Information Note on the Court’s case-law 212

November 2017

Haarde v. Iceland - 66847/12

Judgment 23.11.2017 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Impartial tribunal

Independent tribunal

Alleged unfairness of proceedings to impeach the prime minister: no violation

Article 7

Article 7-1

Nullum crimen sine lege

Alleged lack of clarity of legal provisions governing impeachment: no violation

Facts – The applicant was prime minister of Iceland between 2006 and 2009. In December 2008 the Icelandic Parliament set up a Special Investigation Commission (SIC) to investigate and analyse the collapse of the Icelandic banking system in Oct ober 2008. It also formed an ad hoc parliamentary review committee (PRC) to examine the SIC’s report and decide whether there were grounds for impeachment proceedings. The SIC’s report blamed the applicant and two other former ministers for failing to resp ond appropriately to the economic danger caused by the banks’ deteriorating situation. The PRC subsequently submitted a proposal for impeachment proceedings on the basis of which Parliament passed a resolution for the applicant’s impeachment for negligent conduct. It also appointed a prosecutor, who was one of the persons the PRC had heard evidence from when deciding whether sufficient grounds for prosecution existed.

The applicant was tried by a Court of Impeachment and convicted of one count of gross neg ligence under Article 17 of the Constitution in conjunction with section 8(c) of the Ministerial Accountability Act for failing to hold ministerial meetings on “important government matters” ahead of the crisis. He was not sentenced to any punishment and t he State was ordered to bear all the legal costs.

In the Convention proceedings the applicant complained under Articles 6 and 7, inter alia , that the pre-trial investigation had been deficient, that the court which had tried him had not been impartial and that the provisions under which he had been found guilty of criminal conduct were not clear and foreseeable.

Law

Article 6: In view of the number and nature of the violations alleged by the applicant, the Court dealt with the Article 6 complaints together following, so far as possible, the chronology of the domestic proceedings.

(a) Pre-trial stage – The Court reite rated that the manner in which Article 6 was to be applied during the investigation stage depended on the special features of the proceedings involved and on the circumstances of the case. In the instant case, none of the measures taken or events occurring during the handling of the case by the PRC, Parliament and the prosecutor had affected the applicant’s position in a manner that could render the subsequent stages of the proceedings unfair. Nor could the pre-trial proceedings be considered to have had su ch an effect when examined as a whole.

In reaching that conclusion, the Court found that (i) the pre-trial collection of the evidence could not be said to have been deficient to the applicant’s detriment; (ii) the applicant had had ample opportunity to ac quaint himself with the case materials and prepare his defence and there was no indication that he and his counsel were given insufficient information to understand the charges; (iii) there was nothing to indicate that the rules of procedure were applied i n a manner that prejudiced the fairness of the applicant’s trial; and (iv) the prosecutor’s involvement during the examination of the case by the PRC had not breached the principle of the presumption of innocence as her role had been to establish whether t here were sufficient grounds for prosecution and she had not given any statements to the public or taken any judicial decisions in the case.

As to the applicant’s allegation that the process of deciding whether to bring charges had been arbitrary and polit ical, the Court noted that the Contracting States had adopted varied approaches to the important and sensitive questions concerning the criminal liability of members of government for acts or omissions that have taken place in the exercise of their officia l duties. It was not for the Court to seek to impose any particular model. Its task was to conduct a review of the concrete circumstances of the case on the basis of the complaints brought before it.

The Court was mindful of the fact that while the purpose of the relevant constitutional, legislative and procedural frameworks on this subject should be to seek a balance between political accountability and criminal liability, and to avoid both the risk of impunity and the risk of ill-founded recourse to crimi nal proceedings, there may be risks of abuse or dysfunctionalities, which had to be avoided. The Court was aware of the importance of ensuring that criminal proceedings were not misused for the purpose of harming political opponents or as instruments in po litical conflict. It therefore had to bear in mind the need to ensure that the necessary standards of fairness were upheld regardless of the special features of the proceedings.

