TrustHLT/LaCour huggingface dataset:
Darian Pavli (Judge): And secondly, if you could address the government's submission that in at least some similar cases, with respect to the actual fine applied in this case, the court has found that even higher amounts do not necessarily or automatically trigger the criminal limbo of Article VI.
Darian Pavli (Judge): And of course, the government, if they wish to comment, might do so.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Judge Schukking.
Jolien Schukking (Judge): I have a follow-up question to the question which were already posed by the colleagues Pastor Vilanova and Nußberger.
Jolien Schukking (Judge): It concerns Article 7.
Jolien Schukking (Judge): One of the complaints by the applicants was that the amount of the fine imposed had not been foreseeable, as no maximum amount was stipulated in domestic law, moderate and statute law, or case law.
Jolien Schukking (Judge): As you know, in many European countries, maximum penalties are set in law as a guarantee against arbitrary punishment.
Jolien Schukking (Judge): And making it foreseeable that punishment will never exceed that maximum.
Jolien Schukking (Judge): Iceland being a country not having set such limits in law, my question is, what are the procedural safeguards in place in Iceland against arbitrary punishment?
Ksenija Turković (Judge): I have a question on Article 6 first.
Ksenija Turković (Judge): On Article 6, I have a question whether under the domestic criminal procedure, there are any regulations that are defining trial in absentia.
Ksenija Turković (Judge): So how you have to act when there was a trial in absentia.
Ksenija Turković (Judge): Do you have any provisions regulating that?
Ksenija Turković (Judge): Then we have heard something of that, but I would like to be explained when and in which way the applicants became aware that contempt proceedings have been instituted against them.
Ksenija Turković (Judge): At which point and how they became aware of that.
Ksenija Turković (Judge): And then for the Article 7, how is fine defined in criminal code itself?
Ksenija Turković (Judge): So are there limits to the fines in criminal code, offenses that are defined in criminal code, and the fine is envisaged for the offense?
Ksenija Turković (Judge): Is that fine defined in criminal code?
Ksenija Turković (Judge): And the fine is envisaged for the offense.
Ksenija Turković (Judge): Is that fine limited?
Ksenija Turković (Judge): Is there the maximum?
Linos-Alexandre Sicilianos (JudgeP): I don't see other judges asking for the floor, so we shall now withdraw for 20 minutes, following which the parties will be able to submit brief observations in reply to each other's submissions and reply to questions from the judges.
AP1 (Applicant): I will now endeavor on behalf of the applicants to answer the questions posed by the members of the court, and if I have the time and the 10 minutes afforded to me, to reply to the government's submissions to the extent possible.
AP1 (Applicant): I will now answer the questions in no particular order.
AP1 (Applicant): There was a question from the court on when and how the applicants became aware of the case being initiated against them.
AP1 (Applicant): The applicants became aware of this after the first instance judgment was handed down on 12 December 2013.
AP1 (Applicant): During recess, I asked the applicants themselves on how they actually found out.
AP1 (Applicant): The applicant Johnson heard about it from the media that he had been convicted, and the applicant Hall heard about it from his ex-client.
AP1 (Applicant): There was a question on whether the fines were fixed in relation to gain, and whether there were any procedural safeguards for imposition of such fines in absentia judgments.
AP1 (Applicant): Your Excellencies, there are no in absentia provisions in Icelandic law that provide for such safeguards.
AP1 (Applicant): Further, there are no limits to the fines, no maximum amounts to the fines anywhere, and there are no hard-set procedural rules on how to handle such in absentia cases in the act on domestic procedure, on the act on criminal procedure.
AP1 (Applicant): So it could be said that the amount of the fines is entirely discretionary, and the judge that fined them in this case, in the first instance, he of course did not witness the alleged criminal conduct himself.
AP1 (Applicant): There was a question from the court on the amount of the fines, the real amount of the fines, and whether that mattered with regards to the third angle criteria.
AP1 (Applicant): That is, of course, correct, that the amount of the fines, the real amount, and the possible amount are both relevant.
AP1 (Applicant): And there is an overall assessment on whether this catches the criminal limb of Article VI.
AP1 (Applicant): As regards whether there are higher fines that have not been considered criminal, I would argue on behalf of the applicants that the converse is also true.
