CASE OF JÚLÍUS ÞÓR SIGURÞÓRSSON v. ICELAND

1. The case originated in an application (no. 38797/17) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Icelandic national, Mr Júlíus Þór Sigurþórsson (“the applicant”), on 26 May 2017.
2. The applicant was represented by Mr Bragi Björnsson, a lawyer practising in Reykjavík. The Icelandic Government (“the Government”) were represented by their Agent, Mr Einar Karl Hallvarðsson, State Attorney General.
3. The applicant complained in particular that, after having been acquitted of criminal offences at first instance, he had been convicted by the Supreme Court without it rehearing the oral evidence of the accused and witnesses on the basis of which he had been acquitted. He relied on Article 6 § 1 of the Convention.
4. On 18 April 2018 notice of the above-mentioned complaint was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1962 and lives in Kópavogur.
6. At the time of the events, the applicant was hardware item manager in the Timber Sales department of a hardware company, Húsasmiðjan. In 2014, following a police investigation, the Office of the Special Prosecutor issued an indictment against the applicant and twelve other employees of Húsasmiðjan and two other hardware companies, Byko and Úlfurinn Lagersala, charging them with criminal price collusion. The indictment stated that the alleged offences had primarily been committed by telephone and e-mail communications. During the investigation, the Reykjanes District Court had authorised the interception and recording of calls made using certain phone numbers registered to the three companies. The charge against the applicant was based on his receipt of a telephone call from B., an employee of Byko, on 28 February 2011, in which they had allegedly encouraged each other to commit criminal price collusion.
7. During the proceedings in the District Court the prosecution submitted information about the telephone calls, as well as recordings of some of them, and e-mails and other documentary evidence, concerning in particular exchanges of information about prices. The District Court dismissed the case against one of the accused; the others pleaded not guilty. During the trial they made oral statements before the court in the presence of the other co-accused, irrespective of whether the latter had already testified. They were cross-examined by their defence lawyers and the prosecutors, as well as being asked questions by the judges. Numerous witnesses on behalf of both the prosecution and the defence gave evidence in the presence of the accused. The applicant’s main defence was that he had received an unexpected call which he did not know how to respond to and that he had not made any kind of agreement with B.; he had immediately reported the call to his supervisor and any information given in the call had not affected and could not have affected his work at Húsasmiðjan.
8. By a judgment of 9 April 2015 the District Court acquitted the applicant of criminal price collusion and inciting such collusion, but convicted one of the co-accused of those offences; the remaining ten co-accused were acquitted of all charges. With regard to the applicant, the court accepted his testimony, which it considered to be supported by the testimony of a co-accused and one of the witnesses, and held that “it had not been shown that, despite his negligence in not ending the telephone call in question immediately, he had not known what to expect or that he could have reacted to the call in any other way than he did” (“ Telur dómurinn því ósannað að, þrátt fyrir gáleysi ákærða um að slíta ekki samtalinu strax, að hann hafi ekki vitað á hverju hann átti von né hafa getað brugðist við símtalinu á annan hátt en hann gerði .”). Furthermore, his decision to notify his superiors immediately suggested that he had not wished to participate in the arrangements proposed by B. The court concluded that the subjective requirement of negligence was not fulfilled due to the manner in which the applicant had reacted to the telephone call.
9. The prosecution appealed to the Supreme Court against the acquittal of the applicant and certain of the other co-accused and submitted all the tangible evidence which had been before the District Court, as well as a complete transcript of the statements of the accused and the witnesses in the proceedings before the District Court.
10. In the proceedings before the Supreme Court the defendants and the witnesses were not heard again. The defendants submitted written observations and their representatives made oral presentations at a public hearing before the Supreme Court. In its judgment of 1 December 2016, the Supreme Court upheld the acquittal of two defendants and the conviction of one but overturned the acquittal of the applicant and seven other defendants, convicting them of breaching section 41a(1) and (2), item a of the Competition Act no. 44/2005, together with section 10 of the same Act (see paragraph 13 below). The applicant was given a suspended sentence of 9 months’ imprisonment. The Supreme Court, with reference to section 114(2) second item of the Criminal Procedures Act (see paragraph 12, below), criticised the fact that the District Court had allowed the defendants to be present while their co-accused were making their oral statements, irrespective of whether they had yet to give a statement themselves. It considered that since the conduct of which the defendants were accused was similar and significantly rooted in the same circumstances, it was important (“deemed as urgent”) to prevent them hearing the statements of their co-accused until after they themselves had given evidence. The Supreme Court also criticised the District Court’s failure to differentiate between the defendants as accused and as witnesses, despite the different legal status, some defendants having given statements in respect of the charges against them and then having been given the status of witness when giving statements about other charges in the indictment. On the basis of those considerations, the Supreme Court concluded that the method followed for hearing the statements of the defendants was “not least improper on the grounds it significantly diminishes the evidentiary value of their testimonies in court.”
