AS TO THE ADMISSIBILITY OF

                      Application No. 12170/86

                      by Jon KRISTINSSON

                      against Iceland

        The European Commission of Human Rights sitting in private

on 13 October 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. JÖRUNDSSON

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             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 10 April 1986

by Jon Kristinsson against Iceland and registered on 20 May 1986 under

file N° 12170/86;

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

Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent

Government on 6 February 1987 and the observations in reply submitted

by the applicant on 16 March 1987 as well as the submissions of the

parties at the hearing held on 13 October 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows.

        The applicant is an Icelandic citizen, born in 1916.  He is a

superintendent and resides at Akureyri, Iceland.  Before the Commission

he is represented by Mr.  Eirikur Tomasson, a lawyer practising in

Reykjavik, Iceland.

        The particular facts of the case

        On 20 June 1984 two police officers engaged in monitoring

traffic speed by radar in the vicinity 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 conducted at the foot of a steep hill.

        On 26 June 1984 two police officers again 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

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

        In two letters from the chief of police of Akureyri, dated 10

and 12 July 1984, the applicant was offered the chance of settling

both of the above cases by paying a fine determined by the chief of

police for the alleged breaches of the Traffic Act.  The letters stated

that no further action would be taken by the authorities if payment

were received within a specified period.  Both letters were signed by

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

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

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

before the Akureyri District Criminal Court, where he appeared on

30 August 1984.  The judge in charge was Mr.  SJ, the same person who

had earlier dealt with the applicant's case as the deputy of the chief

of police, but now representing the town magistrate of Akureyri.  The

applicant declined to settle the cases 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.

        Following this court hearing, the police officers who had

brought the complaints against the applicant were called to appear in

court to give testimony.  The judge in charge was again Mr.  SJ.

At the conclusion of the preliminary inquiry the case documents were

sent to the public prosecutor, who subsequently issued an indictment

of 23 November 1984 against the applicant for his alleged violations

of the Traffic Act, i.e. (1) exceeding the speed limit, and (2)

failing to observe a stop sign.

        Mr.  SJ, representing the town magistrate of Akureyri, heard

the case on 4 and 10 December 1984 and pronounced judgment in the case

on 27 December 1984.  The applicant was found guilty on both counts and

ordered to pay a fine of 3,000 Icelandic crowns to the Icelandic State

Treasury as well as all costs.

        The applicant refused to accept this sentence and appealed

against it to the Icelandic Supreme Court.  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 a retrial.  The

applicant argued that the inquiry in the District Criminal Court had

been quite inadequate, and that the case had not been heard by an

impartial judge since the procedure whereby the same official was

involved in a case both as chief of police (deputy chief of police)

and as judge (deputy judge) conflicted with the principles stated in

Articles 2 and 61 of the Icelandic Constitution and Article 6 of the

European Convention on Human Rights.

        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 and the

applicant was sentenced to pay 1,500 Icelandic crowns.  He was also

ordered to pay all costs of the appeal proceedings.  Regarding the

applicant's claim concerning the impartiality 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 criminal court decision cannot be set aside

        on the grounds 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."

        Relevant domestic law and practice

        According to Section 59 of the Icelandic Constitution the

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

27 April 1972 on District Judicial Organisation, Police and Customs

Administration regulates the judicial system.

        The Act describes in its Sections 1 - 6 the judicial

organisation as well as the police and customs administration in

Reykjavik.  Judicial duties are distributed among three offices with

judicial authority.  The sections describe the type of cases dealt

with by each office, the offices of the chief of police and the

offices of the director of customs.

        Section 7 of the Act provides that outside Reykjavik the type

of cases enumerated in Sections 2 - 6 come under the duties of the

offices of town and county magistrates, unless otherwise provided by

law.

        Section 7 furthermore provides that the Minister of Justice

may decide that district court judges shall serve with the offices of

some particular town and county magistrates outside Reykjavik.  These

offices include Akureyri.