AP1 (Applicant): That, for example, in Weber versus Switzerland, the fine was of 300 Swiss francs, which is a much lower real amount.
AP1 (Applicant): In T versus Austria, the fine was of the amount of 30,000 Austrian shillings.
AP1 (Applicant): It's of course also a much lower real amount than in this case.
AP1 (Applicant): And in the case of Cipriano versus Cyprus, the fine was only 130 euros.
AP1 (Applicant): I would also point to one other fact, Your Excellencies.
AP1 (Applicant): Under Icelandic law, fines as low as 50,000 ISK, 1 20th of the amount here, have been considered criminal.
AP1 (Applicant): Under domestic law, as the potential amount of the fine was unlimited.
AP1 (Applicant): And the applicants referred to attachment 20B, the case of prosecution, versus Stefan Karl Christensen.
AP1 (Applicant): While I'm on that subject, the subject of that judgment, I would also like to rebut some of the arguments of the government in relation to this judgment.
AP1 (Applicant): In the case of Stefan Karl Christensen versus the prosecution, that attorney was fined a total of 50,000 ISK for non-attendance at a court hearing under the same provisions as the applicants, subparagraphs A and D.
AP1 (Applicant): He was fined for intentionally delaying a hearing with non-attendance, not once, but four times.
AP1 (Applicant): And the government has argued that these four non-attendances were by mistake of that attorney.
AP1 (Applicant): I don't know how that is possible to not attend by mistake four times.
AP1 (Applicant): But in any case, under subparagraph A, there is a requirement of intent.
AP1 (Applicant): It is therefore clear that that attorney was fined for an intentional breach, and not a mistake, as the government argues.
AP1 (Applicant): On the factual observations of the government, I would also like to point out two separate points.
AP1 (Applicant): The government observed that they were fined for damaging interests of other people than their ex-clients in the Supreme Court judgment.
AP1 (Applicant): That is, of course, not correct.
AP1 (Applicant): They were fined for damaging the interests of their clients, ex-clients.
AP1 (Applicant): The government also argued that they only notified the court of first instance of the resignation with letters or emails.
AP1 (Applicant): I don't think that is correct either.
AP1 (Applicant): You can see on attachment 5A, the brief of the applicants to the Supreme Court, that they met the first presiding judge in the case in chambers prior to resigning.
AP1 (Applicant): That's on page 5 of that document.
AP1 (Applicant): They met the judge in chambers, expressed their disappointment with how the trial was going, expressed that their clients were being subjected to fair trial violations.
AP1 (Applicant): And at the end of that meeting, they handed the letter of resignation to the first presiding judge.
AP1 (Applicant): And it was not their impression that the judge intended to fine them or was at all authentic.
AP1 (Applicant): The government has also argued that the applicants could have foreseen that they would be fined in criminal proceedings.
AP1 (Applicant): Your Excellencies, it is important to note here that the decision on whether to fine an attorney for non-attendance is entirely discretionary for the presiding judge.
AP1 (Applicant): The judge may decide to fine or not to fine.
AP1 (Applicant): There's also a third option available to the judge.
AP1 (Applicant): A judge may admonish an attorney for acting contemptuously if he considers the contempt to be minor.
AP1 (Applicant): So there's nothing in the case that indicates specifically that they could have expected to be fined.
AP1 (Applicant): The fundamental point here is that they were not notified of any charges.
AP1 (Applicant): They were not notified after the 11 April 2013 hearing in the first instance that a criminal case could be initiated against them.
AP1 (Applicant): That never happened.
AP1 (Applicant): The first they knew about the case was when the district court of Reykjavik fined them.
AP1 (Applicant): That was the first moment.
AP1 (Applicant): The government also argued that the Icelandic Supreme Court could have referred the case back to the district court of Reykjavik for retrial.
AP1 (Applicant): The applicants disagree with this.
AP1 (Applicant): Article 224 of the Act on Criminal Procedure states that it is only possible to fine defense counsel a procedural fine and a final judgment against their clients.
AP1 (Applicant): That judgment was handed down on 12 December 2013, when the first instance judgment was handed down.
AP1 (Applicant): So any retrial after that in the district court could not have led to the imposition of any fine against them.
AP1 (Applicant): So retrial would have been pointless procedurally.