11. The Supreme Court considered it proven, on the basis of the evidence submitted in the case, that Byko had initially made enquiries by telephone about prices at Húsasmiðjan. The interaction had developed from being unilateral to being mutual as the two individuals exchanged information about prices of the companies for the same or comparable types of item, and the purpose of the information had obviously been to get a clearer picture of the competition’s prices than each company could have had by only examining the prices using methods that were available to customers. It was deemed that the frequent and regular interaction entailed concerted measures with the goal of distorting the competition between the companies. With regard to the applicant in particular, the Supreme Court considered that in the telephone conversation between him and B. on 28 February 2011 both of them had intentionally and seriously breached section 41a(1) and (2), item a of the Competition Act, as it was beyond doubt that during that conversation they had encouraged each other to keep up the prices of hardware items, including when making bids.
12. The relevant provisions of the Criminal Procedures Act (Law no. 88/2008, Lög um meðferð sakamála ) at the material time were as follows:
Witnesses in the same case may not hear the defendant give his statement. The judge may furthermore decide that the same shall apply to other defendants if reason renders this appropriate.
“With the limits arising from other provisions of this Act, appeal against a District Court judgment lies to the Supreme Court in order to obtain:
a. a re-examination of the determination of penalties;
b. a re-examination of conclusions based on the interpretation or application of rules of law;
c. a re-examination of conclusions based on the evaluation of the evidentiary value of documentation other than oral statements before the District Court;
d. quashing of the judgment and remittal of the case;
e. dismissal of the case by the District Court.
When a judgment is appealed against, a re-examination may also be sought of rulings and decisions made during the court proceedings before the District Court.
The Supreme Court cannot re-evaluate a District Court’s conclusion on the evidentiary value of oral testimony, unless the witness in question or the defendant have given oral statements before the Supreme Court.
Should the Supreme Court consider that the conclusion of a District Court concerning the evidentiary value of oral testimony in court may be incorrect so as to materially affect the outcome of the case, and the witnesses or defendant in question have not given oral testimony before the Supreme Court, the Supreme Court may quash the judgment of the District Court as well as its procedure to the extent necessary for oral testimony to be given before the District Court, and for the case to be resolved anew. Should a District Court judgment be quashed in such a manner, three judges shall deal with the case in a new trial before the District Court and they may not be the same judges as previously dealt with the case.”
13. According to the Criminal Procedures Act, judicial proceedings can be reopened under certain conditions. Section 228 of the Act states that when a District Court judgment has not been appealed against or the time-limit to appeal has passed, the Committee on Reopening of Judicial Proceedings can approve a request from a person who considers that he or she has been wrongly convicted or convicted of a more serious offence than he or she committed to reopen the judicial proceedings before the District Court, if certain conditions are fulfilled. The conditions are, inter alia, that there were serious defects in the processing of the case which affected its conclusion (item d). The State Prosecutor can request a reopening to the advantage of the convicted person if he considers that the conditions in paragraph 1 of section 228 of the Act are fulfilled. In accordance with section 229 of the Act, the request for reopening shall be in writing and sent to the Committee on Reopening of Judicial Proceedings. It shall include detailed reasoning on how the conditions for reopening are considered to be fulfilled. According to section 231 of the Act, the Committee on Reopening of Judicial Proceedings decides whether proceedings will be reopened. If a request for reopening is approved the first judgment remains in force until a new judgment is delivered in the case. Section 232 of the Act states that the Committee on Reopening of Judicial Proceedings can accept a request for the reopening of a case which has been finally decided by the Court of Appeal or the Supreme Court and a new judgment will be delivered if the conditions of section 228 are fulfilled.
