TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Third, as is further described in the written submissions of the applicants, the appeal case before the Supreme Court of Iceland was litigated from start to finish as a criminal case under the provisions of the Act on Criminal Procedure.
AP1 (Applicant): Just to name one example, the state prosecutor was the counterparty of the applicants before the Supreme Court.
AP1 (Applicant): The state prosecutor does not handle civil cases ever.
AP1 (Applicant): The government's main argument under this heading is that similar provisions on procedural fines for contempt of court are also to be found in the domestic Act on civil procedure.
AP1 (Applicant): Mr. President, fines handed down according
AP1 (Applicant): to the Act on Civil Procedure are also considered actual criminal punishment under Icelandic law, according to the textbook submitted to the court at attachment 25 to the applicant submissions.
AP1 (Applicant): And the author of that textbook is the ex-president of the Supreme Court of Iceland.
AP1 (Applicant): This argument of the government is therefore entirely without merit in the view of the applicants.
AP1 (Applicant): The applicants submit that this alone, that the offense is clearly classified as criminal under domestic law, should be sufficient for the criminal limb of Article 6 of the Convention to apply in this case.
AP1 (Applicant): Nevertheless, the government's claim is that the application is not sufficient for the criminal limb of Article 6 of the Convention to apply in this case.
AP1 (Applicant): Nevertheless, the applicants will address the two other Engel criteria shortly.
AP1 (Applicant): On the second criteria, the government argues in its written submissions that contempt of court fines can only be directed at attorneys under Icelandic law.
AP1 (Applicant): The applicants were fined for breaching two separate sections of Article 2.2.3 of the Act
AP1 (Applicant): on Criminal Procedure, subparagraphs A on the one hand and D on the other.
AP1 (Applicant): It is true that under subparagraph A, fines can be directed at members of the legal profession.
AP1 (Applicant): But there is also a requirement of intent to delay a court hearing that indicates that the offense is nevertheless of a criminal nature.
AP1 (Applicant): However, under subparagraph D, fines can be directed at other people than just the legal profession.
AP1 (Applicant): It catches witnesses and the accused, and both are members potentially of the general public.
AP1 (Applicant): The applicants also refer to the fact that there is another domestic legal statute in force that governs disciplinary measures solely against attorneys that do not reach the status of criminal punishment.
AP1 (Applicant): That is the Domestic Act on Attorneys, which has been submitted to the court as attachment 26.
AP1 (Applicant): On the third angle criteria, the applicants would just like to make two quick points.
AP1 (Applicant): First of all, that the fines for contempt of court are paid to the Icelandic State Treasury under Article 222 of the Act on Criminal Procedure, just like all other criminal fines.
AP1 (Applicant): They are therefore not intended to cover any financial damage incurred.
AP1 (Applicant): The fines are punitive and deterrent in nature, as opposed to being compensation for damage incurred.
AP1 (Applicant): But the most fundamental point here, Your Excellencies, is that the severity of the fines was unlimited by any domestic legal provision.
AP1 (Applicant): The fines could have been, in theory, of any amount at all.
AP1 (Applicant): 1 million ISK, 10 million ISK, 100 million ISK.
AP1 (Applicant): That is the fundamental point here on the severity of the fines.
AP1 (Applicant): The severity was entirely unrestricted.
AP1 (Applicant): As regards the other arguments provided by the government in its written submissions on the angle criteria, the applicants would simply refer to this court's judgment in the case of Lauko versus Slovakia at paragraph 58, wherein it was stated that whether the offense is punishable by imprisonment or whether it is entered into a criminal record is not decisive.
AP1 (Applicant): In the interest of time, the applicants object to the other arguments of the government on the angle criteria as incorrect and unproven and reserve the right to answer them further in rebuttal.
AP1 (Applicant): I will now turn to the issue of presumption of innocence.
AP1 (Applicant): Your Excellencies, the applicants were convicted entirely without trial in the first instance.
AP1 (Applicant): They had to litigate on appeal in the only proceedings available to them from a position of having already been convicted by a court of law.
