6.  The applicant was born in 1951 and lives in Reykjavík. 7.  The applicant was a member of the Icelandic Parliament (Althingi) during the years 1987 to 2009. He served as Minister of Finance in the years 1998 to 2005, Minister for Foreign Affairs from 2005 to 2006 and Prime Minister from 2006 to 2009. After Parliamentary elections in May 2007 the applicant led the government which was formed by the Independence Party (Sjálfstæðisflokkurinn), of which he was a member, and the Social Democratic Alliance (Samfylkingin). 8.  In the beginning of October 2008 the Icelandic banking system collapsed. On 6 October 2008 the applicant proposed a bill to Parliament which, on the same day, was adopted as the Act on the Authority for Treasury Disbursements due to Unusual Financial Market Circumstances etc. (Lög um heimild til fjárveitingar úr ríkissjóði vegna sérstakra aðstæðna á fjármálamarkaði ofl., no. 125/2008). Among other things, it authorised the Financial Supervisory Authority (Fjármálaeftirlitið) to intervene in the operations of financial undertakings. On 7 and 9 October 2008 the authority seized control of Iceland’s three largest banks, Landsbanki Íslands hf., Glitnir banki hf. and Kaupþing banki hf. 9.  In December 2008 Parliament established a Special Investigation Commission (Rannsóknarnefnd Alþingis, hereinafter “the SIC”) to investigate and analyse the processes leading to, as well as the causes of, the collapse of the above-mentioned banks. According to section 1 of the Special Investigation Commission Act (Lög um rannsókn á aðdraganda og orsökum falls íslensku bankanna 2008 og tengdra atburða, no. 142/2008; hereinafter “the SIC Act”), one of the Commission’s objectives was to assess whether mistakes or negligence had occurred in the course of implementing laws and rules in respect of financial activities in Iceland and regulatory inspection in that field and, if so, who might be responsible. While its role was not to investigate potential criminal conduct, the SIC should inform the State Prosecutor of any suspicions of criminal activities having taken place as well as any potential breaches of official duty. The SIC made an extensive investigation during which it collected information from individuals, financial institutions and public institutions, conducted formal hearings with 147 individuals and meetings with a further 183 individuals. 10.  The applicant testified before the SIC on 2 and 3 July 2009. On 8 February 2010 the SIC informed him that it considered that he had acted negligently and invited him to submit a written statement in reply, which he did on 24 February 2010. 11.  On 12 April 2010 the SIC issued its report which contained a detailed description of the causes of the collapse of the Icelandic banks as well as serious criticism of the acts and omissions of a number of public officials and institutions. This included the applicant and two other ministers from his cabinet, the Minister of Finance, Mr Árni M. Mathiesen from the Independence Party, and the Minister of Business Affairs, Mr Björgvin G. Sigurðsson from the Social Democratic Alliance, who were found to have shown negligence by omitting to respond in an appropriate fashion to the impending danger for the Icelandic economy that was caused by the deteriorating situation of the banks. 12.  In the meantime, on 26 January 2009, the government led by the applicant resigned and on 1 February 2009 the Social Democratic Alliance and the Left-Green Movement (Vinstrihreyfingin – grænt framboð) formed a government. Those two parties gained a majority of seats in Parliament in the subsequent elections on 25 April 2009. 13.  In 2009 Parliament passed an amendment to the SIC Act according to which it was to elect an ad hoc parliamentary review committee (Þingmannanefndin; hereafter “the PRC”) “to address the report of the SIC on the collapse of the banks, and form recommendations as to Parliament’s response to the SIC’s conclusions”. It was also to adopt a position on ministerial accountability and assess whether there were grounds for impeachment proceedings before the Court of Impeachment (Landsdómur) for violations of the Ministerial Accountability Act (Lög um ráðherraábyrgð, no. 4/1963). The PRC was established on 30 December 2009 and was composed of nine members of Parliament representing all the parliamentary party groups. It commenced work on 15 January 2010. 14.  The PRC examined the SIC report, held 54 meetings and multiple informal working meetings. It received several expert opinions on ministerial liability from professors as well as the former state prosecutor and Ms Sigríður J. Friðjónsdóttir, then deputy state prosecutor. Ms Friðjónsdóttir attended five meetings of the PRC and expressed her opinions on the potential charges against ministers, the penal provisions that might apply, the evidence that could be relevant and the rules and content pertaining to an indictment. She also submitted a draft text for part of an indictment. The PRC further collected original documents relating to the ministers’ duties which were mentioned in the SIC report, inter alia letters, notes, minutes, emails from the Government Offices and the Central Bank of Iceland and minutes from meetings of the consultative group on financial stability and contingency planning. On 18 May 2010 the PRC sent letters to 16 individuals, including the applicant, who had held office as ministers during the period covered by the SIC report, asking them to submit comments and information regarding the report’s conclusions. The committee received replies from 14 individuals, including the applicant who submitted his reply by letter of 7 June 2010. 