14. The relevant provisions of Competition Act, no. 44/2005, are as follows:
“Any agreement or resolution between undertakings, whether binding or guiding, and concerted practices which have as their object or effect the prevention, restriction or distortion of competition are prohibited. This prohibition includes any agreements, resolutions and concerted practices which:
a. directly or indirectly affect prices, discounts, margins or any other trading conditions;
b. limit or control production, markets, technical development, or investment;
c. share markets or sources of supply;
d. apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
e. make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature and according to commercial usage, have no connection with the subject of such contracts.”
“Any employee or director of an undertaking or association of undertakings who carries out, incites to or gives instructions on collusion which violates Sections 10 and/or 12 and relates to the issues specified in paragraphs 2 and 3 shall be subject to fines or imprisonment up to six years.
The provisions of paragraph 1 apply to the following violations of Sections 10 or 12 by undertakings or associations of undertakings operating at the same sales stage:
a. collusion on prices, discounts, margins or other trading conditions;
b. collusion on restriction or control of supply, production, markets or sales;
c. collusion on sharing out sources of supply or markets, e.g. by region or customer;
d. collusion on the preparation of tenders;
e. collusion on avoiding business with specific undertakings or consumers;
f. provision of information on the matters in subsections (a) to (e).
The provision in paragraph 1 also applies to collusion between undertakings which has the purpose of avoiding the commencement of competition between undertakings.
Collusion in this section refers to agreements, resolutions, decisions or concerted practices of undertakings or associations of undertakings.
Suspension of licence pursuant to Article 68 of the Penal Code, and confiscation of assets pursuant to Article 69 of the Code, may be adjudged in proceedings that have their origins in violations of sections 10, 12 and 41b of this Act.
An attempt to commit or participation in violations pursuant to this section is subject to sanctions as prescribed in the Penal Code.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15. The applicant complained that after he had been acquitted at first instance, the Supreme Court had convicted him without rehearing the oral evidence. He maintained that this had deprived him of a fair hearing. He relied on Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...”
16. The Government contested that argument.
17. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
18. In the applicant’s view, ignoring testimony which the District Court had deemed credible, resulting in his acquittal, had to be considered a re-examination of the evidentiary value of the testimony, and it had to follow that the Supreme Court had not found the testimony to be credible. If it had agreed that the testimony was credible it could not have convicted him.
19. The applicant accepted that it was necessary to assess the fairness of the proceedings in their entirety but disagreed that he had had a fair trial at all stages, as maintained by the Government. In particular, his right to give oral testimony, considered credible by the District Court, was of no value if the Supreme Court could completely disregard it without hearing it. As to the Government’s assertion that he had not requested the taking of oral evidence by the Supreme Court, the applicant maintained that no such request could be made, as it was for the Supreme Court itself to decide, and added that there had in any event been no reason for such a request, as he had been acquitted at first instance.
20. The applicant considered that in finding that the value of the oral testimony had been “significantly diminished” because of the method followed, the Supreme Court had “thrown out” that testimony, as a result of which all clarifications and explanations provided by the defendants, deemed credible by the District Court, had been ignored. For the applicant, this had entailed a reassessment of the credibility of the oral testimony.
21. As to the Government’s assertion that the Supreme Court routinely criticises procedural decisions of the District Courts without the outcome of the case being affected, the applicant noted that in the cases referred to by the Government the Supreme Court had clearly stated that the outcome of the case was not affected, which it had not done in the present case; on the contrary, it had clearly stated that the procedure followed had significantly diminished the evidentiary value of the testimony. Moreover, it had considered it “urgent” to follow a different procedure in order to prevent the accused from hearing each other’s testimony, which showed that it was not merely a matter of routine criticism. In the applicant’s view, by placing a significantly diminished evidentiary value on the defendants’ testimony, the Supreme Court had reassessed its evidentiary value.
22. The applicant further disputed the Government’s position that his conviction had been based solely on an assessment of the tangible evidence. He maintained that since exchanging publicly available price information was not per se an infringement of competition law, the tangible documentary evidence was not sufficient to establish a breach of that law; the “goal” and “purpose” of the information exchange were not stated anywhere in the tangible evidence, and the Supreme Court’s conclusions in that respect were contrary to the oral testimony of all the defendants. The District Court had found the explanations provided to be credible but the Supreme Court had made no reference to those explanations, citing only the phone records.