AP1 (Applicant): They were never given formal suspect status at any stage of the domestic proceedings.
AP1 (Applicant): And this is unlike the defendants in the cases of Satovich versus Italy and the case of Petrina versus Croatia, which are both judgments which deal with in absentia convictions.
AP1 (Applicant): This meant that the applicants did not enjoy any of the rights usually afforded to an accused person.
AP1 (Applicant): Before being convicted, they, for example, did not have the right to counsel before being convicted that could advise them on how to respond to charges.
AP1 (Applicant): They did not either enjoy the right to not incriminate themselves until after they had already been found guilty by a court of law.
AP1 (Applicant): The first issue here is, therefore, simply whether this fact alone that the applicants were never given formal suspect status at the stage of the domestic proceedings is in itself sufficient to find that a violation of the right to presumption of innocence has occurred.
AP1 (Applicant): The second fundamental issue, which is, of course, connected to the first, is whether a notification of criminal charges on the one hand and a conviction judgment that can be appealed on the other hand can be considered similar documents from the perspective of the citizen.
AP1 (Applicant): The government argues that it does not matter whether a case is initiated with a notification of charges or a conviction judgment that can be appealed.
AP1 (Applicant): The applicants disagree with this argument.
AP1 (Applicant): They submit that there is a clear difference between a notification of charges and the conviction judgment.
AP1 (Applicant): One document presents accusations that have not been established under fact or law, whereas the other presents accusations that a court of law has already confirmed on both facts and law.
AP1 (Applicant): In other words, in the only trial available to the applicants, they had to contend, for example, with a state prosecutor who neither had to find a way to prove the facts of the case, nor to take those facts and apply them to the correct legal provisions.
AP1 (Applicant): The district court of Reykjavik had done all that work for the prosecutor when it convicted the applicants.
AP1 (Applicant): This is, of course, quite different to a regular criminal case in the first instance.
AP1 (Applicant): The third fundamental question in the view of the applicants is whether it is in itself consistent with the right to presumption of innocence to make a citizen have to take positive action to initiate appeal proceedings themselves, to disprove his guilt.
AP1 (Applicant): The applicants would also like to underline, Your Excellencies, that the appeal proceedings were inevitably colored by the fact that the applicants had already been convicted, and therefore that the appeal proceedings did not remedy the first instance proceedings.
AP1 (Applicant): The conviction damns the applicants' credibility.
AP1 (Applicant): I will now move on to the right to oral testimonies before the Icelandic Supreme Court.
AP1 (Applicant): The government's arguments on the right to oral testimonies being complied with under Article 6 are threefold.
AP1 (Applicant): The Icelandic government argues that the right was practical and effective.
AP1 (Applicant): The government also argues that there was no factual dispute in the case, and therefore that testimonies were not necessary.
AP1 (Applicant): And finally, it argues that as the applicants were convicted without oral testimonies in the first instance, that it was unnecessary to offer the applicants oral testimonies on appeal.
AP1 (Applicant): These are the three main arguments.
AP1 (Applicant): I will now cover each argument in turn.
AP1 (Applicant): Article 205 of the Act on Criminal Procedure states the following.
AP1 (Applicant): The Supreme Court can decide that oral presentation of evidence should be submitted as deemed necessary by the court.
AP1 (Applicant): The provision does not say that the parties may request oral testimonies if they deem it necessary, or that the Supreme Court may permit requests from parties for oral testimonies, for example.
AP1 (Applicant): The wording of the provision does not refer to this as a right of the parties, but as a decision for the court to make in any given criminal case if the court itself deems it necessary.
AP1 (Applicant): Furthermore, the government has not provided to this court a single piece of evidence to show that a case party to a criminal case has ever made a request to the Supreme Court for oral testimonies, or of the Supreme Court ever granting such a request from a case party.
AP1 (Applicant): The question for the court on the effectiveness of these rights has therefore become very simple.
AP1 (Applicant): Can the applicants be expected to avail themselves of rights that are not apparent from the wording of the article, and when there is no evidence of any criminal case defendant in Icelandic legal history, either even requesting these rights or being granted those rights?