AP1 (Applicant): And I think it is clear that both the majority of the Supreme Court and the minority of the Supreme Court agreed with this.
AP1 (Applicant): It is established case law in Iceland that when an Article 6 violation occurs in the first instance, the Supreme Court refers it back for retrial.
AP1 (Applicant): They did not in this case.
AP1 (Applicant): And the inference must be drawn that they agreed that it would not be procedurally impossible to retrial it.
AP1 (Applicant): And of course, the minority opinion specifically addressed this issue and said there was no procedural possibility for retrial for fines against attorneys.
AP1 (Applicant): There was a question on, there was the first question asked by the court.
AP1 (Applicant): There was a question on whether there were generally provisions in Icelandic law on maximum fine amounts and how long the prison sentence could be for offenses.
AP1 (Applicant): The provisions are generally like this.
AP1 (Applicant): Offenses, according to this chapter, can be subject to fines up to when there is a maximum amount or imprisonment of up to X years.
AP1 (Applicant): That is generally how it was done in Icelandic law.
AP1 (Applicant): But in the case of contempt of full court fines for attorneys, there is no maximum amount set out for the fines, which is, of course, a bit special under Icelandic law.
AP1 (Applicant): Your Excellencies, I have now addressed what I wish to address, both in the government's pleadings and the questions that are noted down from the court.
AP1 (Applicant): But if Your Excellencies want to ask any further questions, I would be happy to answer them.
AP1 (Applicant): Or if not, I would also thank you for your time and thank you for this opportunity.
GR1 (Government): Mr. President, members of the court, I will now, on behalf of the government, answer the
GR1 (Government): questions of the court.
GR1 (Government): Regarding the first question, it was a question about the fact that Article 223 of the CPA does not have any limits and whether it is problematic for the separation of powers.
GR1 (Government): The answer would be no.
GR1 (Government): The courts are completely independent according to Article 2 of the Constitution.
GR1 (Government): However, they must, of course, follow jurisprudence and their decisions must not be arbitrary.
GR1 (Government): This can be seen, for example, in the Supreme Court's judgment in the current case, where it, for example, lists up the details of the applicant's conduct and they measure it to the amount of the fines in accordance.
GR1 (Government): So that would not be problematic.
GR1 (Government): But this also applies to question 2.
GR1 (Government): There was a question about the foreseeability and in which relation the fines were fixed.
GR1 (Government): And there were some examples of criteria if it was fixed in relation to the gain and so on.
GR1 (Government): The fines were not in relation to potential gain of the applicants or the real gain.
GR1 (Government): They were rather fixed in relation to the complexity of the case, as was addressed earlier today.
GR1 (Government): And also fixed in relation to the damages to the case.
GR1 (Government): For example, of the delay to the case.
GR1 (Government): The case was delayed for seven months and there were many people participating.
GR1 (Government): There were four defendants and so on.
GR1 (Government): So it was quite obvious that the damages of these decisions of the applicants were quite much.
GR1 (Government): This can also be seen, for example, in another judgment that was mentioned here today.
GR1 (Government): The case of Stefan Karl Kristiansson, which is pending before the court, where the counsel in that case was also absent during the main hearing.
GR1 (Government): That was a minor case.
GR1 (Government): There was one person prosecuted in that case and it was quite a minor case.
GR1 (Government): And the Supreme Court actually lowered the fines there to the amount of 50,000 Icelandic kronas, which is not much.
GR1 (Government): The fine was also, in the current case, was also in balance with the overall litigation cost.
GR1 (Government): This is explained thoroughly in the government's written submissions.
GR1 (Government): And so that was the main way how the Supreme Court measured the fines.
GR1 (Government): Question three was addressed to the applicants and it has already been thoroughly answered in the written submissions of the government and earlier today, so I'm not going to address that.
GR1 (Government): As to question four, there was a question about safeguards against arbitrary fines.
GR1 (Government): Well, all fines, they can be appealed in one way or another.
GR1 (Government): They can always be reviewed.
GR1 (Government): So it can be seen that court fines in Iceland, they have not been excessive.
GR1 (Government): And in relation to the effect to the case at hand, just as was done in the applicant's case, where the fines were in accordance with the gravity to the case, as mentioned earlier.
GR1 (Government): One can also mention that there is a special, and that actually also applies to the fifth question.
