THIRD SECTION

DECISION

Applications nos. 42672/16 and 34850/17 Sindri SVEINSSON against Iceland

The European Court of Human Rights (Third Section), sitting on 12 October 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges,

and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above applications lodged on 20 July 2016 and 2 May 2017 respectively,

Having regard to the declaration submitted by the Icelandic Government (“the Government”) on 8 December 2020 requesting the Court to strike the applications out of the list of cases, the applicant’s reply to that declaration, and the Government’s further comments in reply,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Sindri Sveinsson, is an Icelandic national who was born in 1978 and lives in Reykjavik. He was represented before the Court by Mr Reimar Pétursson, a lawyer practising in Reykjavik.

2. The Government were represented by their Agent, Mr Einar Karl Hallvarðsson, State Attorney General.

3. The applications concern the applicant’s indictment and conviction for financial crimes, following the financial crisis of 2008. The applicant was a trader at Landsbanki Íslands hf. By a judgment of the Reykjavik District Court of 19 November 2014, he was acquitted of market manipulation. By a judgment of 4 February 2016, the Supreme Court overturned the applicant’s acquittal, convicted him and sentenced him to nine months’ imprisonment.

4. The applicant complained that several aspects of the criminal proceedings in his case had violated his rights under Article 6 § 1 and Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

5. Notice of the applications was given to the Government .

THE LAW

6. The applicant firstly complained that the Supreme Court had reversed the District Court’s findings without hearing the defendants or the witnesses in person, and that in the process it had reassessed the evidentiary value of witness statements it had not heard, violating his right to a fair trial under Article 6 § 1. Secondly, the applicant alleged that his right under Article 7 had been violated owing to the insufficient clarity of the legal provisions relevant to his prosecution and the overturning of the burden of proof.

7. In addition, in a subsequent application, the applicant complained that his right under Article 6 § 1 to be heard by an independent and impartial tribunal had been violated on account of the financial interests of two Supreme Court justices sitting on the bench in his case, namely E.T. and V.M.M.

8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

9. After attempts to reach a friendly settlement had failed, the Government informed the Court by a letter of 8 December 2020 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike the applications out of its list of cases in accordance with Article 37 of the Convention.

10. The declaration provided as follows:

“[T]he Government of Iceland acknowledge that there has been a violation of the applicant’s right to a fair trial under Article 6 § 1 of the Convention, with reference to the Court’s judgment in the case of Sigríður Elín Sigfúsdóttir v. Iceland , no. 41382/17, 25 February 2020, and the manner in which the applicant’s acquittal was overturned on appeal.”

11. In the declaration, the Government offered to pay the applicant 15,600 euros (EUR) to cover any non-pecuniary damage, as well as any costs and expenses incurred in the proceedings before the Court, plus any tax that might be chargeable to the applicant. The Government further noted that the applicant had the possibility of applying to the Court on Reopening of Judicial Proceedings for the reopening of the case against him, pursuant to Chapter XXXV of the Criminal Procedure Act no. 88/2008, as amended by Act no. 47/2020.

12. By a letter of 4 February 2021, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the grounds that the Government had not acknowledged that his conviction had lacked a proper basis in law, in violation of Article 7 of the Convention.

13. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if

“for any other reason established by the Court, it is no longer justified to continue the examination of the applications”.

14. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued.

15. To this end, the Court will examine below the declaration in the light of the principles emerging from its case-law, in particular Tahsin Acar v. Turkey ((preliminary objections) [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI; see also WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007, and SulwiÅ„ska v. Poland (dec.), no. 28953/03, 18 September 2007).

16. In respect of the applicant’s complaint that his right to be heard by an independent and impartial tribunal had been violated, the Court is satisfied that the Government’s acknowledgment of a violation of Article 6 § 1 of the Convention, together with their reference to the Court’s judgment in Sigríður Elín Sigfúsdóttir (cited above), amounts to a sufficiently explicit acknowledgment of a breach of the applicant’s right on account of the participation of Justice V.M.M. in the applicant’s trial.

