5.  The first applicant was born in 1950 and lives in Reykjavík. The second applicant was born in 1948 and lives in Reykjavík. Both applicants are attorneys practising in Reykjavík.
6.  On 16 February 2012 Y and Z were indicted for participating in fraud and market manipulation along with two other individuals. On 7 March 2012, in accordance with Article 31 of the Criminal Procedures Act No. 88/2008 (hereinafter “the CPA”), the first applicant was appointed as Y’s defence counsel and the second applicant was appointed as Z’s defence counsel.
7.  On 7 March 2012, the indictment of the prosecution against, inter alios, Y and Z was registered before the District Court of Reykjavík. At a preliminary hearing they pleaded not guilty to the charges laid against them. From March to December 2012 the prosecutor and the applicants, along with the other defence counsel in the proceedings, repeatedly submitted arguments in further preliminary hearings about various issues, such as the evidence submitted by the prosecution, the deadline for the defence to file pleadings and the defence’s request to dismiss the case. The Supreme Court issued three rulings on procedural matters in the case.
8.  On 19 December 2012, after consulting the prosecution, the applicants and the other defence counsel, the District Court judge decided that the trial would take place from 11 to 23 April 2013. The same day, the second applicant replied to the judge’s email stating that, although it was reasonable to decide dates for the trial, he wanted to remind the judge that the case was not ready for trial at that time because the prosecution had not submitted the requested evidence and issued a witness list. Shortly afterwards the judge replied with “Merry Christmas!”.
9.  On 24 January and 7 March 2013 the prosecution submitted further evidence in the case. During the second of these preliminary hearings, the applicants and the other defence counsel requested more time to study the evidence and the postponement of the trial, inter alia, because the submission of evidence had not been concluded. By a decision of the same day the District Court rejected the request.
10.  In a preliminary hearing on 21 March 2013, the prosecution and one defence counsel submitted further evidence. The applicants and the other defence counsel requested that the prosecution provide them with certain documentary evidence. In a preliminary hearing on 25 March 2013 the applicants and the other defence counsel requested again that the trial be postponed for 6-8 weeks to allow them to study new evidence presented by the prosecution. By decisions of 26 March 2013, the District Court rejected both requests. By a decision of 4 April 2013, the Supreme Court dismissed the appeal.
11.  On 8 April 2013 each applicant wrote a letter to the District Court judge in the case, arguing that they could not, for reasons of conscience, continue to perform their duties as defence counsel for their clients. The applicants stated, inter alia, that they had not been informed about the deadline to submit their pleadings to the Supreme Court before its ruling of 4 April 2013, the prosecution had neglected to send them a copy of its pleadings, the defence had not had adequate access to important documents, the prosecution had tapped telephone conversations between them and their clients and the whole procedure had in general violated their applicants’ rights under the Constitution, the CPA and the Convention. Lastly, the applicants stated that their clients’ rights had been so grossly violated that they were forced to resign from further participation in the case. They noted that they had discussed this with their clients and made clear that the latter approved of their decision. The applicants requested that their appointment as defence counsel for their clients be revoked in accordance with Section 21 (6) of the Attorneys’ Act No. 77/1998.
12.  On the same day, the District Court judge replied to the applicants’ letters and rejected their requests. The judge referred to the CPA and the Attorneys’ Act. He reiterated that the trial would start on 11 April 2013 as previously decided. The applicants replied to the letter immediately, referred to their previous arguments and stated that they would not attend the trial on 11 April 2013.
13.  On 11 April 2013, Y and Z attended the trial accompanied by new defence counsel. The applicants did not attend the hearing and were not summoned to appear by the court. The presiding judge recorded the aforementioned communications between him and the applicants and declared that it was unavoidable to relieve the applicants of their duties as defence counsel. New defence counsel were appointed for Y and Z and the trial was postponed for an unspecified period. The prosecution requested that the applicants be fined for contempt of court under Section 223 of the CPA (see paragraph 32 below).
14.  Before this Court the applicants submitted that, according to news reports, the presiding judge had explicitly rejected the prosecution’s request, stating that the conditions to impose fines were not fulfilled at that time. However, the Government stated that the court records (which were not submitted to the Court) did not reflect that the presiding judge had taken a position on this point. In any event, the Government argued that the statement had not been a formal one, it had not been noted in the court records and there was great uncertainty as to whether it had been made and, if so, what had actually been said.
