Communicated on 10 January 2020 Published on 27 January 2020

SECOND SECTION

Application no. 46015/16 Ivar GUDJONSSON against Iceland lodged on 2 August 2016

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s indictment and conviction for financial crimes, following the financial crisis of 2008.

The applicant was the director of the division of proprietary trading of Landsbanki Íslands hf. (hereinafter “ Landsbanki ”). Following the financial crisis, Alþingi (the Icelandic Parliament) passed Act No. 142/2008 on the Investigation of the Antecedents and Causes of the Collapse of the Icelandic Banks in 2008 and Related Events. Pursuant to the Act, a Special Investigation Commission (SIC) undertook an investigation into the lead-up to the financial crisis in Iceland. In the course of the investigation, the SIC interviewed and questioned numerous parties, including the applicant. Under Sections 8 and 11(1) of Act No. 142/2008, everyone was obliged to answer the SIC ’ s call for questioning, the refusal of which risked incurring a penalty of a fine or up to two years ’ imprisonment. Under Section 11(2), that penalty did not apply if answering the SIC ’ s questions entailed a risk of incrimination, serious endangerment of reputation or serious endangerment of finances of those questioned or their close relatives. Under Section 10, those questioned were permitted to be accompanied by an “assistant” ( aðstoðarmaður ) at their own expense. Un der Section 14(1) of Act No. 142/2008, the SIC was obliged to report any suspicion of criminal activity uncovered in the course of the investigation to the Director of Public Prosecutions. Under Section 14(6), it was forbidden to use any information provided by a person to the SIC as evidence in a subsequent criminal case against them. Under Section 14(5), information on cases according to Section 14(1) should be published in the SIC ’ s report. Chapter 22 of the SIC ’ s report, entitled “Reports on the basis of Section 14 of Act No. 142/2008”, makes no reference to the applicant but does mention the banks ’ practice of trading in their own shares as one of the elements meriting investigation. The report was published on 12 April 2010.

The applicant was indicted on 15 March 2013 for market manipulation, following a charge on 19 October 2010 from the Financial Supervisory Authority to the Special Prosecutor (cf. Act No. 135/2008 on the Office of the Special Prosecutor). The indictment concerned trading in the bank ’ s own shares made on 228 business days, from 1 November 2007 to 3 October 2008. The applicant ’ s co-defendants under this charge were two traders in the proprietary trading division and the bank ’ s former CEO.

On 19 November 2014 the District Court of Reykjavík convicted the applicant and one of the traders for trading on five business days, from 29 September to 3 October 2008. The applicant was sentenced to nine months ’ imprisonment, of which six months were suspended for two years.

The applicant appealed against the judgment to the Supreme Court of Iceland. On 4 February 2016, the Supreme Court rendered a judgment convicting the applicant and the two traders for trading on the 228 business days for which they were indicted. The applicant was sentenced to two years ’ imprisonment.

The applicant firstly complains of a violation of his right under Article 6 § 3(c) to enjoy legal assistance regarding his questioning by the SIC. Secondly, he complains of a violation of his right under Article 7 on account of insufficient clarity and foreseeability of the relevant legal framework, and the interpretation of the said framework de facto retroactively rendering his actions criminal. Thirdly, he raises in substance a complaint that the Supreme Court ’ s partial overturning of the District Court ’ s finding violated his right to a fair trial as it disregarded testimony heard by the District Court and did not hear witnesses itself. Fourthly, the applicant complains that declarations by officials in fringed his right under Article 6 § 2 to be presumed innocent. Finally, he complains that his trial was not conducted within a reasonable time, in violation of Article 6 § 1.

QUESTIONS TO THE PARTIES

1. Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3(c) of the Convention? In particular, at what point was there a “criminal charge” against the applicant (see, inter alia , Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-111, 12 May 2017)?

2. Did the applicant ’ s conviction entail a violation of the principle of nullum crimen sine lege as guaranteed by Article 7 of the Convention (see, inter alia , Haarde v. Iceland , no. 66847/12, § 127, 23 November 2017, and Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010)?

3. Did the applicant ’ s conviction by the Supreme Court constitute a breach of his right to a fair trial under Article 6 § 1 of the Convention? In particular, did the Supreme Court assess the applicant ’ s guilt, in whole or in part, on the basis of testimony provided by the accused and witnesses before the District Court without the Supreme Court having itself directly heard the accused or the witnesses in question (see, inter alia, Sigurþór Arnarsson v. Iceland , no. 44671/98, 15 July 2003, Botten v. Norway , 19 February 1996, Reports of Judgments and Decisions 1996 ‑ I, Styrmir Þór Bragason v. Iceland , no. 36292/14, 16 July 2019 and Júlíus Þór Sigurþórsson v. Iceland , no. 38797/17, 16 July 2019)?

4. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in particular as regards the allegedly prejudicial statements referred to by the applicant (see, inter alia, Ismoilov and Others v. Russia , no. 2947/06, § 166, 24 April 2008) ?

5. Was the length of the criminal proceedings in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see, inter alia, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 ‑ II) ?