The impeachment proceedings in the applicant’s case were based on a decision o f Parliament. From a comparative perspective, parliamentary involvement was not uncommon in the context of decisions as to whether criminal proceedings should be brought against a member of government for acts undertaken in the exercise of ministerial func tions and was not in itself sufficient to raise an issue under Article 6, bearing in mind that the charges brought by Parliament were examined and adjudicated upon by a court of law. Furthermore, the negligence imputed to the applicant concerned an objecti ve legal obligation and there was no indication that Parliament’s decision to bring charges was based on insufficient information.

Thus, while party preferences may have played a role in the parliamentary vote, the process leading to the applicant’s indict ment had not been arbitrary or political to such an extent that the fairness of his trial was prejudiced.

(b) Independence and impartiality of the Court of Impeachment – The applicant had complained that the eight lay judges who had sat with the seven pro fessional judges on the Court of Impeachment had been appointed by Parliament, which was also the prosecuting authority in his case. He also complained that Parliament had interfered with the composition of the court during the proceedings by prolonging th e terms of the lay judges.

Although political sympathies could play a part in the process of appointment of lay judges to the Court of Impeachment, the Court did not consider that that alone raised legitimate doubts as to their independence and impartialit y. In that connection, it noted that, prior to taking seat on the court for the first time, judges were required to sign an oath that they would act conscientiously and impartially. It had not been shown that the lay judges sitting in the applicant’s case had declared any political affiliations concerning the subject-matter in issue or that there existed other links between them and Parliament which could give rise to misgivings as to their independence and impartiality.

The fact that the lay judges made u p a majority had had no impact either as the applicant was convicted by nine votes to six, where five out of the nine judges giving a guilty verdict were professional judges.

Likewise, the decision of Parliament to extend the term of the sitting lay judges was, in the circumstances, fully justified. The only alternative would have been to appoint new lay judges. As, effectively, they would have been appointed specifically for the case at hand, their participation could have given rise to justifiable doubts with regard to independence and impartiality. Conversely, the lay judges already sitting on the Court of Impeachment had been appointed years before the relevant events of the case took place and before the proceedings against the applicant started. Furthe rmore, there had been parliamentary elections in the meantime and the sitting lay judges had thus not been appointed by the same Parliament that had decided to prosecute the applicant.

Accordingly, having regard to the particular circumstances of the case and the special character of the Court of Impeachment, there was nothing to show that it had failed to meet the requirements of independence and impartiality under Article 6 § 1.

(c) Trial and judgment – The applicant had asserted that uncertainty concern ing the details of the charges against him and the arguments on which the prosecution intended to base them had persisted until the end of the proceedings and had given the Court of Impeachment an excessive margin of appreciation as to the grounds on which it would base its verdict.

The Court disagreed. The offence of which the applicant was found guilty was sufficiently described in the indictment and was furthermore covered by the prosecution’s pleadings before the Court of Impeachment; the applicant had been fully able to respond to the indictment, the pleadings and the evidence presented, and the Court of Impeachment had set out the factual and legal reasoning for the conviction at length without straying beyond the prosecution case or a reasonable readi ng of the legal provisions applied. Accordingly, neither the trial before the Court of Impeachment nor the reasoning given in its judgment had breached the guarantees set out in Article 6.

Conclusion : no violation (unanimously).

Article 7: Article 17 of th e Icelandic Constitution was a provision of central importance in the constitutional order, in that it set out important principles on how the Government were expected to function, as a collegial organ for important matters of State governance and policy-m aking. The applicant as Prime Minister and Head of Government was responsible for ensuring that the requirements of Article 17 were complied with. The Court agreed with the Court of Impeachment that that provision could not be regarded as lacking in suffic ient clarity, even though the notion of “important government matters” the former prime minister had been found guilty of neglecting could necessarily be a matter of interpretation. The conclusions drawn by the Court of Impeachment as regards the meaning t o be given to the relevant provisions and their application to the conduct of the applicant had to be considered to have been well within its remit to interpret and apply national law and the offence for which the applicant was convicted was sufficiently d efined in law. Accordingly, the applicant could reasonably have foreseen that his conduct would render him criminally liable under the Constitution and the Ministerial Accountability Act.

Conclusion : no violation (six votes to one).

© Council of Europe/Eu ropean Court of Human Rights This summary by the Registry does not bind the Court.

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