15.  A new trial was held before the District Court from 4 to 14 November 2013. In the meantime, the presiding judge had withdrawn from the case and a new judge had been appointed.
16.  By a judgment of 12 December 2013, Y and Z, along with the other two accused, were convicted. Furthermore, the applicants were each fined 1,000,000 Icelandic krónur (ISK; approximately 6,200 euros (EUR) at the material time) under Section 223(1) (a) and (d) of the CPA for offending the court and causing unnecessary delay in the case by not attending the trial on 11 April 2013 and thereby damaging their clients’ and the other defendants’ interests. The judgment was delivered in the absence of the applicants.
17.  On 13 December 2013 the applicants appealed to the Supreme Court against the District Court judgment as regards the imposition of fines, by way of an appeal lodged by the prosecutor at their request. Before the Supreme Court, the applicants primarily requested that the District Court judgment be annulled as to the imposition of their fines and, as a subsidiary request, that the fines be reduced, were the Supreme Court to reject their request for annulment.
18.  In their submissions to the Supreme Court the applicants claimed firstly that they had been penalised without having been given the opportunity to defend themselves against the prosecution’s claims or being made aware of the court’s intention to impose fines on them. This had been a violation of their right to a fair trial under Article 6 §§ 1 to 3 of the Convention and Article 70 of the Constitution. Secondly, the applicants maintained that they had had valid reasons to resign from the case and that the legal conditions to fine them had not been fulfilled.
19.  As regards their first claim, the applicants argued that they had at no point been informed that the court was considering imposing fines on them and they had not been invited to defend themselves before the District Court, which was a fundamental part of the right to a fair trial.
20.  As regards the second complaint, the applicants argued, inter alia, that imposing fines on them as defence counsel had not been in accordance with the CPA as they had not been defence counsel at the time the District Court judgment was delivered. They argued that, according to Section 224 of the CPA, they should have been fined immediately as “others”. Furthermore, the applicants maintained that their conduct in question had not occurred during the proceedings as the CPA required. In any event, their behaviour could not be considered as offending the court since they had not attended any hearings with the judges who had imposed the fines and decided on the merits of the case. The applicants further stated that their actions had been in their clients’ interests, and their clients had approved of their decisions.
21.  The applicants submitted documentary evidence along with their submissions to the Supreme Court. They did not ask to examine witnesses or to give statements themselves before the court.
22.  The Supreme Court held an oral hearing in the case where the applicants were represented by legal counsel. No witnesses were heard and the applicants did not give statements before the court.
23.  The applicants were represented by two separate defence counsel before the Supreme Court. However, the applicants claimed before this Court that, due to the limited time given to present the case before the Supreme Court, each defence counsel put forth arguments on behalf of both applicants.
24.  According to the second applicant’s summary of the oral pleadings before the Supreme Court the applicants argued, inter alia, that a decision to impose court fines was an ex proprio motu decision of the court, without the parties’ involvement, and could therefore not be quashed and referred back to the first instance court. Furthermore, the applicants argued that referring the case back to the District Court for a new trial due to a violation of the CPA and Article 6 of the Convention could never be legitimate at this point as the time-limits for imposing fines on them had expired. According to Section 223 and 224 of the CPA the applicants could only be fined as “defence counsel” in a substantive judgment in the criminal case against their clients or as “others”, during the main trial in the criminal case against their clients. Additionally, the applicants argued that the amount of the fine was tenfold compared to fines imposed in previous cases and that no maximum amount for fines was stipulated in the CPA. Furthermore, the applicants referred to the principle of legality in criminal cases (Article 69 of the Constitution) and the principle of lex certa.
25.  By a judgment of 28 May 2014, a majority of the Supreme Court (three out of five judges) confirmed the District Court judgment as regards the fines imposed on the applicants.
26.  In its judgment the Supreme Court described the facts in detail. It referred to the obligation incumbent on attorneys under Article 20 of the Attorneys’ Act to accept the appointment or nomination as defence counsel in criminal proceedings if they fulfilled statutory requirements. Furthermore, the Supreme Court held that the applicants could not resign as defence counsel in a criminal case with reference to Section 21 (6) of the Attorneys’ Act as it only applied to civil cases. Their decision not to attend the trial in spite of the District Court rejecting their request to relieve them of their duties as defence counsel was not in accordance with the law or in the interest of their clients or the other defendants. Their statements about resigning from their positions as defence counsel had furthermore been a gross violation of their obligations as defence counsel under Section 34 (1) and 35 (1) of the CPA. The applicants had completely disregarded the legitimate decisions of the District Court judge, who had had no other option than to revoke their appointment as defence counsel and to appoint others to secure legal representation for the accused.
