THIRD SECTION

DECISION

Application no. 78004/17 Ólafur ÓLAFSSON against Iceland

The European Court of Human Rights (Third Section), sitting on 18 May 2021 as a Committee composed of:

Dmitry Dedov , President, Darian Pavli, Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 14 July 2017,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Ólafur Ólafsson, is an Icelandic national who was born in 1957 and lives in Pully, Switzerland. He was represented by Mr Tyge Trier, a lawyer practising in Copenhagen.

2 . The Icelandic Government (“the Government”) were represented by their Agent, Mr Einar Karl Hallvarðsson, the State Attorney General.

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

4 . On 16 January 2003, as part of a privatisation, the Icelandic Government sold its 45.8% share in the Agricultural Bank of Iceland ( Búnaðarbanki Íslands hf. ) to a group of investors known as the S Group. The total purchase price according to the contract was around 11.9 billion Icelandic krónur (ISK), at the time equivalent to approximately 141,330,160 euros (EUR).

5 . The S Group consisted of four entities, namely:

1) Egla hf. (a holding company, represented by the applicant);

2) Samvinnulífeyrissjóður (a pension fund);

3) Vátryggingafélag Íslands hf. (an insurance company) and

4 ) Eignarhaldsfélagið Samvinnutryggingar (a holding company).

6 . Egla hf. was the largest investor, acquiring 71.2% of the shares purchased.

7 . According to the contract, Egla hf. was owned by the German bank Hauck & Aufhäuser Privatbankiers KGaA (hereafter “Hauck & Aufhäuser”) (50% of the share capital), Vátryggingafélag Íslands hf. (0.5%) and by Ker hf. (an oil company) (49.5%). Through its shares in Egla hf., Hauck & Aufhäuser became the owner of 16.3% of the share capital in the Agricultural Bank of Iceland. T he other purchasers combined became owners of 29.5% of the share capital.

8 . As Chairman of the Board, the applicant signed the contract on behalf of Egla hf., together with the three owners of Egla hf..

9 . The participation of Hauck & Aufhäuser in the purchase involved an investment by the German bank in the Agricultural Bank of Iceland totalling approximately ISK 4 billion. Its involvement was therefore considered important when the Icelandic State chose to sell its shares to the S Group.

10 . The Icelandic State received the negotiated price. Nevertheless, since the purchase in 2003, doubts and allegations had been raised that the German bank had never been a proper shareholder of the Agricultural Bank of Iceland, which was later renamed Kaupthing Bank . The National Audit Bureau examined the matter in 2003 and found no irregularities. In June 2005 news broke that Hauck & Aufhäuser had sold its stakes in Egla hf. It was alleged publicly that the German bank had never been a shareholder of Búnaðarbanki Íslands hf . and that the Icelandic public had been deceived by the appearance that the German bank had participated in the acquisition. Rather, ownership had rather been exercised by unspecified other parties from the S Group or Kaupthing Bank. The applicant, as Chairman of the Board, and GH, the former managing director of Egla hf., publicly refuted any such allegations. In March 2006, having examined the case, t he National Audit Bureau stated that its examination had revealed nothing to support such claim.

11 . On 19 May 2016, the Althingi Ombudsman wrote a letter to the Parliamentary Constitutional and Supervisory Committee (CSC), informing it that he had recently received information as to how it might be possible to determine what the involvement of the German bank had actually been in the acquisition of the Icelandic State ’ s holding through its participation in Egla hf. This information had been made available to the Ombudsman under the condition that he kept its origin confidential. The Ombudsman stated, inter alia : “in view of the time which has elapsed since the events, I consider it unlikely that this information will provide an occasion for an investigation by the competent authorities for any alleged criminal conduct, unless a further examination based upon it should reveal otherwise. ...”.

12 . On 2 June 2016, pursuant to Article 1 of Act no. 68/2011 on Investigation Commissions, the Althingi adopted a Resolution to set up a Special Investigation Commission (henceforth “the SIC”) to carry out an investigation into “the participation of the German Bank Hauck & Aufhäuser Privatbankier KGaA in the purchase of the Icelandic state ’ s 45.8% stake in Búnaðarbanki Íslands hf . ” .

13 . The Resolution provided for the investigation to be entrusted to one person appointed by the Speaker in accordance with Article 2(1) of Act no. 68/2011. The Speaker appointed K.B.B., a judge of the Reykjavík District Court, to direct the investigation.

14 . One person, F.Þ.V., prosecutor in the District Prosecutor ’ s Office, was engaged as an employee of the investigation.