        Section 15 of the Act provides that as many deputies as the

Minister of Justice considers necessary shall serve with the above

offices.  The deputies shall fulfil certain conditions prescribed by

law.

        According to sub-section 2 of Section 15 the Minister of

Justice may grant to the deputies appointed according to sub-section 1,

and who fulfil the conditions prescribed by law for permanent engagement

as judges, a special commission for performing independently and on

their own responsibility the judicial functions entrusted to them.

        Act no. 85 of 23 June 1936 concerns the district court

procedure and includes provisions concerning judges.

        Section 29 provides that judicial functions in civil cases are

performed by county magistates in the counties, town magistrates in

the townships, specially designated district court judges in counties

and townships, city magistrates and criminal court judges in Reykjavik,

and the chief of police at Keflavik Airport.

        Section 33 concerns the judges' deputies.  According to

sub-section 4 the Minister of Justice can authorise deputies of a

district court judge to perform on the judge's responsibility, in his

absence or owing to his workload, all judicial functions.  The

deputies shall fulfil the same conditions as the judges themselves,

except as regards age and seniority.

        Chapter 2 of the Code of Criminal Procedure of 21 August

1974  contains provisions concerning district court judges.

Section 4 of the Code provides that county magistrates outside

townships, town magistrates in townships outside Reykjavik, other

judges appointed to serve within these offices, and criminal court

judges in Reykjavik, conduct the investigation of criminal cases in

court, hear them, and pass judgment.  Section 15 of the Code provides

that a judge can have his authorised deputy conduct the investigation

of criminal cases in court and pass judgments if the deputy fulfils

the same conditions as set out in Section 33 of Act no. 85 of 23 June

1986 mentioned above.

        Chapter 5 of the Code of Criminal Procedure includes

provisions concerning police officers and the initial police

investigation.  Section 32 concerns chiefs of police and provides

that county magistrates are chiefs of police outside townships, town

magistrates in townships outside Reykjavik, and specially appointed

chiefs of police where they have been designated.  This last provision

refers to the Keflavik Airport jurisdiction.

        Chapter 14 of the Code of Criminal Procedure is entitled

"Juvenile cases, fines set by chiefs of police and police officers,

settlements in court, and indictments".  This chapter concerns the

treatment of various minor offences.

        Section 112 sub-section 2 provides that if a chief of police

receives information concerning a traffic offence or other types

of offences, and he considers that the sanction would not exceed a

fine of 12,000 Icelandic crowns he can make an offer in writing to the

accused within one month of receiving the information whereby the

matter can be settled against the payment of a suitable fine if the

accused accepts this by his signature.  If the accused does not accept

the offer, the chief of police shall refer the matter to a judge.

        According to Section 112 sub-section 1, a judge can settle a

criminal case without involving the prosecutor, if an offence is

conclusively proven and it is considered that the penalty would not

exceed a fine if the case was adjudged.  The judge can then determine

a suitable fine, if the accused accepts this decision by his signature

in the record.

        If the accused does not accept that the case be settled in

this way, the judge refers the case to the public prosecutor, who then

may either decide to drop the charge or issue an indictment (cf.

Section 115).  The public prosecutor sends an indictment to the judge,

who then proceeds with the case in accordance with the provisions of

the Code of Criminal Procedure.

        When judgment is given the parties, i.e. the public prosecutor

and the defendant, can appeal the case to the Supreme Court of

Iceland, if either of them or both do not wish to abide by the

judgment of the District Court.  The Supreme Court then reviews the

case, and decides on issues of fact as well as sanctions.  The judgment

of the Supreme Court is final.

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 10 April 1986 and registered

on 20 May 1986.

        On 13 October 1986 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.

        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.

        On 13 July 1987 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

        On 18 September 1987 the President of the Commission, acting

in accordance with Rule 7 of the Addendum to the Commission's Rules of

Procedure, decided that legal aid should be granted to the applicant

for the representation of his case before the Commission.

