FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32451/96

by Vilborg Yrsa SIGURĐARDÓTTIR

against Iceland

The European Court of Human Rights ( First Section) sitting on 24 August 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr Gaukur Jörundsson ,

Mr R. Türmen ,

Mr C. Bîrsan ,

Mrs W. Thomassen ,

Mr R. Maruste , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 May 1996 by Vilborg Yrsa Sigurðardóttir against Iceland and registered on 30 July 1996 under file no. 32451/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 14 December 1998 and the observations in reply submitted by the applicant on 8 February 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Icelandic citizen, born in 1963 and resident in Seltjarnarnes .  Before the Court she is represented by Mr Jón Steinar Gunnlaugsson , a lawyer practising in Reykjavík .

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

A. Particular circumstances of the case

At the end of April 1989 the police in Reykjavík commenced the investigation of a drug case relating to importation and distribution of almost one kilogramme of cocaine, which apparently had been transported to Iceland at the end of October or beginning of November 1988.  A large number of people were interrogated in the course of the investigations.

On 11 May 1989 the applicant and her co-habitant, P, were arrested.  P was one of the principal suspects of the alleged drug offences.  P was kept in custody but the applicant was released during the following night.

On 17 May 1989 the applicant was interrogated as a suspect.  It was deemed that she had known about the importation and distribution of the drugs and she was suspected of criminal involvement.  She denied having any knowledge of the alleged drug offences.

On 2 June 1989 the applicant was again interrogated and, following the interrogation, arrested without a court order.

On 3 June 1989 the applicant was brought before the Criminal Court for Drug Cases ( sakadóm í ávana – og fíkniefnamálum ) which issued an order remanding her in custody until 16 June 1989.  The Criminal Court found the applicant to be reasonably suspected of criminal conduct even though this was denied by the applicant.

On 16 June 1989 the Criminal Court for Drug Cases issued a new order extending the applicant’s detention on remand until 12 July 1989.  The applicant appealed against the order to the Supreme Court ( Hæstirèttur Íslands ) which affirmed the order on 23 June 1989.

On 5 July 1989 the applicant was released.

In the investigation of the drug case three men were suspected of being the principal offenders.  These were P, the applicant’s cohabitant, X and Y.  An indictment, dated 11 October 1989, was issued against these three men.  The indictment charged P with having instigated and organised the acquisition of cocaine and its transport to Iceland and having, before X’s trip to the United States, delivered to him 8,000 U.S. Dollars jointly owned by them.  He was also charged with having sent X more money, 5,000 Dollars, to the United States and for having retrieved 970 grammes of cocaine hidden in the spare tyre of a car imported by X from the United States.  Finally, he was charged with organised sale and distribution of the substance in the period from the first half of December 1988 until April 1989.  In a judgment rendered on 26 March 1991 the Supreme Court found P guilty of this conduct and sentenced him to four years’ imprisonment pursuant to Section 173 a of the Penal Code, Act No 19/1940.  X was sentenced to three and a half years imprisonment, and Y was sentenced to two and a half years imprisonment for having organised the cocaine importation jointly with P.  They did not appeal to the Supreme Court against this judgment.

On 30 October 1989 the public prosecutor issued an indictment against the applicant.  The indictment read, as far as relevant, as follows:

(Translation)

“... having in October 1988, in Reykjavík , delivered to her co-habitant [P] … USD 666 for purchase of cocaine, while having for some time been aware that the said [P] and others, were preparing to send [a third person] to the United States to purchase substantial amounts of cocaine and to import the substance to Iceland for financial gain; [the applicant] knowing that this money which she owned would be used for the purchase.  [The applicant] was aware that in late November 970 grammes of cocaine were imported in accordance with these plans and that shortly thereafter sale of the substance commenced; and [the applicant] was also aware that funds available to herself and [P] in December 1988 and early 1989 had been acquired by the sale of the substance.  [The applicant] is furthermore charged with having used in the period in question cocaine a few times in Reykjavík .”

On 9 December 1992 the case against the applicant was filed in the Reykjavík District Court ( Héraðsdòmur Reykjavíkur ) after the applicant herself had taken the initiative to have the action filed in court.

On 18 January 1993 the District Court acquitted the applicant of the charges.  The reason for her acquittal of the first charge was that no evidence had been adduced to refute her denial of having delivered the money to P for this purpose.  The reason for her acquittal of the second charge was that as the penalty for the use of cocaine could not have exceeded a fine, her criminal liability had lapsed due to passage of time.  There was no appeal against this judgment.