15 . According to chapter 1.2 “ Scope of investigation” in the final report by the SIC, the mandate given by the Althingi had been set out as follows:

“1.2 Scope of the investigation

In reading this report and further discussion of the SIC ’ s work it is necessary to keep in mind certain principles which apply to the work of investigation commissions appointed by the Althingi . Such commissions are subject to Act no. 68/2011, on Investigation Commissions. According to this Act, the principal task of the SIC is to gather information and to give an account of the events in a particular matter, as the Althingi has defined in mandating the Commission, cf. the first and second paragraphs of Art. 5 of Act no. 68/2011.

...

In the work of investigative commissions in general, issues may arise as to whether there are grounds for certain individuals or legal entities to be subject to criminal liability or special administrative penalties for their conduct. It should be emphasised that the SIC established by the Althingi resolution of 2 June 2016 and which now submits this report, was not entrusted with taking a position on such, i.e. whether individuals or legal persons could possibly be liable under law in the manner specified in the second paragraph of Art. 5 of Act no. 68/2011 in connection with those issues that the investigation is directed at. In view of the time which has elapsed since the events which this investigation is directed at occurred, as well as the nature of its substance, the premise is that due to the provisions of Chapter IX of the Penal Code No. 19/1940, on limitations, no individuals or legal persons can be held liable any more in connection with any of the conduct concerned in this report, regardless of how such conduct may appear viewed only with reference to the conditions for concepts of punishment provisions at any given time.

For these reasons, this report does not address the question of whether certain individuals or legal entities may conceivably have been guilty of criminal conduct. Since none of the persons called before the SIC were covered by the provisions of the second paragraph of Art. 5 of Act no. 68/2011, the provisions of Art. 10 of the same Act do not apply to the circumstances of any of them. The first paragraph of Art. 10 of the Act deals with the rights of individuals to counsel of their choice, and the second paragraph of Art. 10 provides for the right of persons to access documentation in the case, as long as this does not prejudice interests of the investigation”.

16 . During its investigation the SIC obtained information from various individuals, foreign parties, institutions and legal entities (see Article 7 of Act no. 68/2011). It summoned various persons for questioning by virtue of Article 8 of the Act. Under the said provision, a summoned person was obliged to respond truthfully and accurately to the SIC ’ s questions. If the person failed to comply with the SIC ’ s request to this effect, the SIC could request that a District Court judge summon the person as a witness. The questioning would then be governed by the relevant provisions of Criminal Procedure Act no. 88/2008, including section 118, which sets out that a witness may refuse to answer a question if the person ’ s reply could conceivably comprise a confession or indication that the person had committed a criminal offence or include aspects that could cause the person moral injury or serious financial loss.

17 . Four persons, the applicant, as former Chairman of the Board of Egla hf., G.H., former Managing Director of the company, S.E.E., former CEO of Kaupthing Bank, and H.M.S., former Deputy CEO of the same undertaking, refused to appear before the SIC to answer questions regarding the investigation. The SIC therefore petitioned Reykjavík District Court to have them testify as witnesses in accordance with Article 8(2) of Act no. 68/2011.

18 . At a hearing before the District Court on 8 December 2016, the applicant argued that he was not obliged to answer the SIC ’ s questions. His argumentation was two-fold. Firstly, he alleged that the SIC had no basis in law to launch an investigation into the conduct of private parties in the transaction at issue and that, therefore, he could not be obliged to respond to their questions. Secondly, he contended that the investigation before the SIC was de facto a criminal investigation against him and others, who had headed the S Group, in a case that was time-barred, and that he would not enjoy a fair trial within the meaning of Article 70 of the Constitution and Article 6 of the Convention.

19 . In a decision of 15 December 2016, the District Court found that the SIC had legal basis in Act 68/2011. However, having regard to the subject of the investigation, the position of the applicant at the time of the purchase of the Agricultural Bank of Iceland and his objection to the SIC ’ s request that he testify as a witness before the court, the District Court concluded that he was in fact being made to testify against himself in a case which could seriously harm his reputation. Under these circumstances the District Court found that he could not be obliged, against his will, to testify as a witness under the obligation and liability this entailed by law. The District Court also concluded that, since the investigation focused on the applicant ’ s conduct in the transaction, Article 10(4) of Act no. 68/2011 and section 118(1) of the Criminal Procedure Act no. 88/2008, were not sufficient to ensure him the legal protection implied by the principle of the right to remain silent under Article 70 § 1 of the Constitution on the right to fair legal process. Therefore, in the District Court ’ s view, the applicant could not be obliged to testify before the court.

20 . Upon appeal, on 17 January 2017 the Supreme Court found against the applicant. It noted that section 118(1) of the Criminal Procedure Act was an exception from the general obligation in section 116 to testify as witness, allowing the witness to refrain from answering particular questions if such answers could be expected to involve a confession of guilt, or indication that a party or parties referred to in section 117(1) and (2) have committed a criminal offence, or if the witness ’ s response could cause him or close relatives moral injury or material financial loss. Article 10(4) of Act no. 68/2011 provided the same exception. The Supreme Court then pointed out that it was impossible to decide beforehand whether the questions that the SIC intended to pose the applicant would be of such a nature that the provisions of section 118(1) of the Criminal Procedure Act no. 88/2008, and Article 10(4) of Act no. 68/2011, would apply to him. The Supreme Court therefore found no support in the above-mentioned statutory provisions to authorise the applicant to refuse categorically to testify as a witness before the court.