        At the hearing, which was held on 13 October 1987, the parties

were represented as follows:

        The Government

        Mr.  Thorsteinn Geirsson, secretary general of the Ministry of

        Justice, Agent.

        Mr.  Gunnlaugur Claessen, solicitor general.

        The applicant

        Mr.  Eirikur Tomasson, lawyer, applicant's representative.

SUBMISSIONS OF THE PARTIES

        The Government

        The Icelandic system where investigative and judicial powers

are combined has a historical and geographical origin and it should

be emphasised that the conditions prevailing in Iceland are

significantly different from those of other member States of the

Council of Europe.

        The combination of judicial and administrative authority is

based on a legal tradition of long standing.  The institution of

"syslumenn" (county magistrates) dates back to the year 1281.  Ever

since the beginning they have exercised executive and administrative

powers within their areas or counties.  For almost 300 years they have

also exercised judicial powers.  As regards town magistrates they have

exercised the same powers after towns were founded in Iceland.  This

applies to the town magistrate of Akureyri as well as to other town

magistrates in the country.

        The small population of Iceland, now and over the centuries,

is also an explanation to the particular development of the Icelandic

judicial system.  Today, Icelanders number about 240,000 which is

three times as many as at the turn of the century.  Furthermore, the

geographical conditions are different.  Iceland is divided by

mountains and large rivers and the climate is harsh for more than half

of the year.  All these facts have rendered communications difficult

and for a long time many local communities have had to live in

isolation.  In addition, there were almost no roads or bridges in

Iceland at the turn of the century, and communications have only been

significantly improved during the past few decades.  Thus, the

isolation of many rural communities has just recently been broken.

        All these particular Icelandic conditions, Iceland's history,

its geography and the density of its population, form the background

for the legal system.  In spite of this, attempts have been made to

separate judicial and administrative authority in Iceland.  An

evolution in this direction has been going on for quite a considerable

period of time.

        It started in Reykjavik, where almost 40% of the population

live today, and the separation of judicial and administrative

authority in Reykjavik is now complete.  Outside of Reykjavik this

evolution has progressed at a much slower pace.  Nevertheless,

important steps in this direction have been taken.

        Firstly, Section 7 of Act No. 74 of 1972 now provides for the

appointment of independent and impartial judges with the offices of

many county and town magistrates in the more populous areas.  These

judges have no police authority.  They may be charged with

administrative duties, but this is not done in practice.

        Secondly, the system of the State Criminal Investigation

Police Agency was changed in 1976 and an independent Agency was

established operating in Reykjavik and other municipalities in the

south-western part of the country where about two-thirds of the

population live.  This step in the direction of separating

investigative and judicial authority was not taken in full as the

State Investigation Police Agency does not serve other parts of the

country except at the request of the local authorities.

        The explanation why this evolution has progressed so slowly

outside the capital is varied.  Among the factors is that Icelandic

society has been undergoing drastic changes during the past few

decades.  People have moved in large numbers from rural areas to the

urban south-west.  The rural communities differ in character and many

of the communities, which are large in area, have a low population

density.

        With regard to the continuation of this evolution a new

Government came to power in Iceland on 8 July 1987.  The programme of

the new coalition Government states that they will initiate an overall

revision of the judicial system and carry out a separation of judicial

and administrative duties.  A committee is now preparing a Bill with

the aim of separating judicial and executive functions and thereby

securing the independence of the courts.

        Turning to the applicant's complaint in the present case the

Government maintain that it is incompatible with the provisions of

the Convention within the meaning of Article 27 para. 2 since the

applicant cannot be considered to be a victim of a violation of the

rights set forth in the Convention within the meaning of Article 25.

        Viewing separately the two alleged offences dealt with by the

Supreme Court of Iceland, the Court acquitted the applicant of the

charge of having violated the stop sign as the offence was not

regarded as proved.  As the applicant accordingly sought and gained

redress under the national system available to him, he cannot in

accordance with the established case-law of the Commission claim to

be a victim of any possible violation of the Convention.