23. The applicant considered that the case was substantially similar to Botten v. Norway, 19 February 1996, § 39, Reports of Judgments and Decisions 1996 ‑ I, and Zahirović v. Croatia, no. 58590/11, 25 April 2013. In particular, the procedure followed in Botten was in all material aspects comparable to that in the present case, and although there were differences in the powers of the respective Supreme Courts, the reasoning of the Court in finding a violation of Article 6 § 1 of the Convention in Botten applied a fortiori to his case.
24. The Government maintained that the Supreme Court had not reassessed, in whole or in part, the evidentiary value of the testimonies given before the District Court. With regard to the applicant’s suggestion that the Supreme Court had been under an obligation under section 208(2) of the Criminal Procedures Act to summon him to give testimony before overturning his acquittal, the Government recalled that it is the first place for the national courts to interpret the provisions of domestic law and that the Supreme Court’s interpretation could not be called into question unless it could be deemed arbitrary or manifestly unreasonable. The Government considered that the Supreme Court’s interpretation of the law in the present case could not be regarded as such.
25. As to the alleged violation of Article 6 § 1 of the Convention, the Government stressed that the Court’s task was to assess whether the proceedings in their entirety had been fair. They recalled that according to the Court’s case-law the manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings. They maintained that the applicant had enjoyed a fair trial at all stages of the proceedings: he had enjoyed full equality with the prosecution as regards the submission of written evidence and no limitations had been imposed on his right to call witnesses at first instance, and he had had every opportunity to react to any evidence submitted by the prosecution. The District Court had held a full adversarial hearing at which the prosecution and the defence had been heard, as well as the applicant himself, the co-accused and all witnesses called by the defence. The fairness of those proceedings was moreover not disputed or open to question and these considerations had to be taken into account in the wider assessment of the fairness of the proceedings viewed as a whole. Furthermore, an oral hearing had been heard before the Supreme Court, at which the applicant had had full legal representation and both the prosecution and the defence had been heard.
26. The Government noted that according to the Court’s case-law, where a court of appeal has full jurisdiction to examine points of both law and fact, Article 6 § 1 does not always require a public hearing or, if a hearing is held, a right to be present in person. They added that neither the applicant nor his lawyer had requested that the applicant, the co-accused or the witnesses should testify before the Supreme Court. They noted that pursuant to section 196(1) of the Criminal Procedures Act the Supreme Court had had full jurisdiction to examine questions of fact as well as questions of law, including the evidentiary value of documentary evidence other than oral testimonies given before a District Court. It followed that the Supreme Court did not reassess oral testimonies, unless the accused or witness in question had given oral statements before the Supreme Court itself. As a rule, the Supreme Court, acting as second and final instance, did not hear the entire case afresh but relied on the District Court’s assessment of the evidentiary value of the oral testimonies given before the latter.
27. With regard to the Supreme Court’s finding that the evidentiary value of the oral testimonies in the present case had been significantly diminished, the Government considered that when the relevant paragraph was read in context it was apparent that the Supreme Court had not reassessed the evidentiary value of the testimonies. Indeed, it had stated in its judgment that it “cannot re-evaluate the conclusions of the District Court judge regarding the evidentiary value of an oral testimony unless the relevant witness or defendant has testified before the Supreme Court”. The assessment of the applicant’s guilt had thus clearly been based on tangible evidence and not on the testimonies given before the District Court. The Government added in this respect that the Supreme Court’s criticism had related to procedural issues, and that it routinely criticised procedure before the District Courts in an effort to educate, but that such criticism could relate to defects which were not sufficient to require the quashing of the judgment appealed against. In the present case, the criticism had been twofold: firstly, as regards defendants having been allowed to hear the testimony of co-accused before giving evidence themselves, and secondly as regards defendants giving statements first as suspects and then as witnesses. However, while the Supreme Court had concluded that the evidentiary value of the testimonies had been significantly diminished, it had not reassessed the evidentiary value of those testimonies.
28. The Government emphasised that the applicant and the co-accused had been charged first and foremost with criminal price collusion by telephone and e-mail communications. Accordingly, the evidence which the prosecution had submitted during the trial had been information about telephone calls, including when they took place and how long they lasted, sound recordings of some of them, e-mails and other documentary evidence. Consequently, the courts had had to assess that tangible evidence when deciding the case, and in that respect the Supreme Court – which could read and/or listen to that evidence – had not been bound by the District Court’s evaluation of its value. Its conviction of the applicant and other co-accused had been based on that evidence, which the Supreme Court had considered sufficient to establish guilt; where no such evidence existed, the defendants had been acquitted. Furthermore, the Supreme Court had not been bound by the District Court’s conclusions in so far as they were based on an incorrect interpretation of the relevant provisions of the Competition Act.