15.  On 11 September 2010 the PRC submitted a proposal for a parliamentary resolution to commence impeachment proceedings against four cabinet members: the three mentioned above (including the applicant) and Ms Ingibjörg Sólrún Gísladóttir, who was the former Minister of Foreign Affairs and the head of the Social Democratic Alliance. The proposal listed six points of alleged negligent behaviour, corresponding to the counts in the eventual indictment issued against the applicant (see paragraph 23 below). The applicant was considered to have been negligent in all six respects, whereas the other three ministers were deemed responsible only in respect of five of the points (excluding what was to become count 1.3 in the applicant’s indictment). The proposal was presented as a whole but Parliament decided to vote on each former minister separately. In a resolution of 28 September 2010, by 33 votes to 30, it approved the PRC’s proposal to commence impeachment proceedings against the applicant. With similar small majorities, the votes concerning the other former ministers led to the conclusion that they should not be indicted.
All 15 members of the Left-Green Movement and all three members of The Movement (Hreyfingin) voted in favour of impeachment of each of the four former ministers and all 16 members of the Independence Party voted against the proposal. Six of the nine members of the Progressive Party (Framsóknarflokkurinn) voted in favour of impeachment of all the ministers and three members voted against. As regards the members of the Social Democratic Alliance, one of its 20 members voted in favour of impeachment of each of the ministers and 11 members voted against in respect of all of them. The remaining eight Social Democratic members were the only ones that cast differing votes in regard to the four ministers: the applicant – eight in favour of impeachment; Mr Mathiesen – six; Ms Gísladóttir – four; and Mr Sigurðsson – two. 16.  On the same day, 28 September 2010, the applicant designated a lawyer for his defence. On 30 September he was formally notified of the result of the voting in Parliament. The Parliament resolution, containing the exact points of indictment, the PRC’s proposal and an explanatory memorandum with the reasons for the proposal, was made available on the website of the Parliament. 17.  On 12 October 2010 Parliament appointed Ms Friðjónsdóttir to prosecute the case on its behalf. It also appointed a parliamentary committee to assist her and to monitor the case. 18.  The Court of Impeachment constituted to adjudicate the case was composed, in accordance with section 2 of the Court of Impeachment Act (see paragraph 44 below). Thus, five members of the court were judges of the Supreme Court, one was a judge of the District Court (Héraðsdómur) of Reykjavík, and one was a professor at the Law Faculty of the University of Iceland. The latter member was, on 1 September 2011, appointed as justice of the Supreme Court, but continued to sit on the Court of Impeachment in his original capacity. The remaining eight members of the Court of Impeachment were lay judges appointed by Parliament. 19.  Following the applicant’s request by letter of 15 November 2010 the Court of Impeachment, on 30 November 2010, appointed the applicant’s lawyer as his defence counsel. The applicant claims that he and his lawyer had made such a request on several earlier occasions. However, no evidence thereof has been submitted in the present case. 20.  According to Parliament’s prosecutor (see paragraph 28 below) she invited, by a letter of 9 December 2010, the applicant’s counsel to make comments or request that further information be collected. It appears that counsel did not make any comments or requests in reply. 21.  Following decisions of the Court of Impeachment of 22 March 2011 and the District Court of 24 March 2011, the prosecutor was given access to documents and information, including documents from the SIC database, statements given before the SIC as well as correspondence from the applicant’s former work email. She conducted a research into these documents but did not hear the applicant or any witnesses during her investigation. 22.  On 11 April 2011 the applicant’s counsel was provided with a USB memory stick containing the documents which the prosecutor had obtained from the SIC database. 23.  On 10 May 2011 the applicant was indicted, in accordance with the Parliamentary resolution of 28 September 2010:
“1. 1.1  For having shown serious neglect of his duties as Prime Minister in the face of major danger looming over Icelandic financial institutions and the State Treasury, a danger of which he was or ought to have been aware and would have been able to respond to by initiating measures, legislation, general governmental instructions or governmental decisions on the basis of current law, for the purpose of avoiding foreseeable danger to the fortunes of the State. 1.2  For having failed to take initiative, either by taking measures of his own or by proposing measures to other ministers, to the effect that there would be a comprehensive and professional analysis within the administrative system of the financial risk faced by the State because of the risk of financial crisis. 1.3  For having neglected to ensure that the work and emphasis of a consultative group of the Government of financial stability and preparedness, which was established in 2006, were purposeful and produced the desired results. 1.4  For having neglected to take initiative on active measures on behalf of the State to reduce the size of the Icelandic banking system by, for example, advocating that the banks reduce their balance sheets or that some of them move their headquarters out of Iceland. 1.5  For not having followed up and assured himself that active measures were being taken in order to transfer Landsbanki Íslands hf.’s Icesave accounts in Britain to a subsidiary, and then to look for ways to enable this to happen with the active involvement of the State.
The above-specified conduct is deemed subject to section 10(b), cf. section 11, of Act no. 4/1963 [on Ministerial Responsibility], and, alternatively, section 141 of the General Penal Code, no. 19/1940. 2.
For having, during the above-mentioned period [February 2008 – October 2008] failed to implement what is directed in Article 17 of the Constitution of the Republic on the duty to hold ministerial meetings on important government matters. During this period there was little discussion at ministerial meetings of the imminent danger; there was no formal discussion of it at ministerial meetings, and nothing was recorded about these matters at the meetings. There was nevertheless specific reason to do so, especially after the meeting on 7 February 2008 between him, Ingibjörg Sólrún Gísladóttur, Árni M. Mathiesen and the Chairman of the Board of Governors of the Central Bank of Iceland; after his and Ingibjörg Sólrún Gísladóttir’s meeting on 1 April 2008 with the Board of Governors of the Central Bank of Iceland; and following a declaration to the Swedish, Danish and Norwegian Central Banks, which was signed on 15 May 2008. The Prime Minister did not initiate a formal ministerial meeting on the situation nor did he provide the Government with a separate report on the problem of the banks or its possible effect on the Icelandic State.
This is deemed to fall under section 8(c), cf. section 11, of Act no. 4/1963, and, alternatively, section 141 of the General Penal Code, no. 19/1940.” 24.  Also on 10 May 2011 an amendment to the Court of Impeachment Act (Lög um landsdóm, no. 3/1963) entered into force, according to which the judges “who hold seat on [the court] when Parliament has decided to impeach a minister, and their substitutes, shall complete the case although their term has expired”. According to the bill introducing the amendment, this was to avoid disruption of a judge’s examination of an ongoing case. As a consequence, the six-year term of office of the court’s eight lay judges, who had been appointed by Parliament on 11 May 2005, was extended until the conclusion of the proceedings against the applicant. 25.  The case was filed by the prosecution with the Court of Impeachment on 7 June 2011. The prosecution argued, inter alia, in respect of count 2 of the indictment, that the matter of the banking system and the risk of financial crisis had been important government matters and could hardly have been more important. Storm clouds had been gathering since before the beginning of the period to which the indictment related and the applicant had known or ought to have known where things were headed. Thus, this matter should have been discussed at ministerial meetings as prescribed by Article 17 of the Constitution which should be interpreted according to its words (see paragraph 42 below). The prosecution objected to the applicant’s argument that a constitutional custom had developed to the effect that only matters under Article 16 of the Constitution should be discussed in ministerial meetings under Article 17, and even if such custom existed, it could not override a clear provision of the Constitution. Furthermore, a breach against Article 17 had substantive consequences since, if cabinet meetings were not convened on urgent problems, the opportunity to respond clearly would be lessened. It had been apparent that important government matters had not been discussed by the cabinet and the knowledge that the defendant had demonstrably possessed had not been reported to the ministers. The applicant’s violation according to count 2 of the indictment was a conduct offence and punishable irrespective of the consequences or risks attributable to the conduct. 