21 . On 30 January 2017, before the District Court, the applicant replied to the SIC ’ s questions which were posed by K.B.B. The transcript of the interview ran to 32 pages and it was recorded on audio and video. From the outset, the applicant pointed out that the event that he was to be asked about had taken place 15 years before, and that the investigator had refused to let him prepare himself by revealing the questions or any new evidence that might have emerged. The applicant brought a lawyer with him as an observer. The applicant did not refuse to reply to any questions, and he did not rely on section 118(1) of the Criminal Procedure Act no. 88/2008 or Article 10(4) of Act no. 68/2011.

22 . On 29 March 2017 the SIC published its report, which ran to 189 pages. It concluded, inter alia , that a group of investors had, at the behest of the applicant, made secret deals behind the scenes to conceal who actually owned the shares that the German bank purported to own. The actual owners of the shares were the applicant and others, by way of offshore entities. The German bank was thus protected from any financial risk. The conclusion contained, among other things, the following statement:

“In the sale by the Icelandic state of a 45.8% stake in Búnaðarbanki Íslands hf. to the so-called S Group, i.e. Egla hf. and other parties, in January 2003 the Icelandic government, and at the same time the Icelandic public, were deceived about the participation of the German bank Hauck & Aufhäuser in the purchase.

...

The [SIC] considers it to be beyond any doubt that Hauck & Aufhäuser was not in reality an investor in this transaction. This was far from the case and, in fact, was never the intention. As described in the SIC ’ s Report, it is established that prior to the signing of the agreement between S Group and the Icelandic state on the sale of Búnaðarbanki on 16 January 2003, measures were taken secretly providing for and ensuring that Hauck & Aufhäuser ’ s ownership of the shares in Egla hf., and thereby the German bank ’ s investment in Búnaðarbanki, was in name only and artificial. The German bank ’ s official participation was only a temporary cover-up for the ultimate control, risk and benefit of other parties from the same shares in Egla hf and thereby in Búnaðarbanki.

...

In Icelandic legal terminology, the concept of “deception” ( blekking) generally includes instilling, reinforcing or exploiting someone ’ s false or vague notion of some events. In fact, the general understanding of this concept can be considered essentially the same. In the estimation of the Althingi Special Investigation Commission, the documentation which has been described and made public in this Report, and the events on which the said documentation sheds a clear and unequivocal light, demonstrate without question that at the time the Icelandic government was deceived as to the involvement of Hauck & Aufhäuser in the privatisation of Búnaðarbanki Íslands hf. which concluded with a purchase agreement on 16 January 2003. At the same time, this Report, in the opinion of the SIC, casts a clear and unequivocal light on who practised that deception, carried it out and have then maintained it ever since, either by concealing their knowledge of the actual involvement of Hauck & Aufhäuser or insisting otherwise despite better knowledge.”

23 . On the same day, at a press conference, the main conclusions in the Report were presented and explained by K.B.B. and F.Þ.V. The latter stated, inter alia , that :

“the concept of deception, which is commonly understood in Icelandic legal study [sic], and I think in the general sense, to mean instilling, reinforcing or exploiting someone ’ s false or vague notion of some events. And the SIC ’ s conclusions show, in its assessment, that there were no questions that the Icelandic Government and the Icelandic public were deceived at the time concerning the involvement of Hauck & Aufhäuser in the privatisation of Búnaðarbanki Íslands and that this conclusion also casts a clear and unequivocal light on who they were, who practised this deception, profited from it and continued it after that, either by concealing their knowledge of the real involvement of Hauck & Aufhäuser in these transactions or by directly professing otherwise contrary to their better knowledge.”

24 . In the evening of that day, K.B.B. and F.Þ.V. gave a television interview concerning the Report. K.B.B. emphasised that the SIC had had no mandate to take a position on criminal liability. In reply to the reporters ’ questions, K.B.B. stressed that it was “possible to talk about deception without talking about it in connection with any enrichment offence ...”. F.Þ.V. stated, inter alia , that “ [the applicant] ends up with a siz e able portion and the lion ’ s share of the gains.”

25 . The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands) reads as follows:

Article 69

“No one may be subjected to punishment unless found guilty of conduct that constituted a criminal offence according to the law at the time when it was committed, or is totally analogous to such conduct. The sanctions may not be more severe than the law permitted at the time of commission.”