On 29 June 1993 the applicant instituted civil proceedings against the Icelandic Government, requesting damages for unlawful and unnecessary arrest and for unlawful and/or unnecessary detention on remand.  The claim was denied by the Government.

On 30 June 1994 the Reykjavík District Court rejected the applicant’s claims.  The applicant appealed against this judgment to the Supreme Court.

On 30 November 1995 the Supreme Court upheld the District Court’s judgment while giving the following reasons:

(Translation)

“As stated in the judgment appealed against, two charges were brought in the indictment against [the applicant]: having supplied money for the purchase of cocaine, and having used cocaine.  The condition set out in the final provision of Section 150 (2) of Act No. 74/1974 is that the applicant is deemed more likely to be innocent than guilty.  As regards the first charge, i.e. the supply of money for the purchase of cocaine, it is not contested that [the applicant] delivered to the man she lived with the said USD 666 in the morning of 12 October 1988, and that he handed them over to another person who was going to the United States the same day to buy cocaine.  Witnesses have testified that [the applicant] was present when the money was delivered, and that they knew what it was to be used for.  The question remains, then, whether [the applicant] has established that she is likely not to have known for what purpose the money was to be used. It cannot be seen from the facts of the case and the statements described in the Reykjavík District Court’s judgment of 5 June 1990 (public prosecutor v. [P]) that she is more likely to be innocent than guilty of this conduct.  [The applicant] confessed to the use of cocaine and to having provided cocaine to others, and already for that reason she does not fulfil the requirements of Section 150 (2) of the above-mentioned Act as regards that conduct.  This renders unnecessary an examination of the requirements of Section 150 (1) and a consideration of [the applicant’s] statements in view of those requirements.  The judgment appealed against is therefore to be sustained.”

B. Relevant domestic law and practice

When the events of which the applicant complains occurred, the Code of Criminal Procedure (CCP), Act No. 74/1974, was in effect.  Its Section 150 provided for compensation to accused persons as follows:

(Translation)

“In the absence of specific provisions to the contrary a request for indemnification according to this Chapter may only be granted if:

and

The above provisions have now been abolished and according to Act No. 36/1999, which entered into force on 1 May 1999 the corresponding provision of the new Act (Section 175 § 1) provides for compensation to accused persons in the following terms:

(Translation)

“A claim for indemnification according to this Chapter may be granted if investigation has been discontinued or an indictment not issued because the conduct allegedly committed by the accused was deemed not to be criminal or proof thereof could not be obtained, or if the accused was acquitted for this reason by a judgment from which appeal did not take place or could not have taken place.  Indemnification may however be rejected or reduced if the accused caused or contributed to the measures on which he bases his claim.”

COMPLAINTS

The applicant complains, under Article 6 § 2 of the Convention, that she was not presumed innocent by the Supreme Court as her compensation claim was rejected on the grounds that she was not deemed more likely to be innocent than guilty of the conduct with which she was charged.

PROCEEDINGS

The application was introduced on 15 May 1996 and registered on 30 July 1996.

On 9 September 1998, the Commission decided to communicate the application to the respondent Government in respect of the complaint concerning the presumption of innocence. The remainder of the application was declared inadmissible.

The Government’s written observations were submitted on 14 December 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 February 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains that she was not presumed innocent by the Supreme Court as her compensation claim was rejected on the grounds that she was not deemed more likely to be innocent than guilty of the conduct with which she was charged.  She invokes Article 6 § 2 of the Convention which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Government maintain that the complaint was never mentioned by the applicant in the course of her suit for compensation before the courts of Iceland, whether in substance or by an express reference to Article 6 § 2 of the Convention.  The applicant has, therefore, failed to exhaust domestic remedies.

The Government argue that the exposition of the applicant to the court of the lower instance, dated 25 June 1993, described in detail the legal provisions on which the applicant based her claim for compensation.  These were primarily found in Chapter 18 of the Code of Criminal Procedure then in force, the subject of which was compensation to accused persons.  She also based her claims on Section 65 of the Constitution, as then in force, which provided for the rights of arrested persons and the conditions for detention on remand.  The exposition of the Government to the lower court expressed the defence that the condition of Section 150 of the Code of Criminal Procedure, specifying that the applicant was more likely to be innocent than guilty, in spite of a judgment of acquittal, was not fulfilled.  In this a reference was also made to the judgment of the Supreme Court, holding that when assessing the applicant’s statements in their entirety, as well as the additional police reports, she had to be expected to possess wide ranging knowledge of various aspects of the serious criminal case then under investigation, and that this strengthened yet further the suspicions of her criminal involvement therein.