17. In respect of the applicant’s complaint concerning the manner in which the Supreme Court overturned his acquittal without summoning the applicant and relevant witnesses and hearing evidence from them directly, the Court is satisfied that the Government’s acknowledgment of a violation of Article 6 § 1 on account of “the manner in which the applicant’s acquittal was overturned on appeal” amounts to a sufficiently explicit acknowledgment of a violation of the applicant’s right in this respect (see also Styrmir Þór Bragason v. Iceland , no. 36292/14, §§ 61-84, 16 July 2019, and Júlíus Þór Sigurþórsson v. Iceland , no. 38797/17, §§ 30-44, 16 July 2019).

18. According to the Court’s case-law, where a violation of Article 6 has been found, the reopening of domestic proceedings, if requested, is in principle an appropriate way, and often the most appropriate, of putting an end to the violation and affording redress for its effects (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 50 and 52, 11 July 2017). In this connection, bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and the Protocols thereto, it should be reiterated that it falls in the first place to the national authorities to redress any violations of the Convention.

19. The Court notes that the applicant has the possibility of applying to the Court on Reopening of Judicial Proceedings, which, pursuant to section 228(1), in conjunction with section 233(1), of the Criminal Procedure Act (as amended by Act no. 47/2020), can grant the reopening of the proceedings against him if certain conditions are fulfilled. These include the emergence of new documents or information which could have had great significance for the outcome of the case if they had been available before the judgment was announced (section 228(1)(a)), or the presence of serious defects in the processing of the case which affected its outcome (section 228(1)(d)). The preparatory works to Act no. 47/2020 specify that “new documents or information” is to be interpreted as encompassing, among other things, decisions and judgments of the European Court of Human Rights. The Court takes note of the Government’s reference to the applicant’s possibility of applying to the Court of Reopening. Having regard to the above and the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c) of the Convention).

20. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine ).

21. The Court considers that the amount proposed by the Government should be converted into Icelandic krónur at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision in accordance with Article 37 § 1 of the Convention. In the event of failure to settle within this period, simple interest is to be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

22. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

23. In view of the above, it is appropriate for the Court to strike the applications out of its list of cases in so far as they relate to the above-mentioned complaints.

24. In respect of the applicant’s complaint concerning the participation of Justice E.T. in his trial, the Court finds this complaint to be manifestly ill ‑ founded (ibid., §§ 54-55).

25. As concerns the applicant’s complaint under Article 7 of the Convention, he alleged in his application that the domestic courts’ interpretation of the legal provisions on the basis of which he had been convicted had been incorrect in concluding that the manner in which Landsbanki Íslands hf. had traded in its own shares had constituted market manipulation, and he also argued that the law had been contradictory. He further submitted that he had acted in good faith in assuming that Landsbanki Íslands hf.’s trading practice was lawful.

26. The Court reiterates that Article 7 requires criminal offences and their corresponding penalties to be clearly defined by law which is sufficiently foreseeable so that an individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him or her criminally liable. Article 7 cannot be read as outlawing the gradual clarification of the rules on criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see, for example, Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010, and the cases cited therein). In assessing that foreseeability, a lack of comparable precedents is not a decisive factor, and persons carrying out a professional activity must proceed with a higher degree of caution when pursuing their occupation and can be expected to take special care in assessing the risks that such activity entails (see Soros v. France , no. 50425/06, § 58, 6 October 2011; Khodorkovskiy and Lebedev v. Russia , nos. 11082/06 and 13772/05, § 821, 25 July 2013; Kononov , cited above, § 235).

27. In the light of the above, and having regard to all the evidence in its possession, the Court does not find any appearance of a violation of Article 7. This complaint must therefore be rejected pursuant to Article 35 § 4 as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike that part of the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the applications inadmissible.

Done in English and notified in writing on 18 November 2021.

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Olga Chernishova Georgios A. Serghides Deputy Registrar President