Article 70

“Everyone shall, for the determination of his rights and obligations or in the event of a criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law. A hearing by a court of law shall take place in public, except if the judge decides otherwise as provided for by law in the interest of morals, public order, the security of the State or the interests of the parties.

Everyone charged with criminal conduct shall be presumed innocent until proven guilty.”

26 . The relevant provisions of Act no. 68/2011 read as follows:

Article 1

“The Speaker of Althingi shall appoint a parliamentary Special Investigation Commission [SIC] if Althingi approves a Resolution to this effect, to investigate events in important matters of concern to the general public.

The Committee responsible for Althingi ’ s oversight of the executive branch shall evaluate and make a proposal to Althingi on when it is appropriate to appoint a SIC under this Act. In preparing such a proposal and before submitting it, a special assessment shall be made of the grounds and basis for the investigation, its potential scope and demarcation, and the availability of other remedies.

...”

Article 2

“The number of Commission members shall be decided in the resolution of Althingi . A single person may be entrusted with the investigation if there are grounds for so doing. ...

If an SIC is entrusted with the assessment of legal aspects which could shed light on whether individuals should be held accountable, the Commission must be comprised of at least three persons.

...”

Article 5

“The main role of a Special Investigation Commission is to gather information and to give an account of the events in the case, cf. the first paragraph of Art. 1. The task of the SIC shall be clearly defined in its mandate, cf. the first paragraph of Art. 2.

A SIC may be assigned the task of giving an opinion as to whether there may be legal aspects that could clarify whether there is cause for the competent authorities to examine the basis for accountability on the part of individuals or legal entities. Should suspicion arise during a SIC investigation that culpable conduct may have taken place, the SIC shall notify this to the State Prosecutor, who shall determine whether the case should be investigated in accordance with the Act on Criminal Procedure. If the SIC is of the opinion that a public official may have been guilty of a violation of his/her duties under the provisions of the Act on the Rights and Obligations of State Employees, or provisions of other Acts which apply to the official ’ s work, the SIC shall notify the respective director and the relevant ministry thereof. ...”

Article 7

“All parties, whether individuals, institutions or legal entities, are obliged to comply with a request from the SIC to provide the data it requests. The term data includes, for instance, reports, files, memos, protocols, contracts, expert opinions and other documentation requested by a SIC for the purposes of its investigation, whether printed (in writing) or in electronic format.

...”

Article 8

“A SIC may call individuals for questioning, who are then obliged to respond truthfully and correctly to the SIC ’ s questions. The chair shall direct the questioning but may entrust it to another member of the committee. He/She may also entrust an employee of the SIC or others working on the investigation to direct questions to the person being questioned. An audio or video recording shall be made of the questioning or it shall be preserved by other secure means.

If persons who are called to meet with the SIC for questioning fail to comply with the SIC ’ s request to this effect, the Commission may request that a District Court Judge summons a person to bear witness if it considers it necessary for the investigation of the case. Such a summons and questioning shall be governed by the provisions of the Act on Criminal Procedure as applicable. A decision may be taken to hold questioning behind closed doors.”

Article 10

“A person under investigation, cf. [the second paragraph] of Art. 5, is entitled to an assistant of his/her choice at all stages of the investigation. If specific grounds so warrant, the SIC may decide that the cost of the assistant ’ s work shall be paid by the Commission. The SIC ’ s decision on this point can be appealed to the Speaker of Althingi within three weeks of its being announced to the party concerned.

A person under investigation, cf. [the second paragraph] of Art. 5, shall, as long as this is not detrimental to the interests of the investigation, have access to the documentation in the case and shall be informed of those aspects which are being examined by the SIC concerning the person and which are regarded as significant for his/her case. Access to documentation may be restricted if it also contains information on the private affairs of others, provided that the interests which recommend that information be kept secret outweigh the interests of the person requesting access to the data.

Upon completion of the questioning and evidence gathering, persons who are under investigation and may be held accountable, cf. [the second paragraph] of Art. 5, shall be able to express themselves on the circumstances in the case and the legal interpretation that the SIC intends to discuss in its report. The SIC shall give the person concerned a reasonable time limit to deliver written comments on these issues.

The obligation to deliver data and to provide information and answers, cf. Art. 7, and to provide information when questioned, cf. Art. 8, does not apply, however, if this could be expected to involve a confession of guilt or indication that the person asked to submit the data or provide information has committed a criminal offence or details which would cause the person a moral injury or material financial loss. The same applies if the delivery of data or provision of information could have the same consequences for someone connected to the person in the manner referred to in the first and second paragraphs of Art. 117 of the Act ... on Criminal Procedure. However, data which a Minister or administrative officer has compiled on his/her work shall not be exempt from submission.

Information that an individual has provided to the SIC may not be used as evidence in a criminal case brought against the person.