AP1 (Applicant): And the applicants submit that the answer is a clear no.
AP1 (Applicant): The rights are not practical and effective for convention purposes.
AP1 (Applicant): Now, before this court, there are two reports from expert committees in Iceland on the direct provision of oral evidence, submitted to this court as attachments 13 and 14.
AP1 (Applicant): Both expert reports confirm that there were grave concerns within Iceland, that the complete lack of oral testimonies on appeal before the Supreme Court violated Article VI of the Convention.
AP1 (Applicant): The ex-president of the Supreme Court is, for example, quoted in one of the reports as saying that if the right was effective, a new courthouse would have to be constructed, and a lot more judges would have to be appointed because of increased workload.
AP1 (Applicant): This clearly shows that according to court practice within Iceland, the rights were not effective either.
AP1 (Applicant): Furthermore, attachments 27 and 28 to the applicant's submissions to the court show that the conclusion of the two expert reports do indeed reflect the views of the government on the issue, contrary to what it now argues in its written submissions to this court.
AP1 (Applicant): The documents show that a new court of appeals was established in Iceland, specifically to provide for the possibility of oral testimonies on appeal for the first time.
AP1 (Applicant): In 2016, the Minister of the Interior in Iceland proposed a legislative bill to the Icelandic Congress.
AP1 (Applicant): And you can see the explanatory notes to that bill on attachment 27.
AP1 (Applicant): The explanatory notes refer to the two expert reports, on it being necessary to establish a new court of appeals to provide for oral testimonies for the first time.
AP1 (Applicant): The applicants have also submitted the speech of the Minister of Interior in 2016 to the Parliament on presenting the bill.
AP1 (Applicant): And you can see that document on attachment 28.
AP1 (Applicant): That document clearly reflects that it was the view of the government that oral testimonies were unavailable before the Supreme Court, and it being necessary to establish a whole new court for that reason.
AP1 (Applicant): Further, the documents show that there was a broad consensus within the Icelandic legal community on it being necessary to establish a new appeal court to make oral testimonies on appeal available to criminal case defendants for the first time.
AP1 (Applicant): The views were backed by, for example, the Icelandic Bar Association, the Icelandic Lawyers Association, the Icelandic Association of Judges, and the Icelandic Association of Prosecutors.
AP1 (Applicant): And notably, there was not a single expert that provided the contrary view in those two expert reports and argued that testimonies could be taken before the Supreme Court.
AP1 (Applicant): Your Excellencies, it should therefore be concluded that there is no doubt that the rights to oral testimonies before the Supreme Court were not practical and effective.
AP1 (Applicant): Now, the government argues in its written submissions that as there was no disagreement on facts, it was not necessary to take oral testimonies before the Supreme Court.
AP1 (Applicant): This is, in the view of the applicants, incorrect, as is explained at length in the written brief of the applicants to the Grand Chamber.
AP1 (Applicant): The applicants, for example, never accepted that they intended to delay the trial in the first instance.
AP1 (Applicant): They never accepted that they had caused offense to the presiding judge in the case or that they had harmed their clients by resigning from the case.
AP1 (Applicant): But there was also a disagreement on various legal terms that had subjective and factual elements to them.
AP1 (Applicant): For example, like intentional delay of a court hearing.
AP1 (Applicant): Whether there is intent in any given case is, of course, subjective and factual.
AP1 (Applicant): Or whether the applicants had violated the dignity of the court.
AP1 (Applicant): Whether a violation of dignity occurs is, of course, both subjective and factual.
AP1 (Applicant): But the fundamental point here, Your Excellencies, is that even if there had been no disagreement on facts, a violation of Article VI has still occurred, as it is a fundamental right of a criminal case defendant to appear in person before the court determining his guilt or innocence and decides on the appropriate sentencing.
AP1 (Applicant): And this is quite irrespective of whether there was a factual dispute or not.
AP1 (Applicant): In this case, there were many fundamental reasons for why it was necessary to offer the applicants the chance to testify in person before the Supreme Court.
