. The authorities of the district of Myrdalshreppur

reported the incident to the local police claiming that the fence was

their property. A policeman, acting on the instructions of the county

magistrate of Vestur Skaftafellssysla, Mr. Einar Oddsson, carried out

a preliminary investigation of the case. The applicant maintained,

however, that it was his lawful right to remove the fence from his own

property.

Having examined the police file Mr. Oddsson, acting as chief

of police, sent the relevant documents of the case to the State

Prosecutor of Iceland. In return the State Prosecutor requested

Mr. Oddsson to investigate the case further, now in his capacity of

investigating judge according to the provisions of the Code of

Criminal Procedure No. 74 of 21 August 1974. At the conclusion of

this preliminary investigation Mr. Oddsson returned the documents of

the case to the State Prosecutor who then issued an indictment against

the applicant charging him with destruction of public property

contrary to the Icelandic Penal Code.

The case was brought before the District Criminal Court sitting

with one judge, Mr. Einar Oddsson, in his capacity of criminal court

judge and he pronounced judgment in the case on 1 July 1986. The

applicant was found guilty of the charge brought against him and he

received a suspended sentence with a two year period of probation

following the pronouncement of the judgment. The applicant was also

ordered to pay the costs of the proceedings.

The applicant appealed against this judgment to the Supreme

Court of Iceland claiming that the case be sent back to the District

Criminal Court for a re-trial. His claim was based on two points:

first, that the investigation by the police and the district court

judge had been incomplete and secondly that the case had not been

heard by an impartial judge in the District Criminal Court. With

regard to the latter point the applicant argued in the oral hearing

before the Supreme Court that the district criminal court judge should

not have pronounced judgment in the case as he, under the Icelandic legal

system, dealt with the case not only in his capacity as criminal court

judge but also in his capacity as chief of police of the area. The

applicant maintained that this was in conflict with Sections 2 and 61

of the Icelandic Constitution and Article 6 of the European Convention

on Human Rights.

In its judgment of 10 March 1987 the Supreme Court unanimously

rejected the applicant's complaint as to the partiality of the

district criminal court judge and stated as follows:

"Section 2 of the Icelandic Constitution ... has not been

considered as interfering with the judicial organisation

prescribed by law, according to which county and town

magistrates serving as chiefs of police also serve as district

court judges, notwithstanding that this is subject to

exemptions cf. Section 29 of Act No. 85 of 1936 in respect

of District Court Procedure in Civil Cases, and Section 4 of

the Code of Criminal Procedure ... . Section 61 of the

Constitution of 1944, ... also indicates directly that judges

may perform administrative functions. Article 6 of the European

Convention on Human Rights and Fundamental Freedoms, cf.

announcement No. 11 of 9 February 1954, has not been given

the force of law in Iceland. It does not therefore affect

the organisation described above as provided by law. Thus,

as the judgment appealed against was passed by a district

court judge in his rightful capacity under Icelandic law, it

cannot be voided on these grounds, notwithstanding that

reports obtained by a policeman in the judge's area of

office have been submitted in court."

The majority of the Supreme Court furthermore found the

applicant guilty of the charge brought against him and the judgment

of the District Criminal Court was upheld. The applicant was ordered

to pay the costs of the appeal proceedings.

COMPLAINTS

The applicant submits that, according to the Supreme Court

judgment, there seems to be no provision in Icelandic law to prevent

the same person from first acting as chief of police and subsequently

as judge in the same case. He complains that in the criminal case

brought against him the same official performed both these functions.

Accordingly, the applicant maintains that he was not heard in the

District Criminal Court by an impartial tribunal. He invokes Article 6

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 September 1987 and

registered on 9 October 1987.

On 14 April 1989 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits.

By letter of 28 July 1989 the Government submitted that they

did not object to the case being declared admissible. No observations

have been received from the applicant other than those contained in

his initial application.

THE LAW

The applicant complains of a breach of Article 6 para. 1 (Art.

6-1) of the Convention alleging that the criminal charge against him

was not determined by an impartial tribunal.

The relevant part of Article 6 para. 1 (Art. 6-1) reads as follows:

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

him, everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law."

The Commission has noted the contents of the Government's

letter of 28 July 1989 and has made a preliminary examination of the

applicant's complaint. It has come to the conclusion that the case

raises serious issues as to the application and interpretation of

Article 6 (Art. 6) of the Convention, and that these issues can only be

determined after an examination of the merits.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SVERRISSON v. ICELAND

SVERRISSON v. ICELAND

LEXI