If a person intentionally furnishes the SIC with false or misleading information under the instructions of this Act, such violations shall be punishable under Articles 145 and 146 of the Penal Code... 1) . Such cases shall be governed by the Act on Criminal Procedure.”

Article 14

“Claims in civil cases and cases referred to in points 2 and 3 of Art. 242 of the Penal Code ... arising from aspects in a SIC report or other reports in connection with the investigation cannot be directed against the members of SIC who have worked on the investigation. The same applies if a case is brought in connection with an investigation. The Icelandic state shall be responsible for their actions according to general rules, whether the action is brought before a domestic or foreign court. If a case against a SIC member is brought before a foreign court, notwithstanding the first sentence, the Icelandic state shall pay all the costs of pursuing the case and other accrued claims occasioned by this action.”

27 . The explanatory notes to the legislative bill implementing Article 14 of Act no. 68/2011 set out as follows:

“This article is identical to Article 19 of Act no. 142/2008, on an investigation into the events leading up to and causes of the collapse of the Icelandic banks 2008 and related incidents, cf. Article 3 of Act no. 146/2009. It provides for the protection of individuals who have worked on an investigation in the event of a lawsuit arising from aspects contained in a report of an investigative commission or other reports or accounts in connection with the investigation. It is necessary to provide for the indemnity of members of investigative commissions in this way. This is based on the general principle of the employer ’ s responsibility for the criminal conduct of employees and the same views apply to the indemnity of these individuals as apply to judges, but lawsuits against them are excluded as the state is liable for their actions. However, this rule is not limited to tort liability, but covers all types of claims for declaratory judgments, claims for annulment of comments and other types of civil law claims. It must be considered fair and natural that commission members should not be forced to defend the statutory task for which they have been selected and may suffer financial loss as a result. In other respects, the explanatory notes to this provision refer to the views put forward in the explanatory notes to Article 3 of the legislative bill that was submitted to the 138 th Legislative Assembly and became Act no. 146/2009. Criminal Procedure Act no. 88/2008 ( lög um meðferð sakamála ).”

28 . The relevant provisions of the Criminal Procedure Act set out:

Section 116

“Any person who has reached the age of 15 years, is subject to Icelandic jurisdiction and is not an accused or his/her representative, is obliged to appear in court as a witness to answer orally questions addressed to him/her concerning the events in a case. Persons who have provided the prosecution or police with specialist assistance or advice before a case is brought are also obliged to appear in court as witnesses to answer orally questions addressed to them on specialist matters.

...”

Section 118

“A witness may refuse to answer a question if the person ’ s reply could conceivably comprise a confession or indication that the person had committed a criminal offence or include aspects that could cause the person moral injury or serious financial loss. The same applies if the answer could conceivably have the same consequences for someone connected to the witness in the manner referred to in the first or second paragraphs of section 117.

The judge may exempt witnesses from disclosing their business secrets, discoveries or other such items if, in the judge ’ s opinion, the witness ’ s interests in the secrecy are substantially greater than the interests of the testimony.”

Section 121

“...

If a witness appears in court but otherwise does not fulfil his/her obligation to bear witness, including the instructions of the judge as referred to in the fifth paragraph of section 116, the judge may, at the request of a party, levy a fine on the witness in a Ruling.

...”

29 . The relevant provisions of the Icelandic Penal Code from Chapter XXVI, about Enrichment offences, read as follows:

Article 241

“In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party.

A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter ’ s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.”

Article 247

“In case a person embezzles funds or other valuables which are in his/her custody, but owned by another, without the act, however, being subject to Art. 246, he/she shall be subject to imprisonment for up to 6 years.

In case a person has used another ’ s funds without authority for his/her own requirements he/she shall be punished therefore in accordance with para. 1, irrespective of whether or not he/she has been in duty bound to maintain the money segregated from his/her own funds.

Article 248

In case a person induces another to do or omit something by unlawfully arousing, promoting or utilizing his/her incorrect or vague idea about some incidents and thus deprives him/her or others of funds, this is subject to imprisonment for up to 6 years.

Article 249

In case a person who has been placed in a position to do something to which another has been confined or handles financial affairs for others abuses this his/her position, this will be subject to imprisonment for up to 2 years and the penalty may be rendered heavier in case of a very major offence or up to 6 years ’ imprisonment.”

30 . Section 26(1) of the Tort Liability Act No. 50/1993 ( Skaðabótalög ) reads :

Section 26

“(1) A person who

a. deliberately or through gross negligence causes physical injury or

b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party

may be ordered to pay non-pecuniary damages to the injured party.”

31 . The relevant provision of the Civil Procedure Act no. 91/1991 ( lög um meðferð einkamála ) reads as follows:

Section 24

“The courts shall have the power to judge regarding any matter at issue covered by domestic law unless it is excluded from their jurisdiction by act of law, by contract, or according to custom or the nature of the case. If the matter at issue does not come under a court ’ s jurisdiction, the judge shall dismiss the case from court.