AP1 (Applicant): In the interest of time, I will name just three in particular.
AP1 (Applicant): First, that the domestic law did not impose a maximum penalty amount.
AP1 (Applicant): Sentencing, therefore, depended particularly heavily on a court's subjective evaluation of the applicant's credibility and their personality.
AP1 (Applicant): Second, the case was extremely damaging to their professional reputations as attorneys.
AP1 (Applicant): Third, the first instance court did not take oral testimonies in the case.
AP1 (Applicant): The applicants have a right to appear before the domestic court handling their case in person at least once in the domestic proceedings.
AP1 (Applicant): Now, the government has argued that the right to testify is only applicable before the Supreme Court when first-instance acquittals are overturned on appeal and testimonies were taken in the first instance.
AP1 (Applicant): So what the government is really arguing here is that it should benefit from having unlawfully convicted the applicants without trial in the first instance and without testimonies.
AP1 (Applicant): That the fact that they were convicted without testimonies in the first instance means that no testimonies were necessary on appeal either.
AP1 (Applicant): In other words, Your Excellency, the Icelandic state is relying on its own breach of Article 6 in the first instance, and it should not be allowed to do that.
AP1 (Applicant): To put it another way, the Supreme Court should have offered the applicants the right to oral testimonies precisely because the district court deprived them of those rights in the first instance.
AP1 (Applicant): Further, the principle on direct provision of oral testimonies from the defendants being required, even when a conviction is confirmed, can be seen in the court's judgment in Ekpattani versus Sweden.
AP1 (Applicant): In that case, the defendant was convicted both in the first and in the second instance, just like the applicants in this case.
AP1 (Applicant): But he was only allowed to appear before the court in person in the first instance, but not on appeal.
AP1 (Applicant): The Swedish appeal court had full jurisdiction to re-examine whether he was guilty or innocent and to decide on the appropriate sentencing, just like the Icelandic Supreme Court.
AP1 (Applicant): This court found that Mr. Ekpattani
AP1 (Applicant): had the right to appear in person before the Swedish court at appeal, despite being convicted in the first instance.
AP1 (Applicant): So if the twice convicted Mr. Ekpattani
AP1 (Applicant): had the right to appear twice before domestic courts, the applicants submit that they should be entitled to such rights at least once.
AP1 (Applicant): Not least because the charges in this case are much more serious than in the case of Mr. Ekpattani.
AP1 (Applicant): And you can also see this general rule in the recent case of Sigurdsson versus Iceland at paragraph 33.
AP1 (Applicant): Finally, Your Excellencies, this argument of the government, if accepted, would set a very dangerous precedent for the protection of human rights within Europe.
AP1 (Applicant): Contracting states would then have an incentive for depriving accused persons of oral testimonies in the first instance without trial.
AP1 (Applicant): To justify depriving them again of oral testimonies on appeal.
AP1 (Applicant): That simply cannot and should not be accepted as a matter of precedent.
AP1 (Applicant): the conclusion should be that the government has failed to meet its burden of showing that the rights to oral testimonies are practical and effective.
AP1 (Applicant): And that a breach of Article 6 of the convention has occurred.
AP1 (Applicant): Thank you for your time, Mr. President,
AP1 (Applicant): and distinguished members of the court.
Linos-Alexandre Sicilianos (JudgeP): I call Mrs. Fanney Rós Þorsteinsdóttir.
GR1 (Government): the case before the court today concerns alleged violations of Article 6 and 7 of the Convention.
GR1 (Government): It further touches up on the application of Article 6 under its criminal head and where the rights of the Convention can be applied to situations where a defense counsel is fined for contempt of court in the context of processing a case before domestic courts.
GR1 (Government): It touches up on the issue where there has been a gradual broadening of the criminal head of Article 6 to cases not strictly belonging to the traditional categories of criminal law.
GR1 (Government): The government submits that the present case is a typical case that should not fall there under.