27.  The Supreme Court subsequently set out in detail the applicable legal provisions on the imposition of court fines, namely Sections 222 to 224 of the CPA, and noted that the provisions did not stipulate any maximum fine. The court considered, moreover, that the fines imposed on the applicants were substantial and therefore categorised them as criminal punishment.
28.  Furthermore, the judgment contained the following reasons:
“As previously stated, the second sentence of Section 222 (1) of [the CPA] permits the prosecution to instigate proceedings for offences subject to fines pursuant to this chapter [Chapter XXXV]. According to general rules the defendants in question must then be provided with the opportunity to defend themselves. Such a case was not instigated. On the other hand it was, as previously stated, also possible for the judge in the criminal case, of his own accord, to impose fines in accordance with the first sentence of [Section 222 (1)]. Under those circumstances a special claim on behalf of the prosecution was not required. There are no grounds to hold that [the applicants] should have enjoyed lesser protection under the law, depending on which of the above-mentioned options were chosen when assessing whether they should be subject to the imposition of fines, which amounted to penalties, cf. Article 70 of the Icelandic Constitution and Article 6 (1) and (3) of [the Convention], cf. Act No. 62/1994.
When it became clear that [the applicants] would not fulfil their duty of attending the trial and the court was considering imposing fines on them, they should have been summoned to a special hearing and given an opportunity to present their case and submit further arguments to that end, beyond what they had already clearly raised in their correspondence with the District Court. However, this was not done. Instead [the applicants] were relieved of their duties at the hearing on 11 April 2013 and a decision to impose fines on them was taken in the judgment delivered on 12 December 2013.
As stated in Chapter V of the judgment the prosecutor lodged an appeal regarding this part of the case. That was done at the request of [the applicants] who, according to law, had the right to have the fines imposed on them by the District Court reviewed by a higher court following an oral hearing. [The applicants’] right to defend themselves on appeal is therefore not subject to any limitations by law and they were provided with the opportunity to raise any views in the oral hearing of the case, and as appropriate by giving statements themselves and presenting witnesses, cf. Article 205 (3) of [the CPA], or by instigating special witness proceedings, cf. Article 141 (1) of the same Act. In the light of this, the applicants’ rights have not been impaired due to the lack of an oral hearing by the District Court before the decision was taken to impose fines on them. Accordingly, the procedure which has taken place is in accordance with the law and does not violate their rights to a fair trial under Article 70 (1) of the Icelandic Constitution and Article 6 (1) and (3) of [the Convention], cf. Act No. 62/1994. For reference see the judgment of [the Court] in the case of Weber v. Switzerland from 22 May 1990 and the judgment in the case of T v. Austria from 14 November 2000. Accordingly, with reference to the reasoning of the appealed judgment, the decision on the fines imposed on [the applicants] must be upheld.”
29.  The minority shared the majority’s opinion that the applicants’ conduct in not attending the trial in the criminal case against their clients had not been in accordance with the law and had been a violation of their duty as defence counsel. The minority also agreed that their conduct had caused a delay in the proceedings and the imposed fines had constituted criminal punishment.
30.  However, the minority held as follows:
“When it became clear that [the applicants] would not attend the hearing, a hearing should have been convened immediately, according to provisions of [Chapter XXXV of the CPA], and [the applicants] given notice of the charges and the opportunity to object to the decision to impose the fines. However, that was not done. Instead [the applicants] were relieved of their duties at the trial on 11 April 2013 and new defence counsel were appointed in their stead. However, the decision to impose fines on [the applicants] was made in the judgment of 12 December 2013, without notifying them, who were not defence counsel any more, of those intentions and without allowing them to defend themselves, both as regards the decision to impose the fines and the amount.
In accordance with the aforementioned, the processing of the case before the District Court was flawed, but no legal provision allows this part of the criminal case to be referred back to the District Court to be heard again. Given these circumstances in the processing of the case, the appealed provision of the District Court’s judgment on the court fines should be annulled.”