If a judge considers that a case belongs under the jurisdiction of another court, or that it should be conducted according to the rules on criminal procedure or according to procedure relating to disputes over enforcement measures or the division of estates, he or she shall dismiss it from court.”

Section 25

“Courts may not be required to give opinions on legal matters or on whether a specific event has taken place except to the extent necessary to resolve a specific claim in a court case.

If a plaintiff has legally protected interests in having a court rule on the existence or substance of rights, or of a legal relationship, he or she may apply for a judgment recognising claims in this regard. This shall apply irrespective of whether he or she could, alternatively, have sought an enforceable judgment.

A company or association of persons may conduct a case in its own name for the recognition of specific rights of its members or their release from specific obligations, providing that the protection of the rights to which the claim before the court pertains is compatible with the aims of the company or association.”

COMPLAINTS

32 . The applicant complained that the proceedings before the SIC were de facto criminal proceedings against him and that, accordingly, he was deprived of his rights as guaranteed by Article 6 §§ 1, 2 and 3 of the Convention. He also relied on Articles 8 and 13 of the Convention.

THE LAW

33 . The Government submitted from the outset that the applicant had knowingly misrepresented the facts and domestic law in his application to the Court to such an extent that it amounted to an abuse of the right of application within the meaning of Article 35 § 3 of the Convention which, insofar as relevant, reads as follows:

“The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of application”.

34 . The applicant disagreed.

35 . The Court reiterates that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia , no. 798/05 , §§ 62 and 65, 15 September 2009). However, the rejection of an application on grounds of abuse of the right of application is an exceptional measure (see Miroļubovs and Others , cited above, § 62) and has so far been applied only in a limited number of cases. In particular, the Court has rejected applications as abusive under Article 35 § 3 of the Convention if they were knowingly based on untrue facts or misleading information (see Gross v. Switzerland [GC], no. 67810/10 , § 28, ECHR 2014; and the cases cited therein) or if they contained offensive language (see, for example, Řehák v. Czech Republic (dec.), no. 67208/01 , 18 May 2004) or if the principle of confidentiality of friendly-settlement proceedings had been breached (see, for example, Tsonev v. Bulgaria , (dec.) no. 44885/10 , 8 December 2015; and Ausad Valimised Mtü v. Estonia (dec.), no. 40631/14 , 27 September 2016).

36 . Turning to the present case, the Court notes that some facts and description of domestic law, as presented by the applicant, were indeed exaggerated or inaccurate. The Court is not fully convinced, though, that they were knowingly presented as untrue facts or misleading information to such an extent that it would amount to abuse of petition.

37 . It follows that the Government ’ s objection to that effect must be dismissed.

38 . The Government submitted that these complaints should be declared inadmissible because the applicant had failed to exhaust domestic remedies and because Article 6 of the Convention did not apply to the proceedings before the SIC.

39 . The applicant insisted that the SIC had overstepped its mandate and that the proceedings before it were de facto criminal proceedings against him, and that accordingly he had been deprived of his rights as guaranteed by Article 6 §§ 1 and 3 of the Convention.

40 . The Court finds it unnecessary to examine the Government ’ s objection as to non-exhaustion of domestic remedies since, in any event, it considers that the complaints fall outside the scope of Article 6 for the following reasons.

41 . The starting point for the assessment of the applicability of the criminal aspect of Article 6 of the Convention to the present proceedings is the criteria outlined in Engel and Others v. the Netherlands ( 8 June 1976, §§ 82-83 , Series A no. 22).

42 . Moreover, the Court has on several occasions found that Parliamentary inquiry proceedings fall outside the scope of Article 6 under its criminal head (and its civil head) when such proceedings do not determine a criminal charge, and when information provided by an individual during such proceedings cannot be used as evidence in a subsequent criminal trial against that individual (see, inter alia , Rywin v. Poland , nos. 6091/06 and 2 others, § 217, 18 February 2016; Van Vondel v. the Netherlands (dec.), no. 38258/03, 23 March 2006; Montera v. Italy (dec.), no. 64713/01 , 9 July 2002, and, as a similar example, Kwiatkowski v. Poland (dec.) [Committee], 58996/11, 23 April 2019).

43 . In the present case, the SIC was assigned the specific task of investigating the participation of the German Bank Hauck & Aufhäuser Privatbankier KGaA in the purchase in 2003 of the Icelandic state ’ s share in Búnaðarbanki Íslands hf. . The investigation was of broad public interest. It was not directed at the applicant or any specific persons per se, but inevitably included all the relevant persons and legal entities that had been involved in the transaction in 2003. Being established as a one-member Commission under Article 2(2) of Act no. 68/2011, the SIC was not entrusted with taking a position on whether individuals or legal persons could possibly be criminally liable under law in the manner specified in Article 5(2) of the Act.

