JOINT DISSENTING OPINION OF JUDGES SICILIANOS, RAVARANI AND SERGHIDES

1. With regret, we cannot agree with the majority’s finding that Article 6 of the Convention under its criminal limb is inapplicable in the present case.

2 . The Chamber judgment . The Chamber based its judgment on the applicability of the criminal limb of Article 6 and ultimately found that the said provision had not been violated. It noted that no maximum amount for court fines was provided for in domestic law and that the amount in the case at hand had been substantial. The Chamber also attached weight to the Icelandic Supreme Court’s finding that the fines imposed on the applicants had amounted to a criminal penalty and that this circumstance had not been disputed between the parties. Having regard in particular to the first Engel criterion, i.e. the legal classification of the offence under national law, the Chamber found no reason to disagree with the Supreme Court on this issue.

3. While it is true that the applicability of Article 6 had not been challenged by the Icelandic Government, the Chamber could have examined the question of its own motion, as this was a question of applicability ratione materiae of the Convention. [6]

4. The majority’s findings. In their memorial to the Grand Chamber, the Government, with reference to the Engel criteria, argued that Article 6 was inapplicable under its criminal limb and that none of the three criteria were met.

5. The majority has now endorsed the Government’s position as to its substance, finding that, although the application of the first two Engel criteria (classification under domestic law; nature of the offence) was inconclusive, the third (severity of the sanction) was definitely not met.

6. A different story can be told . It is true that such reasoning has its merits and can be followed. However, in the present case, where there is no absolute truth, a totally different story could likewise have been convincingly told. The application of the Engel criteria is not an exact science; much depends on where the emphasis is placed.

7. The following paragraphs are aimed at showing that a reasonable application of the Engel criteria, without overstretching their meaning, could also – and should have – led to the conclusion that the fines imposed on the applicants were of a criminal nature and that Article 6 was applicable.

8. The first Engel criterion. The judgment underlines that “the Convention without any doubt allows States ... to maintain or establish a distinction between criminal and disciplinary law, and to draw a dividing line” and “leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects” (see paragraph 76 of the judgment). It stresses that “[s]uch a choice ... in principle escapes supervision by the Court” (ibid.) whereas the converse, i.e. the classification of an offence as disciplinary is obviously subject to stricter rules because otherwise the fundamental clauses of Articles 6 and 7 would be subordinated to the States’ sovereign will, which would be incompatible with the purpose and object of the Convention. The Court wants to ensure that the “criminal” is “not improperly encroached upon”. The judgment even underlines that “nothing prevents the Contracting States from adopting a broader interpretation entailing a stronger protection of the rights and freedoms in question within their respective domestic legal systems (Article 53 of the Convention)” (see paragraph 93 of the judgment).

9. The philosophy behind the Court’s approach thus seems clear: no interference if a domestic system qualifies an offence as criminal, stricter scrutiny if it qualifies it as disciplinary. This makes perfect sense, as in order to ensure that the protection of Article 6 remains effective, in doubtful situations the balance should lean towards the applicability of the said provision. [7]

10. It is then surprising, to say the least, given that Icelandic law as authoritatively interpreted by the Icelandic Supreme Court qualified the offence at stake as criminal, to read in the subsequent developments that the Court “will enquire whether the provision(s) defining the offence charged belong, under the legal system of the respondent State, to criminal law” (see paragraph 77 of the judgment). At a later stage, the judgment returns to this issue and repeats that, in view of the considerations set out in paragraph 77, “when it comes to interpreting the scope of the concept of ‘crime’ in the autonomous sense of Article 6 of the Convention ... the Court will have to appraise the matter for itself”.

11. Until now the Court has called into question the classification of an offence only when the latter was qualified as non-criminal under domestic law. It is disconcerting to note that in the present case it engages in the opposite exercise. What is being called into question in this case is the domestic law’s qualification of an offence as criminal, authoritatively interpreted as such by the highest judicial body of the country concerned.

12. The Court’s case-law as relied on by the majority relates, without exception, to situations where the criminal nature of a penalty imposed on an applicant was disputed by the national government. Even more strikingly, in all of the judgments cited in support of the statement that the first of the Engel criteria is of relative weight and serves only as a starting-point (see paragraph 85 of the judgment) Article 6 was ultimately found to be applicable. The “relative weight” attached to domestic law consequently led the Court to disregard the national law that qualified a sanction as not being criminal. In the present case, the situation is just the reverse.

13. It is inopportune – and even contrary to Article 53 of the Convention – to ultimately grant lower protection in respect of the fairness of proceedings than the domestic authorities were prepared to do.

14. The second Engel criterion . As to the very nature of the offence, the applicants were fined for contempt of court. In the part of the judgment dealing with general principles, reference is made to various findings in Court’s case-law to the effect that the second criterion had not been fulfilled because the offence was not punished by the Criminal Code but by other laws, such as the Code of Criminal Procedure, or because the offence was disciplinary in nature, falling within the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings (see paragraph 81 of the judgment). Referring to the applicable domestic law, the majority, while acknowledging that the law on contempt of court “could be viewed as encompassing members of the whole population [when participating] in court proceedings” (see paragraph 86 of the judgment), noted however that the fine imposed on the applicants was on account of a provision which addressed a “specific category of people possessing a particular status, namely that of a ‘prosecutor, defence counsel or legal adviser’”. It underlined that lawyers occupy a central position in court proceedings and that the public must have confidence in the ability of the legal profession to provide effective representation. It added that contempt-of-court rules and sanctions form the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings and that measures ordered under such rules “are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence” (see paragraphs 86-89 of the judgment).

