Published on 30 May 2022

THIRD SECTION

Application no. 25207/21 Jóhannes BALDURSSON against Iceland lodged on 4 May 2021 communicated on 13 May 2022

SUBJECT MATTER OF THE CASE

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

The applicant was the director of Glitnir Bank’s capital markets division prior to its collapse in October 2008. Glitnir Bank ran a fund management company, Glitnir Funds Ltd. ( Glitnir sjóðir ehf. ), which in turn ran a number of investment funds, including the investment fund GLB FX.

On 10 February 2014, the applicant was indicted, alongside two others, on one count of fraud by abuse of position ( umboðssvik ) in relation to GLB FX’s purchase of a bond issued by the company Stím Ltd.

During the trial, the applicant made several requests for access to certain documents. First, the applicant requested that three documents pertaining to witnesses in the case, one of whom was granted immunity from prosecution in the case, be submitted to the court. That request was refused by a ruling of the District Court on 13 November 2014, which was later confirmed on appeal. Second, the applicant requested access to a number of documents relating to Glitnir bank and the aforementioned witness, as well as access to the “full collection of data” in the case and the search system employed by the investigators to find relevant evidence in that data. That request was refused by a ruling of the District Court on 3 March 2015, which was later confirmed on appeal. Third, the applicant requested that the investigators conduct a search in the “full collection of data” using certain keyword searches and that he be granted access to the results which the search returned. That request was refused by a ruling of the District Court on 17 April 2015, which was later confirmed on appeal. Fourth, the applicant requested that a report on the aforementioned witness, who was granted immunity from prosecution in the case, be submitted to the court. That request was refused by a ruling of the District Court on 5 November 2015, which was later confirmed on appeal.

The applicant was convicted by the Reykjavik District Court on 21 December 2015, by a panel composed of two professional judges (S.S. and S.H.) and one ad hoc lay judge (H.S.B.). On 1 June 2017, the Supreme Court, upon the applicant’s appeal, quashed the District Court’s judgment, on the grounds of a lack of impartiality on the part of S.H., and remitted the case for a fresh examination on the merits.

The case was re-examined by the District Court, where S.H. was replaced on the panel by another professional judge, I.E.

By a judgment of 21 December 2017, the applicant was convicted as charged, and sentenced to two years’ imprisonment. Judge I.E. voted to acquit the applicant.

By a judgment of 26 June 2020, the Court of Appeal upheld the applicant’s conviction but reduced his sentence to 18 months’ imprisonment, suspended for two years.

The applicant’s leave to appeal was refused by the Supreme Court on 26 November 2020.

The applicant complains firstly that he was granted insufficient access to documents relating to the prosecution, resulting in a violation of his rights under Article 6 §§ 1 and 3 (b) of the Convention. Secondly, the applicant complains that his right to a trial by an independent and impartial tribunal under Article 6 § 1 was violated on account of the manner of appointment of H.S.B. He submits that her independence and impartiality vis-à-vis S.S., the District Court judge acting as president of the panel in the case, were compromised by insufficiencies in the legal framework which dictated the appointment of ad hoc lay judges at the material time.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the principle of the equality of arms and the applicant’s right to prepare his defence under Article 6 §§ 1 and 3 (b) of the Convention due to restrictions on the applicant’s right to access to documents (see Rowe and Davis v. the United Kingdom , no. 28901/95, § 60, 16 February 2000, Natunen v. Finland , no. 21022/04, §§ 47-50, 31 March 2009, and Sigurður Einarsson and Others v. Iceland , no. 39757/17, §§ 85-93, 4 June 2019)?

Has the applicant exhausted available domestic remedies in respect of this complaint as required by Article 35 § 1 of the Convention?

2. Has there been a violation of the applicant’s right to a trial by an independent and impartial tribunal under Article 6 § 1 of the Convention on account of the participation of H.S.B. as an ad hoc lay judge before the District Court, in particular with regard to the legal framework applicable to her appointment, participation in the panel, and remuneration (see, for example, Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 49, ECHR 2013 (extracts), and Parlov-Tkalčić v. Croatia , no. 24810/06, § 86, 22 December 2009 )?

Has the applicant exhausted domestic remedies in respect of this complaint as required by Article 35 § 1 of the Convention?