44 . No criminal charges were ever formally brought against the applicant, be it by the SIC, the Parliament, the Director of Public Prosecution or any other body, relating to the applicant ’ s role in the purchase of the Icelandic state ’ s stake in Búnaðarbanki Íslands hf . (see, a contrario , Deweer v. Belgium , 27 February 1980, § 44, Series A no. 35, and Rywin , cited above, § 19).

45 . Moreover, the applicant was never penalised, nor were any sanctions imposed having at least a partly punitive and deterrent character as a consequence of the SIC ’ s report (see, a contrario , amongst others, Matyjek v. Poland (dec.), no. 38184/03, § 36, ECHR 2006-VII; and Deweer , cited above, § 45 ).

46 . It remains to be examined whether a charge was nevertheless “substantively” brought against the applicant for an offence, which by its very nature would bring it under the “criminal” sphere.

47 . In its conclusions, t he SIC noted that, in Icelandic legal terminology, the concept of “deception” ( blekking ) generally included instilling, reinforcing or exploiting someone ’ s false or vague notion of some events, and that the general understanding of this concept could be considered essentially the same. It thereafter concluded , inter alia , that the Icelandic Government had been deceived as to the involvement of Hauck & Aufhäuser in the privatisation of Búnaðarbanki Íslands hf.; and that the investigation had cast a clear and unequivocal light on who had practised that deception, carried it out and had maintained it ever since, either by concealing their knowledge of the actual involvement of Hauck & Aufhäuser or insisting otherwise, despite better knowledge.

48 . The Court points out, though, that, in 2003, the Icelandic State had received the negotiated purchase price for its share in Búnaðarbanki Íslands hf. and that the SIC did not maintain that an enrichment offence comparable to any of the offences set out in Chapter XXVI of the Penal Code, or elsewhere, had been committed. Nor did it point to any specific provisions in the legislation covering the concept of deception. The SIC did not conclude or state, either, that the applicant had acted unlawfully or engaged in a criminal activity.

49 . In these circumstances, the Court is satisfied that the SIC, in its conclusions, did not substantively bring a charge against the applicant for an offence which, by its very nature, would bring it under the “criminal” sphere.

50 . If a charge had subsequently formally been brought against the applicant, it cannot be ruled out that the initial investigation by the SIC could have been considered an integral part of the criminal proceedings, (see, for example, Haarde v. Iceland , no. 66847/12, §§ 78-79, 23 November 2017, albeit about impeachment proceedings ) . It will be recalled that the manner in which Article 6 is to be applied during the investigation stage depends on the special features of the proceedings involved and on the circumstances of the case (see, notably, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 , 50571/08 , 50573/08 and 40351/09 , § 253, 13 September 2016, with further references).

51 . In the present case, however, it was clear before the investigation before the SIC had even commenced, as specifically set out by the Althingi Ombudsman (see paragraph 11 above), that due to the provisions on limitations in the Penal Code, no individuals or legal persons could be held criminally liable for any behaviour or acts committed in connection with the sale of the Icelandic state ’ s share in Búnaðarbanki Íslands hf . in 2003. That opinion was shared and repeated by the SIC when defining the scope of its investigation (see paragraph 15 above).

52 . Moreover, and in any event, by virtue of Article 10(5) of Act no. 68/2011, any information that the applicant might have provided to the SIC during the proceedings before it could not have been used as evidence in a subsequent criminal case against him .

53 . Having regard to all the above, the Court considers that the proceedings before the SIC fall outside the scope of Article 6 under its criminal head.

54 . It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention .

55 . The applicant also complained that the conclusions by the SIC, and the public statements by K.B.B. and F.Þ.V. on 29 March 2017 about the said conclusions, contravened the principle of the right to presumption of innocence as guaranteed by Article 6 § 2 of the Convention and the right to respect for his private life within the meaning of Article 8 § 1 of the Convention .

56 . In respect of Article 6 § 2 of the Convention the Court reiterates that, in addition to being a procedural guarantee in the context of a criminal trial, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they were in fact guilty as charged (see, for example, Allen v. the United Kingdom [GC], no. 25424/09 , §§ 93–94, ECHR 2013).

57 . However, where no such proceedings are - or have been - in existence, statements attributing criminal or other reprehensible conduct are relevant rather to considerations of protection against defamation and adequate access to court to determine civil rights and raising potential issues under Articles 8 and 6 of the Convention (see, among others, Ismoilov and Others v. Russia , no. 2947/06, § 160, 24 April 2008). Accordingly, the Court will examine this complaint under Article 8 alone. However, this conclusion does not prevent the Court from taking into account the interests sought to be protected by Article 6 § 2 in the balancing exercise carried out below (see, for example, Kwiatkowski , cited above, § 3).