29. The Government distinguished the case from cases in which the Court had held that an appellate court could not overturn an acquittal by a lower court and render a judgment convicting the accused without a direct assessment of testimonies given by the accused and witnesses in person. They considered that those cases had in common that the oral testimonies in question were the only and decisive evidence on which the appellate court had based its judgment. In the present case, by contrast, the evidence had not been limited to the testimonies but had consisted of the tangible material.
30. The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any specific rules on the admissibility of evidence or the way evidence should be assessed, which are therefore primarily matters for regulation by national legislation and the domestic courts (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, 21 January 1999, Kashlev v. Estonia, no. 22574/08, § 40, 26 April 2016, and Lazu v. the Republic of Moldova, no. 46182/08, § 34, 5 July 2016). It is not the function of the Court to deal with errors of fact or of law allegedly committed by a domestic court unless and in so far as they may have infringed rights and freedoms protected by the Convention. In the determination of whether the proceedings were fair the Court does not act as a court of fourth instance deciding on whether the evidence had been obtained unlawfully in terms of domestic law, its admissibility or on the guilt of an applicant. These matters, in line with the principle of subsidiarity, are the province of the domestic courts. It is not appropriate for the Court to rule on whether the available evidence was sufficient for an applicant’s conviction and thus to substitute its own assessment of the facts and the evidence for that of the domestic courts. The Court’s only concern is to examine whether the proceedings have been conducted fairly and that in a given case they were compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case ( Murtazaliyeva v. Russia [GC], no. 36658/05, § 149, 18 December 2018).
31. As to the scope of this case, the Court notes from the outset that the applicant complained, with reference to the general right to a fair hearing in Article 6 § 1 of the Convention, that the Supreme Court had re-evaluated the oral evidence without hearing either the applicant in person or the witnesses. As to the latter, no reference was made to the right to hear witnesses under Article 6 § 3(d) of the Convention. The Government also centred their arguments on Article 6 § 1. The Court for its part sees no need to examine any part of the complaint under Article 6 § 3(d) of its own motion, as the application does not concern the right to hear witnesses “on the same conditions” as the prosecution, but rather the scope of the general right to a “fair hearing” in Article 6 § 1. Thus, the Court considers that the complaint may suitably be dealt with under that provision (see Sigurþór Arnarsson v. Iceland, no. 44671/98, § 29, 15 July 2003).
32. The Court reiterates that the manner of application of Article 6 § 1 to proceedings after appeal, including to supreme courts, depends on the special features of the proceedings involved; account must be taken of the entirety of the procedural system in the domestic legal order and of the role of the particular court therein (see, inter alia, Botten v. Norway, cited above, § 39, Sigurþór Arnarsson v. Iceland, cited above, § 30, and Lazu v. the Republic of Moldova, cited above, § 33). Leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 § 1, although the appellant was not given an opportunity to be heard in person by the appeal court.
33. Furthermore, even if the appellate court has jurisdiction to examine both points of law and of fact, Article 6 § 1 does not always require an oral hearing or, if a hearing takes place, that the accused is allowed to be present in person and to address the court directly (see, inter alia, Botten v. Norway, cited above, § 39, and Sigurþór Arnarsson v. Iceland, cited above, § 30). It may also be that the accused unequivocally has waived his right to take part in the appeal hearing (see, inter alia, Kashlev v. Estonia, cited above, § 51). However, the Court has held that where an appellate court is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by the accused – who claims that he has not committed the act alleged to constitute a criminal offence (see Constantinescu v. Romania, no. 28871/95, 27 June 2000, with reference to Ekbatani v. Sweden, 26 May 1988, § 32, Series A no. 134; see also Dondarini v. San Marino, no. 50545/99, § 27, 6 July 2004). To this end, there is a close link to the Court’s established case-law to the effect that in the determination of a criminal charge, the defendant should, as a general rule, be heard by the tribunal convicting him (see, inter alia, Sándor Lajos Kiss v. Hungary, no. 26958/05, § 22, 29 September 2009).