26.  The applicant challenged the impartiality and independence of the eight judges appointed by Parliament, mainly on the ground that Parliament had extended their term by having enacted the above-mentioned legislation. By its ruling on 10 June 2011, the Court of Impeachment rejected the petition, finding that the legislator had pursued a legitimate aim and that the measure had been proportionate vis-à-vis the applicant. 27.  On 5 September 2011 the applicant lodged a request to have the case dismissed, relying, among other things, on Article 6 of the Convention. He claimed that the investigation in the case had been manifestly defective, inter alia as the investigation conducted by the SIC had not been criminal in nature, the SIC having no such mandate, and as no real investigative measures had been undertaken by the PRC or the prosecutor. He had not been questioned or invited to respond to the accusations, neither before Parliament’s resolution nor before the prosecutor issued her indictment. He also challenged the impartiality of the prosecutor due to her involvement in Parliament’s preparation of the decision to indict him, during which she had been repeatedly consulted by the PRC and had allegedly expressed her opinion on his potential responsibility under the Ministerial Accountability Act. The applicant further maintained that his chance of preparing a proper defence was compromised as the counts of the indictment were undefined and only described in general terms his alleged criminal conduct and the criminal provisions under which that conduct was subsumed were unclear and discretionary. Also the rules governing the impeachment proceedings and the penal provisions of the Ministerial Accountability Act and other invoked legislation were, in his view, so unclear that due process could not be ensured. Finally, he asserted that the decision by Parliament to bring proceedings against him alone had been taken on purely arbitrary and political grounds and thus did not treat him equally with other ministers originally subject to the investigation in the case. 28.  The prosecutor contested the applicant’s request, maintaining, inter alia¸ that, in view of the thorough gathering of material by the SIC, there had been no need for an independent collection of evidence by the PRC, which was supposed to base its work on the report of the SIC. Moreover, the applicant’s defence counsel had not asked that the applicant be heard during the investigative stage, although such an opportunity was provided by section 16(2) of the Court of Impeachment Act and the prosecutor had invited him, by a letter of 9 December 2010, to make comments or request further information to be collected. With respect to the applicant’s challenge against her impartiality, the prosecutor objected to the assertion that she had expressed an opinion on the applicant’s potential criminal liability. She further claimed that the counts of the indictment were not unclear or worded in general terms, pointing out that further specifications in regard to several counts were found in the explanatory memorandum accompanying Parliament’s resolution and that, additionally, count 2 of the indictment provided explanatory examples of events that had given reason to discuss the imminent financial crisis at ministerial meetings. The prosecutor also disagreed with the applicant’s contention that the applicable procedural or criminal provisions were unclear. As for the alleged unequal treatment by Parliament when deciding to charge the applicant but not the other ministers, she stated that the majority of its members, bound only by their own conviction, had found that the facts of the case up until that point were likely to lead to a conviction of the applicant but not the others. 29.  By a decision of 3 October 2011 the Court of Impeachment upheld the applicant’s motion for dismissal in so far as it concerned counts 1.1 and 1.2 of the indictment, but rejected the remainder of the request. It noted that Parliament held the authority to bring cases against a minister and that its review committee, the PRC, had obtained, inter alia, various evidence referred to in the SIC report and written statements from several ministers, including the applicant, before finding that there was enough evidence for a parliamentary resolution to commence proceedings against the applicant. Parliament’s handling of the matter had been in compliance with relevant legislation and its resolution to commence impeachment proceedings had not prevented the appointed prosecutor from investigating the case further and gathering new evidence. Indeed, the prosecutor had continued the investigation of the case before issuing the indictment against the applicant. Moreover, judgment in a criminal case should be based on evidence presented in court, including the testimonies of witnesses. If there were insufficient support for the charges against the defendant, he would be acquitted of the charges, a more favourable outcome for him than a dismissal, which could lead to possible shortcomings being remedied and a new indictment being issued.