In the Government’s opinion the judgment of the lower court does not permit the inference that the applicant reacted to this defence by maintaining, whether in substance or by an express reference to Article 6 § 2 of the European Convention on Human Rights, that it was incompatible with her right to be deemed innocent until proven guilty.

The Government state that, when the judgment of the lower court had been rendered on 30 June 1994, the applicant must be expected to have had still a further reason to try to refute its conclusion by this argument on appeal to the Supreme Court.  The applicant obviously examined the provisions of the Convention after the judgment of the lower court had been rendered, in the particular purpose of supporting her claims.  In her exposition to the Supreme Court of 3 October 1994, she emphasised the fact that the Convention had in the previous spring been incorporated into domestic law by Act No. 62/1994.  Thus, in support of her claim relating to unlawful arrest and detention, she referred to Article 5 §§ 1 (c) and 5 of the Convention.  This preparation of her case is similar to that of her later application to the Commission of 14 May 1996.  In her exposition to the Supreme Court she admittedly challenged the power of the district court judge to reassess her guilt or innocence on evidence that included police reports which failed to meet the standards applicable to their preparation.  On the other hand she did not at all, whether expressly or implicitly, assert that the grounds on which the district court judgment was based were contrary to Article 6 § 2 of the Convention.

The Government emphasise that when the applicant’s case was orally argued before the Supreme Court in the autumn of 1995, far-reaching changes had taken place, in June that year, of the human rights provisions of the Constitution.  This had been done by Constitutional Enactment No. 97/1995, which had added a provision to Section 70 § 2 of the Constitution identical to Article 6 § 2 of the Convention.  This argument cannot be seen to have been voiced any time during the Supreme Court procedure.

The applicant does not accept the Government’s statement that Article 6 § 2 of the Convention was never invoked on her behalf in the course of her litigation in Iceland.  The applicant refers to a survey of her lawyer’s speech before the Supreme Court when the case was orally pleaded.  The survey shows in the applicant’s opinion that her lawyer discussed Article 6 § 2 and the judgments of the Court in the case of Minelli against Switzerland of 25 March 1983 and in the cases of Lutz, Englert and Nölkenbockhoff against Germany of 25 August 1987.  These documents were, in accordance with general practice, delivered to all the judges of the Supreme Court and the Government’s representative.

The applicant states furthermore, that it is necessary to recall the domestic legal situation at the time.  When the applicant was remanded in custody, the Convention had not been given the force of law in Iceland.  This only took place with the enactment of Act No. 62/1994.  In Section 108 of the Code of Criminal Procedure then in force (Act No. 74/1974), there was however a general provision specifying that the burden of proof as regards a defendant’s guilt and any facts to be viewed in his disfavour rested with the prosecution.  The applicant brought her action in 1993 on the premise that a judgment of acquittal had been rendered in a criminal case against her.  She maintained that the case would have to be resolved on the basis of the fact that she had been acquitted of the suspected crimes that presumably led to her being remanded.  It goes without saying that the role of the courts was to determine whether she was entitled to compensation on that basis under the current Icelandic law.  The fact that the Supreme Court rendered its judgment on the basis that the applicant was no more likely to be innocent than guilty, means that this was the law in force in Iceland at that time.  The case is one of interpretation of law and, in Icelandic legal procedure, the courts are not bound by any declarations of the parties when interpreting law.  The applicant’s legal status under domestic law was determined by the Icelandic law in force at the time these events occurred.  The main reason why Article 6 § 2, and the judgments of the European Court of Human Rights were mentioned on the applicant’s behalf at the time of oral argumentation, was the assumption that interpretation of domestic law may be influenced by Iceland’s international obligations, in spite of the fact that such obligations are deemed to constitute a part of domestic law only after having been adopted or incorporated.

The Court notes that the applicant’s complaint relates to the reasoning and findings of the Supreme Court in its judgment of 30 November 1995 and that no appeal against it was possible according to Icelandic law.  The applicant argued her innocence in the proceedings before the Icelandic court since innocence was decisive for the question, whether she met the conditions of the right to compensation provided for in Section 150 of the Code of Criminal Procedure, which was in force at the relevant time.  The Court takes note of the applicant’s explanation that her lawyer in this context referred expressly in his pleadings before the Supreme Court to Article 6 § 2 of the Convention and to the relevant case-law of the European Court of Human Rights.  It was, on the other hand, the primary task and responsibility of the Supreme Court to apply and give its interpretation of the above ‑ mentioned provision of the Code of Criminal Procedure and a guidance from the applicant’s lawyer cannot in that respect be seen as a condition for a proper exhaustion of domestic remedies according to Article 35 § 1 of the Convention.