34. It is true, as emphasized by the Government, that the Court has held that the fact that an appeal court is empowered to overturn an acquittal by a lower court without summoning the defendant and without hearing the latter or witnesses in person does not as such and on its own infringe the fair hearing guarantees in Article 6 § 1 (see Botten v. Norway, cited above, § 48).
35. However, the Court’s case-law also demonstrates, in line with the Court’s general approach already described (see paragraph 33 above), that if the appeal court has jurisdiction to examine afresh factual issues either as to the question of guilt or as to the sentencing, or both, the right to a fair hearing according to Article 6 § 1, may, depending on the particular circumstances of the case, bar the appeal court from convicting an accused who has already been acquitted by the lower court. Taking into account what is at stake for the accused, the overall question would be whether the appeal court could, “as a matter of fair trial, properly examine the issues to be determined without a direct assessment of the evidence” given by the accused or the witness in person (see Botten v. Norway, cited above, § 52).
36. Moreover, the Court’s case-law on this matter, when seen as a whole and in its context, draws a distinction between situations in which an appeal court which reversed an acquittal without itself hearing the oral evidence on which the acquittal was based not only had jurisdiction to examine points of fact as well as points of law but actually proceeded to a fresh evaluation of the facts, and situations in which the appeal court only disagreed with the lower court on the interpretation of the law and/or its application to the established facts, even if it also had jurisdiction in respect of the facts. For example, in the case of Igual Coll v. Spain, no. 37496/04, § 36, 10 March 2008, the Court considered that the appeal court had not simply given a different legal interpretation or another application of the law to facts already established at first instance, but had carried out a fresh evaluation of facts beyond purely legal considerations (see also Spînu v. Romania, no. 32030/02, §§ 55-59, 29 April 2008, Andreescu v. Romania, no. 19452/02, §§ 65-70, 8 June 2010, Almenara Alvarez v Spain, no. 16096/08, 25 October 2011). Similarly, in Marcos Barrios v. Spain, no. 17122/07, §§ 40-41, 21 September 2010, the Court held that the appeal court had expressed itself on a question of fact, namely the credibility of a witness, thus modifying the facts established at first instance and taking a fresh position on facts which were decisive for the determination of the applicant’s guilt (see also García Hernández v. Spain, no. 15256/07, §§ 33 ‑ 34, 16 November 2010).
37. Conversely, in Bazo González v. Spain, no. 30643/04, 16 December 2008, the Court found that there had not been a violation of Article 6 § 1 on the ground that the aspects which the appeal court had been called on to analyse in order to convict the applicant had had a predominantly legal character, and its judgment had expressly stated that it was not for it to carry out a fresh evaluation of the evidence; rather, it had only made a different legal interpretation from that of the lower court (contrast Sigurþór Arnarsson v. Iceland, cited above, § 34, and Mihaiu v. Romania, no. 43512/02, § 38, 4 November 2008, in which the Court emphasised the predominantly factual nature of the issues). A similar conclusion was reached in Keskinen and Veljekset Keskinen Oy v. Finland, no. 34721/09, 5 June 2012. However, as explained by the Court in Suuripää v. Finland, no. 43151/02, § 44, 12 January 2010, one must at this point take into account that “the facts and the legal interpretation can be intertwined to an extent that it is difficult to separate the two from each other.”
38. Finally, if the direct assessment of the evidence is deemed necessary for the reasons explained above, the appeal court is under the duty to take positive measures to this effect, notwithstanding the fact that the applicant did not attend the hearing, ask for leave to address the court or object, through his counsel, to a new judgment being given (see Botten v. Norway, cited above, § 53, and Sigurþór Arnarsson v. Iceland, cited above, § 38). In the alternative, the appeal court must limit itself to quashing the lower court’s acquittal and referring the case back for a retrial.
(b) Application of those principles to the present case
39. In the present case, the Court notes that the applicant was acquitted by the District Court after a full adversarial hearing at which evidence, including oral testimony of the defendants and witnesses, was taken. The prosecution appealed inter alia against the applicant’s acquittal to the Supreme Court, which held a hearing at which the defendants’ representatives presented oral arguments. The Supreme Court had full jurisdiction to examine questions of fact as well as questions of law, including the evidentiary value of documentary evidence; however, it could not re-evaluate oral evidence given before the District Court without rehearing it. The Supreme Court, without rehearing the oral evidence, convicted the applicant of criminal price collusion and sentenced him to 9 months’ imprisonment, suspended. The question before the Court, therefore, is whether, in these circumstances, the Supreme Court could, as a matter of fair trial, properly examine the issues to be determined without a direct assessment of the evidence given by the defendants and the witnesses in person.