As regards the involvement of the prosecutor, the court referred to the general rules of pre-trial investigation under the Criminal Procedure Act (Lög um meðferð sakamála, no. 88/2008), according to which he or she is authorised to take various measures, including the collection of information and the making of decisions affecting the position of a suspect. Such intervention by the prosecutor did not affect his or her eligibility to handle the case later, such as by deciding whether to indict and bring the case to court. In line with this, the advice given to the PRC by the person subsequently appointed prosecutor could not lead to her disqualification in the case, even less so since Parliament held the authority to decide whether to indict and to determine the content of the indictment.
With respect to the content of the indictment, the court found that it generally complied with the form and structure prescribed by the Criminal Procedure Act and that it did not show such shortcomings that the entire case should be dismissed. As for counts 1.3, 1.4, 1.5 and 2, the court considered that there was no doubt as to what conduct was the subject of the indictment and how it was deemed punishable by law. However, the conduct imputed to the applicant in counts 1.1 and 1.2 had not been specified with sufficient clarity and these charges were accordingly dismissed.
The court went on to find that the procedure in impeachment proceedings was unambiguous and foreseeable, the Court of Impeachment Act containing a few special provisions and the proceedings being, in all other respects, governed by the rules of general application laid down in the Criminal Procedure Act. Furthermore, the penal provisions invoked by the prosecution were worded in such a way that they could be interpreted on the basis of objective criteria and were clear enough to enable a proper defence.
Finally, in regard to the fact that Parliament had voted to bring proceedings exclusively against the applicant, the court noted that, under the Constitution, members of Parliament were bound only by their own conviction. Moreover, the resolution adopted by Parliament, as the holder of authority to decide on prosecution in impeachment cases, was not subject to review by the court in such a manner as might lead to the dismissal of the case. 30.  Subsequently, the applicant submitted written pleadings to the Court of Impeachment. 31.  The public hearing in the case commenced on 5 March 2012. It started with the formal testimony of the applicant, the first statement he gave since the charges had been brought against him. During the hearing, which lasted until 16 March, written evidence was produced and 40 witnesses gave evidence before the court. The applicant attended all sessions. On 13 March the applicant testified for a second time. Oral pleadings by the lawyers for the applicant and the prosecution were made on 15 and 16 March. 32.  By a judgment of 23 April 2012 the Court of Impeachment unanimously acquitted the applicant of counts 1.3, 1.4 and 1.5 of the indictment, finding that the prosecution had not established that the actions which he was accused of having neglected could or would have averted the danger facing the Icelandic financial institutions and the State treasury or reduced it considerably. As for certain negligence imputed to him by the prosecution, the court considered that it related to actions that were not among his duties. However, by nine votes to six, the majority consisting of five professional judges and four lay judges, the Court of Impeachment found the applicant guilty in respect of count 2. The court considered it established that major danger had been threatening the Icelandic commercial banks and the State Treasury as early as February 2008 and that the applicant had to have been aware of that danger. However, basing itself on the minutes of 52 ministerial meetings held between 1 February and 6 October 2008 and the testimony of the applicant and the witnesses, in particular five ministers who had held a seat in the government in 2008, the court found that this matter had not been discussed during the meetings, apart from the last four meetings, on 30 September and on 3, 5 and 6 October. It therefore concluded that the applicant had failed to comply with the duty set out in Article 17 of the Constitution to hold ministerial meetings on “important government matters”. 33.  As to the criminal liability under the Ministerial Accountability Act, the court generally stated:
“The accountability provided for in Article 14 of the Constitution and Article 1 of [the Ministerial Accountability Act] represents an addition to the parliamentary and political responsibility borne by a minister towards Parliament in respect of the discharge of his duties of office on the basis of parliamentary rule. Even though parliamentary responsibility places great restraint on a minister, the Constitution assumes that a breach in office on his part may entail criminal liability, as further laid down by law. When comparing these two kinds of responsibility it must be concluded that only serious wrongs on the part of the minister committed in office would lead to his punishment. Accordingly, the sole matter of his conduct being worthy of criticism or blame cannot suffice for invoking the legal accountability in question, so that more grave matters must be in issue. It is then determined by an assessment of all facts whether certain conduct is considered serious enough to be subject to punishment, either pursuant to [the Ministerial Accountability Act] or the general penal code, cf. section 1(2) of the aforementioned Act.” 34.  The court went on to make the following remarks about section 8(c) of the Ministerial Accountability Act:
“According to section 8(c) of [the Act] it is punishable if a minister, apart from the incidents described in points (a) and (b) of the section, ‘by other means personally implements, orders the implementation or allows the implementation of any measure that contravenes the Constitution of the Republic, or fails to implement any measure prescribed therein, or causes neglect of such implementation’. The latter part of this provision describes an offence of direct omission, which means that the very fact of a minister neglecting to implement any matter ordered by the Constitution or causing the neglect of its implementation will be a punishable offence irrespective of the consequences or risks attributable to such an omission. As noted in the explanatory notes to the bill that became [the Act], section 8(c) of the Act contains a provision of general import which applies to all breaches of the Constitution other than those specifically made punishable in other points of the section. Accordingly, it falls within the conduct description of this provision to fail to comply with the duty, provided for in Article 17 of the Constitution, to hold ministerial meetings ‘to discuss new legislative proposals and important government matters’.” 35.  In regard to the applicant’s motion to have the whole case dismissed due to the alleged lack of clarity of section 8(c) of the Ministerial Accountability Act, the Court of Impeachment considered that the words “important government matters” in Article 17 of the Constitution, to which section 8(c) referred, could easily be understood by a reasonable man in the office held by the applicant and that the provisions contained predictable and reasonable criteria regarding the minister’s discharge of official duties. 36.  The applicant had also maintained that it was clear from the origin and history of Article 17 of the Constitution that important government matters that should be discussed in ministerial meetings according to that provision were only matters that should have been submitted to the President in the State Council according to Article 16 of the Constitution. The court examined the history of the two constitutional articles, in particular the difference in language between “important government measures” (mikilvægar stjórnarráðstafanir) in Article 16 and “important government matters” (mikilvæg stjórnarmálefni) in Article 17, finding that the latter term was literally more extensive. It concluded as follows:
“... These two features, that the constitutional provisions on ministerial meetings has remained substantially unchanged despite the change in Iceland’s constitutional position in 1944 and that a distinction was made between matters to be discussed at ministerial meetings, on the one hand, and those to be submitted to the State Council, on the other, in the first Act on the Government Offices of Iceland, unequivocally support a literal interpretation of the instruction under Article 17 of the Constitution. In accordance with a principle of statutory interpretation it will here be found proper to follow the clear language of the provision, which prior preparatory works cannot refute.
Accordingly, the Prime Minister, who heads the cabinet and leads ministerial meetings, has a duty to ensure that important government matters of which he is aware are discussed and, where applicable, addressed in those meetings, as provided for in Article 17 of the Constitution. ...” 37.  The court then noted that it was not at the Prime Minister’s sole discretion to determine when a matter was of such nature that it should be raised at a ministerial meeting. Rather, of primary importance was to what extent it concerned the interests of the state and the general population. The court concluded that the danger facing the Icelandic bank system and thus the welfare of the state had been of gigantic and unprecedented proportions and was, due to the great public interest at stake, without a doubt an important government matter within the meaning of Article 17 of the Constitution. 38.  The applicant had asserted that cabinet meetings were not a common platform for ministers to discuss matters with other ministers and that Article 17 of the Constitution did not prevent individual ministers from discussing certain matters among themselves without presenting them at the meetings. Furthermore, the minutes of the cabinet meetings did not exhaustively record the discussions, as they contained only a listing of the items placed on the agenda. Frequently, other subjects than those listed had been discussed, inter alia under the item “other issues”. Statements by former ministers before the court had clearly showed that the banking system had been repeatedly discussed at the meetings held during the period to which the indictment referred.
In this respect, the court noted that, under the Constitution, cabinet meetings was the forum for political consultation between ministers on important government matters. Whether or not it had been customary to raise comparable issues at ministerial meetings or in informal consultations between the chairmen of governing coalition parties, such practices could not absolve the Prime Minister from the duty laid down in Article 17. 39.  As regards the specific conduct imputed to the applicant, the court stated, inter alia, the following:
“According to that which has been related above, it is considered proved beyond doubt in the case that the great danger facing the Icelandic banks and thus the welfare of the State was not discussed at cabinet meetings in the period from February 2008 until the end of September the same year. As stated above, it must also be considered a fact in the resolution of the case that various issues that were up for discussion in the consultative group on financial stability and contingency planning, and which there was due reason to discuss in the cabinet, were not dealt with at those meetings. That was all the more urgent as the defendant did not convey important information which he possessed about the affairs of the banks to the Minister for Business Affairs, to whom they pertained. Last but not least it is proven that those two aforesaid documents that were forwarded to foreign authorities [a declaration of 16 May 2008 signed by the defendant, the ministers of foreign affairs and finance and the board of governors of the Central Bank of Iceland to the central banks of Sweden, Denmark and Norway on the completion of currency swap agreements and a letter of 20 August 2008 by the Ministry of Business Affairs to the UK Treasury providing answers to certain questions posed by the latter] and contained, on the one hand, obligations, and, on the other, promises, in the name of the government, were not discussed at its meetings.