        Regarding the other offence, the offence of speeding, the

applicant was never a victim within the meaning of Article 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.  In these

circumstances the Government are of the opinion that the complaint is

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2.

        In the alternative the applicant's complaint should be

regarded as being manifestly ill-founded within the meaning of

Article 27 para. 2 of the Convention.

        When looking at the present case in the light of the judgment

of the European Court of Human Rights in the case of De Cubber (Eur.

Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86)

there are obviously significant parallels, but also significant

differences.  In particular the applicant in the present case had

never been convicted previously and the authorities had not taken any

sort of action against him, at least not for 25 years.  Furthermore,

what actually happened were two things:  firstly, police reports on the

alleged offences were prepared; secondly, letters were sent to the

applicant on printed forms with the appropriate entries where he was

offered to have his case settled against the payment of a fine.

        By these routine letters of the deputy of the chief of police

the applicant was offered to pay a fine of 950 Icelandic crowns for the

speeding offence and 770 crowns for the non-observance of the stop sign.

In doing this, the deputy of the chief of police followed exactly 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.  These

letters 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.

        Bearing this in mind, it is evident 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.  Accordingly,

the case of Mr.  De Cubber and this case are fundamentally different.

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

prosecutor at this stage.

        The same deputy who signed the letters of the chief of police

received the case for treatment in court.  However, there is no

indication at all of partiality in his 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 conclusion is therefore

that the applicant received fair treatment by an impartial tribunal in

conformity with Article 6 of the Convention.

        The applicant

        The main facts of this case are not in dispute.  The applicant

was charged with two alleged violations of the Traffic Act and he was

offered to settle both of the charges by paying a fine determined by

the chief of police of Akureyri.  Both of these charges were signed by

Mr.  SJ, a deputy of the chief of police.  The applicant refused to

settle the case and was therefore summoned before the Criminal

District Court of Akureyri where he strongly protested against the

allegation of having failed to observe the stop sign.  Furthermore,

and contrary to what the Government have submitted, 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.

        After the case had been sent to the public prosecutor of

Iceland an indictment was issued against the applicant who was

subsequently found guilty of both charges by the Criminal District

Court and sentenced to pay a fine of 3,000 Icelandic crowns as well as

all legal costs.  The judge in charge was Mr.  SJ, the same person who

had earlier handled the case as deputy chief of police.  The applicant

appealed against the judgment to the Supreme Court of Iceland where

his primary claim was based on the argument that the case had not been

tried by an impartial judge.  The Supreme Court however, dismissed the

argument, found the applicant guilty of one of the charges brought

against him and sentenced him to pay a fine of 1,500 Icelandic crowns

as well as all legal costs.

        As can be seen from the above the judicial system of Iceland

provides that, outside the capital of Reykjavik, the town and county

magistrates act both as chiefs of police and judges in criminal

proceedings.  The applicant is of the opinion that Article 6 para. 1

of the Convention was violated when the same person acted first as

deputy chief of police and later as judge in the criminal case brought

against him.

        The Government maintain that the applicant cannot claim to be

a victim of a violation of the Convention since there were no

deficiencies in the treatment of his case before the Supreme Court of

Iceland.  Furthermore, the Government maintain that the applicant was

awarded all the material relief he sought by the Supreme Court.

        There is no doubt that the present case concerned the

determination of a criminal charge within the meaning of Article 6 of

the Convention.  This is also the way the case was treated under

Icelandic law.  It would, however, be absurd and contrary to the object

and purpose of Article 6 para. 1 if everyone in Iceland charged with a

criminal offence would have to appeal his case to the Supreme Court in

order to receive impartial treatment.  This also follows from the

case-law of the European Court of Human Rights, for example the

judgment in the case of De Cubber v.  Belgium.  Furthermore, it is not

quite true that the applicant 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.