GR1 (Government): There was a question about whether there are any limits for fines in criminal law in general.
GR1 (Government): And the government points to Article 51 of the General Penal Code, where there is a guidance to the amount of fines, for example.
GR1 (Government): There is an income base and the property of the accused and other aspects that affect his cost of living expense.
GR1 (Government): So this can be seen that there is a general provision in the General Penal Code for limits in criminal law.
GR1 (Government): The fifth question was also about whether there are any provisions regulating to trial in absentia.
GR1 (Government): There are certain provisions regarding, for example, bankruptcy and some other cases where the accused has admitted in some less significant cases.
GR1 (Government): So there are special procedures regarding such cases, where there is often trial in absentia.
GR1 (Government): But otherwise, all cases can be appealed to a higher court and get an extra review.
GR1 (Government): So that would be the main safeguards.
GR1 (Government): So there was a question about when the applicants knew that the fines would be imposed.
GR1 (Government): The Applicants' Council has answered that, but the government must also mention again that the applicants are very familiar with the provisions in Article 222 and 223 of the CPA.
GR1 (Government): So they must have been aware that this was very probable.
GR1 (Government): And as it always is, there has never been any case where there's, we don't know of any case where special proceedings have been initiated according to Article 222, paragraph 1 and fine of the CPA.
GR1 (Government): So all cases have been according to its judge's decision.
GR1 (Government): So it has been the judge on its own motion when it has decided on court fines.
GR1 (Government): So they must have been aware that this was a great possibility.
GR1 (Government): I think I have covered most of the questions, but at last, we'd like to address one thing that was in the speech of the Council for the Applicants, where he mentioned that the applicants, that fines in accordance with the Civil Procedure Act would also be regarded as criminal.
GR1 (Government): The applicants, but at the same time, the applicants claim that this case belongs to criminal law since it was appealed to the Supreme Court in accordance with the CPA, and their counterpart was the prosecutor.
GR1 (Government): But if a procedural fines, if they were imposed in a civil case, the case would be appealed according to proceedings in the Civil Procedure Act, as has been mentioned earlier today.
GR1 (Government): A council would therefore not enjoy the same procedural rights as an accused person according to the Criminal Procedure Act, if it would go to a higher court.
GR1 (Government): It would be very difficult to maintain that the council's offence that resulted in a fine could therefore be classified as criminal under Icelandic law.
GR1 (Government): And the counterpart at a higher level would be the same party as it was in the civil case, on a lower level, just some person or an entity, but not the prosecutor.
GR1 (Government): So it doesn't, it seems to indicate that procedural fines according to the civil procedure law are in fact not criminal, and the same must apply to procedural fines according to the CPA.
GR1 (Government): Mr President, members of the court, to conclude, the government would like to emphasise that the main issue of this case concerns the protocol in court proceedings between councils and the courts.
GR1 (Government): The government quotes the court in the case of Petrinja v. Croatia, where it states that
GR1 (Government): it is essential for the proper administration of justice that dignity, order and decorum be observed in the courtroom as the hallmarks of judicial proceedings.
GR1 (Government): The government is of the view that a flagrant disregard by anyone participating in court proceedings of elementary standards of proper conduct neither can nor should be tolerated.
Linos-Alexandre Sicilianos (JudgeP): I now invite the judges who have put questions to ask for further clarification if they so wish, yes, Judge Turković, please.
Ksenija Turković (Judge): You have said that you have, in rare cases, example, you have given bankruptcy cases, these special provisions in absentia.
Ksenija Turković (Judge): So what these special provisions in absentia, what special guarantee they entail?
Linos-Alexandre Sicilianos (JudgeP): This is a question for the government.
Ksenija Turković (Judge): This is a discretion of the government because the government said that there are sometimes special provisions for the trials in absentia.
Ksenija Turković (Judge): So what that could be then?
Linos-Alexandre Sicilianos (JudgeP): If the applicants would comment, it is possible.
Linos-Alexandre Sicilianos (JudgeP): First the government, and then if you so wish, we'll give you the floor.
GR1 (Government): Mr. President, members of the court, if it's possible, the government would like to answer
GR1 (Government): this thoroughly in written observation in a few days, as allowed.
Linos-Alexandre Sicilianos (JudgeP): The applicant may wish to comment at this stage.