GR1 (Government): In any event, the government disputes that the absence of a hearing before the district court of Reykjavik and the fact that the applicants gave no statements before the Supreme Court or witnesses were heard gave rise to any breach of Article 6 or 7.
GR1 (Government): The government is of the view that no such violations took place.
GR1 (Government): The applicants are two respected lawyers who claim that their rights under the Convention were violated when they were fined in accordance with the Criminal Procedure Act, which will be referred to as the CPA.
GR1 (Government): The government is aware that it's departing from its previous position before the chamber by contesting the applicability of Article 6.
GR1 (Government): However, when looking at the facts, it's impossible to maintain that the case is a criminal case for the purpose of applying Article 6.
GR1 (Government): This is simply a case where two defense counsels were fined due to their behavior in court.
GR1 (Government): This was a disciplinary measure.
GR1 (Government): It becomes obvious that the present case is not a criminal case if the court's criteria, the so-called Engel criteria, is followed.
GR1 (Government): The first step is to view the legal classification of the offense under domestic law.
GR1 (Government): The applicants were fined under Chapter 35 of the CPA for offending the court and causing unnecessary delay of the case by not attending the main trial and thereby jeopardizing their clients' and other defendants' interests.
GR1 (Government): The CPA is a procedural act.
GR1 (Government): It is not part of criminal law.
GR1 (Government): It does not describe offenses such as are described in the general penal code or special criminal law.
GR1 (Government): Moreover, Chapter 35 of the act is set out in Part 6, along with provisions on litigation cost.
GR1 (Government): The provisions are more or less the same as are in Chapter 22 of the Civil Procedure Act.
GR1 (Government): Both have the same heading, procedural fines.
GR1 (Government): Article 222 of the CPA is almost identical to Article 134 of the Civil Procedure Act.
GR1 (Government): And Article 223 of the former act describes more or less the same offenses as Article 135 of the Civil Procedure Act, as can be seen in Document 24.
GR1 (Government): The applicants were fined for causing unnecessary delay of the case and offending the court.
GR1 (Government): Article 223, Paragraphs A and D of the CPA, offenses that occurred in a criminal trial where the applicant's clients and two others were being prosecuted.
GR1 (Government): The same could happen in a civil proceeding where a counsel could be fined for offending the court and causing unnecessary delay of a case in accordance with Article 135, Paragraphs C and F of the Civil Procedure Act.
GR1 (Government): It does not seem logical that the former offense, where a counsel is fined in accordance with the CPA, should be classified as criminal simply because it took place during a criminal trial and the provision defining the offense is found in the CPA, while the latter, where a counsel is fined according to the Civil Procedure Act, would not be classified as criminal if it took place during a proceeding in a civil case and the provision describing that same offense is part of the Civil Procedure Act.
GR1 (Government): The two provisions are almost identical.
GR1 (Government): Their aim is to protect proceedings in court.
GR1 (Government): A court can fine counsels, both in criminal and civil cases, in accordance with these procedural rules.
GR1 (Government): It is for the court sitting in a particular case to examine of its own motion whether there has been an offense under these provisions.
GR1 (Government): Therefore, it cannot be concluded that Article 223 of the CPA belongs to Icelandic criminal law.
GR1 (Government): As to the nature of the offense, the government points to the fact that according to Article 223 of the CPA, only the prosecutor, a defense counsel, or a legal advisor may be fined.
GR1 (Government): The article does not define offenses that can be committed by the population at large.
GR1 (Government): It defines offenses that a very limited group of people can commit in very specific surroundings, only by those participating in court proceedings, therefore making it an internal court matter and no criminal offense.
GR1 (Government): The court in its case law seems to distinguish between offenses applicable to persons under a specific regime or a group with a special status and those with the potential to affect the whole population.
GR1 (Government): The court has in several cases listed lawyers as a typical group with such a status that their offense during court proceedings would fall outside of the scope of Article 6.
GR1 (Government): The court has even acknowledged that rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of legal systems of the contracting states.
GR1 (Government): And finally, as to the nature and degree of the penalty severity, the government is aware that the fines in the present case were higher than in previous Icelandic judgments on procedural fines.