58 . The Government submitted that the applicant had failed to exhaust either of the following domestic remedies which were available and effective.

59 . Under the Civil Procedure Act no. 91/1991, the applicant could have filed a claim against the Icelandic State for annulment of certain passages in the SIC ’ s report or sought a declarative judgment that parts of the report were erroneous.

60 . Alternatively, the applicant could have brought a claim in tort against the State, on the basis that he had suffered financial and/or personal emotional injury, including damages for breach of his right to protection of his reputation, under Article 26 of Act no. 50/1993 on Tort Liability. Although the members of the SIC were exempt from any personal liability under Article 14 of Act no. 68/2011, it was explicitly stated in the same provision that the State was liable for their activities, both under national and international law.

61 . The applicant contended that none of the remedies suggested by the Government were effective within the meaning of Article 13 of the Convention, since they could not have prevented a violation of the Convention, nor have provided adequate redress therefor.

62 . He maintained that he could not have obtained an annulment of passages in the report, since annulment cases can only be directed against administrative bodies and institutions, not against the State itself, and the report by the SIC did not contain or entail an administrative decision in respect of the applicant, nor did it have a legally binding effect on him.

63 . For the same reasons, it would be highly unlikely that the applicant could have obtained a declarative judgment stating that certain parts of the SIC ’ s report were erroneous.

64 . The applicant also contested that he could have brought a civil action for damages under the Tort Liability Act, since section 14 of Act no. 68/2011 provided indemnity for members of a SIC, and there was no precedent for the Icelandic State being held liable for the actions of SIC members.

65 . Finally, for the sake of completeness, the applicant also submitted that he could not have made a defamatory action under Article 241 of the Penal Code either, again since section 14 of Act no. 68/2011 ruled out such actions against the members of an SIC.

66 . The Court reiterates that the purpose of the o bligation to exhaust domestic remedies is to afford the Contracting State the opportunity of preventing or putting right the violation alleged against them before those allegations are submitted to the Court. It refers to the principles set out, inter alia , in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

67 . The Government have pointed to remedies under the Civil Procedure Act and the Tort Liability Act. The Court does not find it necessary to examine whether filing a claim for annulment under the Civil Procedure Act would have been an effective remedy, since in any event it notes that under section 26 of Act no. 50/1993 on Tort Liability the applicant could have brought a civil action against the Icelandic State, claiming damages for breach of his right to protection of his reputation. It also notes that, although the members of the SIC were exempted from any personal liability under Article 14 of Act no. 68/2011, it was explicitly stated in the same provision that the State was liable for their activities, both under national and international law. Finally it was foreseen, in the explanatory notes to Article 14 of Act no. 68/2011, that the rule on exemption for Commission members combined with State liability clearly covered tort liability. However, it was pointed out that the rule also covered all types of claim for declaratory judgments, claims for annulment of comments and other types of civil law claims.

68 . The Court has thus no reason to doubt that, in the context of civil proceedings, the domestic courts would have been able to examine the applicant ’ s allegation that the SIC report contained passages and implied conclusions which were repeated by K.B.B. and F.Þ.V. on 29 March 2017, which breached his right to protection of his reputation as guaranteed by Article 8 of the Convention and that the courts, if appropriate, could award compensation for pecuniary and non-pecuniary damage (see, for example , mutatis mutandis , Sigurður Einarsson and Others v. Iceland , no. 39757/15, § 124, 4 June 2019, and Ó lafsson v. Iceland , no. 58493/13, § 20, 16 March 2017).

69 . The applicant pointed out that there was no precedent for the Icelandic State ever being held liable for the actions of SIC members in such a situation. The Court recalls that “to be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success ... however, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress” (see Vučković and Others v. Serbia, cited above, § 74).

70 . In the light of the aforementioned considerations, the Court concludes that this complaint must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

71 . Lastly, the applicant complained that he did not have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention.

72 . The Court reiterates that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). In the present case the Court has found above that the applicant ’ s complaint under Article 6 is incompatible ratione materiae , and his complaint under Article 8 is to be rejected for non-exhaustion. Accordingly, in so far as he is complaining under Article 13 in conjunction with Article 6, this complaint must be rejected as incompatible ratione materiae, and in so far as he is complaining under Article 13 in conjunction with Article 8, this complaint must be rejected as manifestly ill-founded, both within the meaning of Article 35 §§ 3 (a) and 4 of the Convention (see, among others, ÄŒonka v. Belgium , no. 51564/99 , § 76, ECHR 2002 ‑ I).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

D one in English and notified in writing on 17 June 2021 .

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Olga Chernishova Dmitry Dedov Deputy Registrar President