15. However, the majority adds an important qualification which brings the whole problem back to the first criterion, stating that “it is, of course, open to States to bring what are considered to be more serious examples of disorderly conduct within the sphere of criminal law” (see paragraph 89 in fine of the judgment). This should or at least could have lead the majority to simply endorse the Supreme Court’s findings that the applicants’ behaviour was of a criminal nature, as it acknowledges that the said court considered that it “entailed a severe violation of their professional duties” (see paragraph 90 of the judgment).

16. The conclusion under the second criterion is however inconclusive: stating very ambiguously that “the Supreme Court did not specifically refer to the nature of the applicants’ misconduct as a reason for considering it to be criminal” (see paragraph 90 of the judgment), the judgment concludes that “despite the seriousness of the breach of the professional duties in question, it is not clear whether the applicants’ offence is to be considered criminal or disciplinary in nature” (see paragraph 91 of the judgment).

17. After having underlined that it is open to States to bring what are considered more serious examples of disorderly conduct within the sphere of criminal law and that the behaviour of the applicants constituted a serious violation of their professional duties, it would have been much easier and straightforward to conclude, together with the Supreme Court, that the offence for which the applicants had been punished was criminal in nature.

18. The third criterion . As to the seriousness of the punishment, the majority refers to a series of elements taken from the Court’s case-law, such as the possibility to incur imprisonment, to have the fine converted into deprivation of liberty or the inclusion of the fine in one’s criminal record, none of these elements being present in the case before us. On the other hand, they acknowledge that the fine imposed – approximately EUR 6,200 – was high and that there was no statutory upper limit but they consider that this does not suffice “to deem the severity and nature of the sanction as ‘criminal’ in the autonomous sense of Article 6” (see paragraph 96 of the judgment).

19. Unfortunately, the reasoning under the third criterion is no more convincing than that under the first two. Regard should have been had – once more – to the Supreme Court’s reasoning in holding that the fine was “high” and emphasising that no explicit ceiling was provided for by law. It can be seen from the Icelandic case-law, as referred to in paragraphs 45 et seq. of the judgment, that the fine imposed on the applicants was ten times higher than any fine imposed previously. The fine was consequently high not only in absolute, but also and even more pertinently in relative terms. Such a fine clearly had a deterrent and, moreover, a specifically punitive character.

20. Furthermore, it is important to repeat that in deciding whether a sentence comes within the “criminal” sphere, is not only the actual amount of the fine imposed that has to be taken into consideration, but the absence of a ceiling provided for by domestic law. The majority acknowledges this in paragraph 82 of the judgment. [8] In the present case, there was no such ceiling.

21. The Grand Chamber should therefore have reached the conclusion that Article 6 under its criminal limb was applicable, and could have done so easily.

22. The consequences of the inapplicability of Article 6. One should never forget what it means not to fall under the umbrella of Article 6: nothing other than being deprived of the guarantees of fair proceedings. This can be seen in particular, in the field of disciplinary proceedings, but not only there. Huge interests can be at stake, and such proceedings can lead to extremely heavy sanctions. People can lose their jobs [9] , be subject to salary cuts or promotion bans [10] or even to arrest [11] . The prospect of not enjoying the guarantees of fair proceedings (adversarial, before independent and impartial judges, etc.) is not a very attractive one...

23. A missed opportunity . By holding that Article 6 is inapplicable, the Grand Chamber avoided addressing the real issue of interest in this case, namely the question of compliance with the requirements of Article 7 of the Convention, and more specifically the legality of the penalty imposed on the applicants in the absence of an explicit statutory ceiling.

[1] Paragraph numbering has been inserted in this text for the purpose of cross referencing.

[2] Section 11 of the CPA concerns the special arrangements imposed by a judge for court hearings. It provides for a general ban on sound recording and taking photographs during the hearings and for the possibility of allowing exceptions in special circumstances (paragraph 1). The second paragraph of this section establishes the possibility for the judge to proscribe the disclosure of information on the events of in camera proceedings.

[3] May 2014 is the month in which the Supreme Court judgment in the applicants’ case was delivered.

[4] The same does not necessarily apply to other factors determining the sentence, such as aggravating and mitigating circumstances. There, gradual clarification might be warranted (see Alimucaj v. Albania , no. 20134/05, §§ 154-62, 7 February 2012).

[5] This was confirmed in the internal research report prepared for this case. See also William A. Shabas, An Introduction to the International Criminal Court , p. 162, (2001), and Prosecutor v. Tadić , Case No. IT-94-1-A & IT-94-1-A bis , Judgments, Separate opinion of Judge Cassese, paragraph 4 (26 January 2000).

[6] See, among many other authorities, Trubić v. Croatia (dec.), no. 44887/10, 2 October 2012.

[7] It is striking to read in § 19 of the Guide on Article 6 (criminal limb) published on the Court’s website (Hudoc) that “[t]he first criterion is of relative weight and serves only as a starting-point. If domestic law classifies an offence as criminal, then this will be decisive. Otherwise the Court will look behind the national classification and examine the substantive reality of the procedure in question.”

[8] With reference to Ravnsborg v. Sweden , 23 March 1994, Series A no. 283-B, where the presence of a ceiling was an element taken into account in finding that the fine was not criminal in nature (§ 35).

[9] Moullet v. France (dec.), no. 27521/04, 13 September 2007.

[10] R.S. v. Germany (dec.), no. 19600/15, 28 March 2017.

[11] Engel and Others v. the Netherlands , 8 June 1976, Series A no. 22.