The defendant and various other persons who have testified before the Court have emphasised that the situation in financial markets was so sensitive during the period related to the case that the slightest rumour that the Icelandic banks might encounter a liquidity crisis could have accelerated and even caused their collapse. For this reason it had been very important to discuss the danger facing the banking system within a small group, in full confidentiality. Although those views may have been fully justified, especially while the difficulties of the banks were still known by few, it is to no avail for the defendant to allege that for this reason he was unable to give an account of the issues in question at cabinet meetings. The framework of those meetings is not least designed so that ministers and supreme holders of executive power can consult one another and discuss important issues confidentially and behind closed doors, with the ministers having a compelling duty ... not to disclose points raised there concerning such confidential matters.
The defendant’s conduct of failing to comply with Article 17 of the Constitution where it prescribes that ministerial meetings should be held on important government matters ... not only led to a breach against a procedural rule but also contributed to the fact that a political policy to address the huge problem of which the defendant must have been aware in February 2008 was not formulated at the level of the cabinet of ministers. If such a policy had been formulated and then implemented in an organised manner, including action by the Central Bank of Iceland and the Financial Supervisory Authority, it may be argued that it would have been possible to lessen the harm caused by the collapse of the banks in the beginning of October 2008. It is also likely that the authorities would then have been better prepared for taking a position towards the request of Glitnir Bank hf. for financial assistance at the end of September 2008, so that the problems of that bank might have been resolved in a more deliberate manner than was the case.
It may be inferred from the defendant’s testimony before the court that he closely followed the progress of the matters in question. ... [I]t must be regarded as gross carelessness on the part of the defendant to have failed to take up the issues related above for discussion at cabinet meetings, as he was aware or at least should have been aware that they were of such importance, and of such nature, as an integral part of the government’s economic policy, that he had a duty to do so.” 40.  The applicant was consequently convicted of a violation of section 8(c) of the Ministerial Accountability Act, for having by gross negligence failed to hold ministerial meetings on important government matters as prescribed in Article 17 of the Constitution. He was not sentenced to any punishment and the Icelandic State was ordered to bear all legal costs, including fees to the applicant’s counsel. Not subject to an appeal, the judgment was final. 41.  The minority’s opinion was to acquit the applicant of all charges. In regard to count 2 of the indictment, the minority referred to the requirement of foreseeability and clarity and to the rule of interpretation that a criminal provision should be narrowly construed when there is doubt as to its application. It expressed the following view on the history of Articles 16 and 17 of the Constitution:
“According to the interpretation of Article 17 of the Constitution related above, the duty to hold ministerial meetings only extended to meetings on matters to be submitted to the State Council and matters which individual ministers wished to raise, and the actual practice in respect of the functions of ministerial meetings has been in keeping with this ever since. In addition, the witness statements by ministers in the [applicant’s] cabinet have indicated that economic issues and the issues of financial undertakings were frequently discussed in cabinet meetings at the outset of the meeting or under the agenda item of other issues, even though this was not recorded in the minutes.
In this case, the interpretation of Article 17 of the Constitution is in issue when assessing whether [the applicant] became guilty of punishable conduct, and viewpoints on good administrative practices which have gained more prominence of late cannot be a determining factor in this context. It should also be noted that a minister will not be held criminally liable under [the Ministerial Accountability Act] unless serious errors have been committed while in office, which cannot apply to the charges according to this count of the indictment, as related above in the course of interpretation of Article 17 of the Constitution. Taking this into consideration, we are of the opinion that the [applicant] should be acquitted of a violation of the [Act].”