In these circumstances the Court concludes that the applicant’s complaint cannot be rejected on the grounds that she has failed to exhaust domestic remedies.

2. The Government consider it clear from the various decisions taken in the applicant’s case that strong suspicions existed that she had been directly and criminally involved in the organised drug importation in question.  Nevertheless the applicant was indicted on account of certain narrow aspects of the matter, namely for having delivered to P 666 Dollars for purchase of cocaine, and for having used cocaine on two occasions.  The court of lower instance acquitted her of both charges on 18 January 1993.  The reason for her acquittal of the first charge was that no evidence had been adduced to refute her denial of having delivered the money to P for this purpose.  The reason for her acquittal of the second charge was that as the penalty for the use of cocaine could not have exceeded a fine, her criminal liability had lapsed due to passage of time.

The Government emphasise that in the light of the narrow scope of these charges, it is impossible to maintain that the judgment in question cleared her of all the suspicions on which her detention on remand had been based.

When the applicant claimed compensation for her detention on remand it was, in the Government’s opinion, necessary to examine the entire scope of the suspicions resulting in that measure having been taken.  Exactly therefore, the Supreme Court, in its judgment of 30 November 1995, referred to the facts of, and the statements provided in, the criminal case against P, X and Y, where an involvement on her part was frequently mentioned.  It was natural for the Supreme Court, in the applicant’s compensation case, to examine as evidence the statements of the applicant and other witnesses provided in the criminal case against P, X and Y.

The Government point out that the other consideration on which the Supreme Court based its judgment was that the applicant had confessed to the use of cocaine and of having provided cocaine to others, and that already for that reason she did not fulfil the requirements of Section 150 (2) of the Code of Criminal Procedure as regards that conduct.  As regards the applicant’s use of cocaine in the criminal case, no final resolution was passed as to whether she was guilty or innocent, as she was acquitted by reason of lapse of time, and not following a consideration of the merits of the matter.

In this light, and by reference to the established practice of the European Court of Human Rights as regards the interpretation of Article 6 § 2, the Government consider that the judgment of the Supreme Court of Iceland of 30 November 1995 did not constitute a breach of the applicant’s right to be deemed innocent.

In the applicant’s view the Government seem to be of the opinion that persons who are either not indicted at all on account of a criminal offence, or indicted for an offence less serious than they are believed to have committed, do not, in so far as those offences are concerned, enjoy the protection of Article 6 § 2.  This is an attitude which the applicant believes is not warranted by the provision itself.  The provision grants protection to persons against being deemed guilty of a criminal offence, unless a charge has been brought forth against them and confirmed in court in a manner conforming to the other provisions of Article 6, including those in § 3.  The provision protects anyone against having to suffer from such guilt in their relations with the State, unless it has been adjudicated in court under observance of the relevant rules.

The applicant emphasises that she had been acquitted in a criminal case by a domestic court.  The issue in this case is her legal status after this conclusion had been reached, i.e. whether an assumption that she might have been guilty in spite of her acquittal could be made decisive for the outcome of her suit for compensation.  In her view this was totally unjustified.  On the other hand the wrong done to her was compounded by the Icelandic court seeking to support its new assessment by the evidence brought forth in a different court case, which she had been given no opportunity to challenge, or to question the witnesses providing that evidence.

Furthermore, the applicant draws attention to the Supreme Court’s argumentation in the compensation case adjudicated 30 November 1995, namely;  “The question remains then, whether the appellant has established that she is likely not to have known for what purpose the monies were to be used”.  From this the court then draws its conclusion, that she was not more likely to be innocent than guilty.  In other words, the burden of proof as regards this point is placed on the applicant.  Whatever else may be said, this by itself entails a direct violation of Article 6 § 2.

The applicant reiterates that her use of cocaine on two occasions, of which she was acquitted in the criminal case on account of lapse of time, cannot possibly excuse the treatment afforded her.  Suspicion of such use could never justify detention on remand under Icelandic law; nor was this mentioned in the remand orders issued against her.  In the applicant’s opinion the Supreme Court can justly be criticised for referring to this point in support of its conclusion of finding the Government free of her claim for compensation on account of the remand imprisonment.  It is of no relevance for the case, but in its attempts to justify the actions of its servants the Icelandic Government have been tempted to go this way in their defence.  The applicant challenges this argumentation as irrelevant.

The Court considers, in the light of the parties’ submissions, that the cases raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of merits of the applicant’s complaint.  The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.  No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATON ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm Registrar President