        It is important, however, that the Supreme Court rejected the

applicant's primary claim and with reference to the above-mentioned

De Cubber judgment the defect involved matters of internal organisation

which were not cured by the higher court.  Therefore, the applicant

may claim to be a victim within the meaning of Article 25 of the

Convention.

        The Government have furthermore submitted that the judicial

system in Iceland could be justified by the special circumstances

there, for example the historical and geographical situation.  This

is, however, of no relevance since Iceland is, as any other High

Contracting Party, obliged to comply with the Convention.  The

applicant thus maintains that his case was not determined by an

independent and impartial tribunal within the meaning of Article 6

para. 1 of the Convention.

        According to the established case-law of the European Court of

Human Rights the question of impartiality can be tested in various

ways.  Hence, one can distinguish between a subjective approach, that

is endeavouring to ascertain the personal conviction of a given judge

in a given case, and an objective approach, that is determining

whether he offered a guarantee sufficient to exclude any legitimate

doubt in this respect.

        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.  A judge who

one day is working closely with the police as its superior and the

next day is deciding a case where the police is clearly on the other

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

question, in his capacity as deputy chief of police, had earlier 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 is

called upon to decide in the case as a judge.

        Due to the similarity between the present case and the case of

De Cubber, it is finally interesting to compare the status of the

chief of police or deputy chief of police in Iceland with the role of

the investigating judge in Belgium.  According to the applicable

Icelandic legislation the public prosecutor of Iceland orders

investigations in criminal cases, directs and supervises them.  He

may issue orders and instructions to the police carrying out an

investigation and may attend it personally or have his deputy attend.

Furthermore, the chiefs of police shall, when they consider it

appropriate or necessary, commence an investigation owing to suspected

offences, whether or not they have received a request.  In this regard

they are subject to the orders of the public prosecutor.

        Accordingly, as regards the criminal investigation, it is

clear that the chiefs of police in Iceland are placed under the

orders and instructions of the public prosecutor.  This comparison of

the status of the investigating judges in Belgium and the chiefs of

police in Iceland reveals that the chiefs of police in Iceland are

more dependent on the public prosecutor than the investigating judges

in Belgium.  Therefore, they should be considered more partial as

judges in criminal proceedings because of their close ties with one of

the parties to the proceedings.

        In the light of the above the applicant is of the opinion that

he can claim to be a victim of a violation of Article 6 of the

Convention, in that he was not tried in the District Criminal Court

of Akureyri by an impartial tribunal as guaranteed by Article 6.

THE LAW

        The applicant maintains that he may claim to be a victim of a

violation of the Convention in that he never confessed to the charge

of exceeding the speed limit, but chose not to contradict the radar

speed measurement and was subsequently convicted of the charge.

Furthermore the applicant submits that the same person acted first as

chief of police and subsequently as judge in the criminal case brought

against him and that there is nothing in Icelandic law to prevent the

same official from performing both these functions.  He 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 in these circumstances.

        The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

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 Government contend that the applicant cannot claim to be a

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

since he in fact confessed to the charge of exceeding the speed limit

and since, on his appeal, the Supreme Court of Iceland acquitted him

of the remaining charge.  In the alternative the Government maintain

that the applicant's complaint should be rejected as being manifestly

ill-founded.  The case should be considered in the light of the

historical and geographical background of Iceland.  Mr.  SJ, when

representing the chief of police, merely followed routine procedures

used in all cases of this kind.  Impartiality was accordingly observed

in full during this stage of the proceedings.  Similarly there was no

indication that Mr.  SJ, when serving as deputy judge, acted in a way

which could lead to the conclusion that the applicant's case was not

heard by an impartial tribunal.  The treatment of the applicant's case

was therefore in conformity with Article 6 (Art. 6) of the Convention.

        The Commission has taken cognizance of both parties'

submissions 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. KRUGER)                      (C.A. NØRGAARD)