40. The Court see no reason to question the Government’s contention that the Supreme Court was not under a formal obligation by virtue of section 208(2) of the Criminal Procedures Act to summon the applicant to give testimony before overturning his acquittal. Indeed, the applicant does not claim that the Supreme Court acted contrary to domestic law. Moreover, the Court does not consider it decisive that the applicant did not request a rehearing, even assuming that such a possibility was open to him. Although he was aware that the prosecution was seeking his conviction by the Supreme Court, the Court recalls that if the direct assessment of evidence is deemed necessary, the appeal court is under a duty to take positive measures to that effect, notwithstanding the fact that the applicant did not ask for a rehearing (see paragraph 38 above).
41. The main point of dispute between the parties is whether the Supreme Court, in finding that the evidentiary value of the oral testimony was significantly diminished because of the way in which it had been taken by the District Court, reassessed that evidence. In that respect, the Court notes that under Icelandic law the Supreme Court was explicitly prevented from re-evaluating oral evidence without itself hearing it. Thus, in principle the conviction of the applicant was not based on a reassessment by the Supreme Court’s of the credibility of the oral evidence as such, in the sense of forming a perception of the veracity of statements, in particular on the basis of the demeanour of the person under examination; rather, the Supreme Court concluded that the evidentiary value of that evidence was “significantly diminished” on technical or procedural grounds, namely the manner in which the evidence had been taken, in particular by allowing the defendants to be present while co-accused were giving evidence.
42. It does not appear that the Supreme Court excluded the oral testimony entirely, as suggested by the applicant, but it nevertheless took a clear position on the reliability of that evidence – to which it made no further reference in its reasoning concerning the applicant – and thus of its evidentiary value in the overall assessment of the applicant’s guilt or innocence. To that extent, the Court does not discern any substantive distinction between the reliability and the credibility of the oral testimony in this context. The fact is that the Supreme Court at the very least disregarded to a considerable extent part of the evidence which had been taken into account by the District Court when it acquitted the applicant and based his conviction primarily, if not exclusively, on its own assessment of the contents of the telephone conversation between the applicant and B. While the Supreme Court was entitled under domestic law to re-evaluate the tangible evidence, its reliance on that evidence while wholly or largely discounting the explanations provided in the oral testimony inevitably meant that it “had to some extent to make its own assessment for the purposes of determining whether [the facts] provided a sufficient basis for convicting the applicant” ( Botten v. Norway, cited above, § 49). In the Court’s view, this cannot be regarded as an application of purely legal considerations to the established facts; on the contrary, it involved a fresh evaluation of the evidence as a whole, resulting in the conviction of the applicant on the basis of evidence which differed from that on which the District Court had relied in order to acquit the applicant (cf. Lacadena Calero v. Spain, no. 23002/07, §§ 39-51, 22 November 2011). It follows that, as a matter of fair trial and taking into account what was at stake for the applicant, the Supreme Court could not properly examine the issues to be determined on appeal without a direct assessment of the evidence given orally by the applicant, his co-accused and one of the witnesses, which was relied upon by the District Court in its overall probative assessment of the context in which the telephone conversation between the applicant and B. on 28 February 2011 took place. In the alternative, the Supreme Court had the option of quashing the District Court’s acquittal of the charges laid against the applicant and referring the case back for a retrial due to the deficient manner in which the Supreme Court considered that oral testimony had been taken at first instance.
43. Finally, the Court observes that a prison sentence, albeit suspended, was imposed on the applicant without the Supreme Court having been in a position to assess his character directly. In that respect, the Supreme Court’s position was similar to that of the Norwegian Supreme Court in Botten, namely it had full jurisdiction as regards sentencing, an aspect which was capable of raising issues going to matters such as personality and character, and it had not had the benefit of a prior assessment by the trial court which had heard the applicant (see Botten v. Norway, cited above, § 50, Sigurþór Arnarsson v. Iceland, cited above, § 35, and Zahirović v. Croatia, cited above, § 57).
44. In the light of the foregoing, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in the present case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”