AP1 (Applicant): Yes. Thank you, Mr. President.
AP1 (Applicant): Just to address this issue, there are no rules governing in absentia criminal cases for procedural fines against attorneys.
AP1 (Applicant): It's absolutely clear under Icelandic law.
AP1 (Applicant): Referring to in absentia proceedings in bankruptcy law under Icelandic law or similar provisions, those provisions do not apply in cases like the ones at hand.
AP1 (Applicant): It's entirely irrelevant.
AP1 (Applicant): Your Excellencies, thank you.
Guido Raimondi (JudgeP): Je déclare ouverte l'audience publique sous la réservabilité et le front de l'affaire Moreira Ferreira contre Portugal, numéro 2.
Guido Raimondi (JudgeP): L'affaire a été introduite devant la Cour le 30 mars 2012 par une ressortissante portugaise, Mme Francelina Moreira Ferreira, en vertu de l'article 34 de la Convention.
Guido Raimondi (JudgeP): La requête a été communiquée au gouvernement le 1er avril 2014.
Guido Raimondi (JudgeP): Le 12 juin 2016, la Chambre a décidé de se dessaisir au profit de la Grande Chambre.
Guido Raimondi (JudgeP): Le gouvernement défendeur est représenté par son agente, Mme Maria de Fátima da Graça Carvalho, assistée par M. João Conde Correia, conseil,
Guido Raimondi (JudgeP): La requérante est représentée par M. Jorge Alves,
Guido Raimondi (JudgeP): avocat assisté par Mme Francisca Xavier, conseil.
Guido Raimondi (JudgeP): Je salue également les visiteurs, et en particulier une délégation des juges de la Cour de cassation de France, une délégation des magistrats ukrainiens, une délégation des juges du Tribunal supérieur du Travail du Land Baden-Württemberg, ainsi qu'une délégation d'avocats du Barreau de Coimbra, une délégation d'avocats de l'Union des Caméras Pénales Italiennes, et une délégation de l'Association des huissiers de Lisbonne.
Guido Raimondi (JudgeP): Ayant consulté l'agente du gouvernement et le représentant de la requérante, je fixer ainsi l'ordre de parole.
Guido Raimondi (JudgeP): Nous entendrons successivement Mme Maria de Fátima da Graça Carvalho pour le gouvernement, et puis M. Jorge Alves pour la récréante.
Guido Raimondi (JudgeP): Je dois expliquer qu'en sus de l'interprétation dans les deux langues officielles de la Cour, l'anglais et le français, l'interprétation en russe a été autorisée au profit des magistrats ukrainiens qui assistent à cette audience.
Guido Raimondi (JudgeP): La parole est à Mme Maria de Fátima da Graça Carvalho.
Guido Raimondi (JudgeP): Madame, vous avez la parole.
GR1 (Government): Monsieur le Président, Mesdames et Messieurs les Juges, permettez-moi tout d'abord de vous présenter mes compliments ainsi que M. Frédéric Frédéroche,
GR1 (Government): l'avocat et représentant de la récréante.
GR1 (Government): La question soulevée dans cette affaire relève d'un débat très actuel autour du système conventionnel et de la compétence de ces organes.
GR1 (Government): Les frontières entre ce qui reste un sujet concernant l'exécution d'un arrêt, la compétence du Comité des ministres au terme de l'article 46 et ce qui peut constituer un nouveau tema decidendo attranché par la Cour touchant une nouvelle violation de la Convention.
GR1 (Government): La Cour suprême du Portugal a rejeté l'armement d'en révision d'un jugement interne suite à l'arrêt de la Cour qui a déclaré la violation de l'article 6 au motif que la récréante, dont une responsabilité diminuée pourrait être en cause, n'a pas été entendue dans une audience devant la Cour d'appel.
GR1 (Government): En reprenant la trace des observations que nous avons présentées, mais sans les répéter, nous aborderons les questions posées par l'article 46, la question de l'applicabilité de l'article 6 à la procédure d'autorisation de révision et les exigences d'équité.
GR1 (Government): Rappelons d'abord que la Cour a dit à plusieurs reprises que la Convention ne lui donne pas compétence pour exiger d'un État la réouverture d'une procédure ou l'annulation d'une condamnation.