THIRD SECTION

DECISION

Applications nos. 60288/19 and 60307/19 Jón Ásgeir JÓHANNESSON against Iceland and Tryggvi JÓNSSON against Iceland

(see appended table)

The European Court of Human Rights (Third Section), sitting on 10 December 2022 as a Committee composed of:

Darian Pavli , President , Ioannis Ktistakis, Andreas Zünd , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The list of applicants is set out in the appended table.

The applicants were represented by Mr Gestur Jónsson, a lawyer practising in Reykjavik.

The applications concern the applicants’ request for the reopening of criminal tax proceedings against them, following the Court’s judgment in the case of Jón Ásgeir Jóhannesson and Others v. Iceland , no. 22007/11, 18 May 2017, wherein the Court found a violation of the applicants’ rights under Article 4 of Protocol No. 7 to the Convention.

The applicants applied for the reopening of their criminal case to the Committee on the Reopening of Judicial Proceedings (the “Reopening Committee”). By a decision of 12 April 2018, the Committee approved their request. Pursuant to the domestic law applicable at the time of events, the Director of Public Prosecutions issued summons to the applicants and the case was heard by the Supreme Court on 8 May 2019. Prior to the hearing, the Supreme Court instructed the parties to address in their oral pleadings whether the conditions for reopening were fulfilled.

By a judgment of 21 May 2019, the Supreme Court overruled the Reopening Committee and refused to reopen the case against the applicants. Its judgment found that the domestic law did not grant an explicit right to reopen judicial proceedings following the finding of a violation by a judgment of the European Court of Human Rights, and furthermore that the details of the applicants’ case did not fulfil the general reopening criteria laid down in section 228(1) of the Criminal Procedures Act No. 88/2008.

In their applications to the Court, lodged on 17 November 2019, the applicants complained that the Supreme Court’s judgment had violated their rights under Article 4 of Protocol No. 7 to the Convention. They also complained under Article 6 of the Convention that the refusal to reopen their cases had violated their right to a fair trial. The applicants’ complaints under Article 6 of the Convention and Article 4 of Protocol No. 7 were communicated to the Icelandic Government (“the Government”) on 19 April 2021, together with a question concerning the Court’s jurisdiction to examine these complaints.

On 1 December 2020, a new Court on the Reopening of Judicial Proceedings (the “Reopening Court”) was established by Act No. 47/2020. Contrary to the Reopening Committee, the Reopening Court’s rulings on whether or not to grant the reopening of judicial proceedings are final and cannot be appealed against. On 26 March 2021, the applicants applied for the reopening of their criminal tax proceedings to the Reopening Court.

After the parties in the present case had submitted their observations on the admissibility and merits of the applicants’ complaints, on 21 January 2022 the Reopening Court granted the applicants’ petition for reopening. The criminal proceedings against them were consequently reopened and are still ongoing.

THE LAW

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

As is noted above, the ruling of the Reopening Court was made subsequent to the parties’ submission of their observations on the admissibility and merits of the applicants’ complaints. The Government submitted this ruling of the Reopening Court to the Court, and the parties were invited to comment on its relevance to the present case.

The applicants submitted that they retained their victim status regardless of the reopening of their case, as redress could not be considered to have been provided to them unless the charges against them were dismissed and their overpaid fines and legal costs repaid. They submitted that they had been subjected to repeated injustice which had not been sufficiently compensated by the non-pecuniary damages awarded to them by the Court in its judgment. Moreover, they submitted that the reopening of their criminal proceedings did not in itself ensure that the charges against them would be dismissed or that they would be provided full redress.

The Government submitted that it was “not unlikely”, considering the Supreme Court’s recent case-law, that it would afford redress to the applicants. Moreover, the Government noted that should the Court continue its examination of the matter, the applicants’ complaints would be dealt with simultaneously at the domestic level and before the Court, in contradiction of the main purpose of Article 35 § 1 of the Convention.

The Court notes that the subject of the applicants’ complaints was the refusal by the Supreme Court on 21 May 2019 to grant reopening of the criminal proceedings against them. In the interim the applicable legislative framework has changed, meaning that the ruling of 21 January 2022 by the newly established Reopening Court granting the applicants’ petition for reopening is final and cannot be appealed against. As matters stand, further examination by the Court of the applicants’ complaints in the present case would entail the simultaneous examination of matters relating to the reopening of the criminal proceedings against the applicants by the domestic courts and by the Court.

In view of the above and noting the Court’s wide discretion in identifying grounds capable of being relied upon in striking out an application on the basis of Article 37 § 1 (c) of the Convention (see Baranin and Vukčević v. Montenegro , nos. 24655/18 and 24656/18, § 102, 11 March 2021), the Court considers that it is no longer justified to continue the examination of the applications within the meaning of that provision. Moreover, the Court considers 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 under Article 37 § 1 in fine . This finding is without prejudice to any complaints which the applicants might wish to bring at a later date, following the conclusion of the ongoing reopened proceedings.

Accordingly, the applications should be struck out of the list.

For these reasons, the Court, unanimously,

Decides to join the applications;

Decides to strike the applications out of its list of cases.

Done in English and notified in writing on 1 December 2022.

Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 of the Convention and Article 4 of Protocol No. 7 of the Convention

( ne bis in idem )

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

60288/19

17/11/2019

Jón Asgeir JÓHANNESSON

1968Jonsson Gestur

Reykjavik

60307/19

17/11/2019

Tryggvi JÓNSSON

1955Jonsson Gestur

Reykjavik