EHRM, 22-12-2020, nr. 68273/14, nr. 68271/14

The case originated in two applications (nos. 68273/14 and 68271/14) 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 two Icelandic nationals, Mr Gestur Jónsson and Mr Ragnar Halldór Hall (‘the applicants’), on 16 October 2014.

The applicants were represented by Mr Geir Gestsson, a lawyer practising in Reykjavik. The Icelandic Government (‘the Government’) were represented by their Agent, Ms Ragnhildur Hjaltadóttir, Permanent Secretary of the Minister of the Interior.

The applicants complained about having been tried in absentia for contempt of court by a first-instance court and alleged that the Supreme Court, acting as an appellate court, had not remedied the procedural violations deriving from it. They also complained of having been found guilty of an offence which did not constitute a criminal offence under national law and that the punishment imposed on them had not been foreseeable.

The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 2 and 3 March 2016 respectively the President of the First Section decided to give notice of the applicants' complaints to the Government. Subsequently, the applications were allocated to the Second Section of the Court. On 30 October 2018 a Chamber of that Section, composed of Julia Laffranque, Robert Spano, Işıl Karakaş, Paul Lemmens, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, Ivana Jelić, judges, and Stanley Naismith, Section Registrar, gave judgment. The Chamber unanimously joined the applications, found that there had been no violation of Articles 6 and 7 of the Convention and that the complaint raised by the applicants under Article 2 of Protocol No. 7 to the Convention was inadmissible.

On 25 January 2019 the applicants requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 6 May 2019 the panel of the Grand Chamber granted that request.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court.

The applicants and the Government each filed observations on the admissibility and merits of the case.

A hearing took place in public in the Human Rights Building, Strasbourg, on 9 October 2019.

There appeared before the Court:

The Court heard addresses by Mr G. Gestsson and Ms F.R. Þorsteinsdóttir and their replies to questions put by the judges.

The applicants were born in 1950 and 1948 respectively. They live in Reykjavik. Both applicants are lawyers practising in Reykjavik.

On 16 February 2012 Y and Z were indicted, along with two other individuals, for participating in fraud and market manipulation. On 7 March 2012, in accordance with Article 31 of the Criminal Procedure Act no. 88/2008 (hereinafter ‘the CPA’), the first and second applicants were respectively appointed as Y's and Z's defence counsel.

The background to the criminal procedure instituted against Y and Z, set out in the judgment Sigurður Einarsson and Others v. Iceland (no. 39757/15, §§ 7 et seq., 4 June 2019), was the acute 2008 global financial crisis which affected the Icelandic financial sector, resulting, among other consequences, in the collapse of Iceland's largest banks.

On 7 March 2012 the prosecution's bill of indictment against, inter alios, Y and Z was filed with the District Court of Reykjavik. At a preliminary hearing the defendants pleaded not guilty to the charges against them. From March to December 2012 the prosecutor and the applicants, together with the other defence counsel in the proceedings, repeatedly submitted arguments in further preliminary hearings with regard to 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.

On 19 December 2012, having consulted 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 second applicant replied to the judge's email on the same date, stating that, although it was reasonable to schedule dates for the trial, the case would not be ready for trial on those proposed dates because the prosecution had not submitted evidence requested from it or issued a witness list. Shortly afterwards the judge replied with the message ‘Merry Christmas!’.

At preliminary hearings on 24 January and 7 March 2013 the prosecution submitted further evidence. During the second of these hearings, the applicants and the other defence counsel requested more time to study the evidence and asked that the trial be postponed, on the grounds, inter alia, that the submission of evidence had not been completed. By a decision of the same date the District Court rejected the request.

At 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. At a preliminary hearing on 25 March 2013 the applicants and the other defence counsel again requested that the trial be postponed for 6–8 weeks, to allow them to study the 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 an appeal against these decisions.

On 8 April 2013 each applicant wrote a letter to the District Court judge in the case, arguing that, for reasons of conscience, they were unable to 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; that the prosecution had neglected to send them a copy of its pleadings; that the defence had not had adequate access to important documents; that the prosecution had tapped telephone conversations between them and their clients; and that in general the entire procedure had 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 obliged to withdraw from further participation in the case. They noted that they had discussed the matter with their clients and made it clear that the latter approved 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.

On the same date the District Court judge replied to the applicants' letters, refusing their requests. The judge referred to Article 34 of the CPA and to section 20(1) of the Attorneys' Act (see paragraphs 37–38 below), noting that the applicants had accepted their appointment and that this acceptance could not be withdrawn if there was a risk that the proceedings would be delayed in consequence, which was the case in the instant situation. The judge therefore decided that the trial would start on 11 April 2013 as previously decided on 19 December 2012. The applicants replied to this letter on the same date, referred to their previous arguments and stated that they would not attend the trial on 11 April 2013. It appears from the record of the hearing of 11 April 2013 that, in this last reply, the first applicant stated that he could not be forced to carry out his defence duties against his will and conscience and that therefore he reiterated his previous statement concerning his decision to cease serving as defence counsel for his client. The second applicant stated that he deemed the judge's refusal to release him from his duties to be unlawful and that he considered himself free from his defence duties in the case.

On 11 April 2013 Y and Z attended the scheduled hearing, accompanied by new defence counsel. It was ascertained that the applicants were not in attendance and the content of the applicants' first and second communications of 8 April 2013 was noted. According to the record, it was then clear to the court that the only option was to release the defence lawyers from their duties, despite the presiding judge's refusal to allow them to withdraw. New defence counsel were then appointed for Y and Z and the trial was postponed for an unspecified period. The prosecutor noted that it was clear that the applicants' sole purpose in resigning from the case had been to delay the proceedings and expressed the opinion that, through this conduct, the defence was in breach of their statutory duties. He therefore requested that the applicants be fined for contempt of court.

In their appeal before the Supreme Court, as well as before this Court, the applicants submitted that, according to news reports, the presiding judge at this stage explicitly rejected the State Prosecutor's request, stating that the conditions for imposing fines were not met. However, the Government stated that the court record did not indicate whether the presiding judge had taken a position on this point.

A 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.

By a judgment of 12 December 2013, Y and Z, along with the other two accused, were convicted. The fees awarded to the defence counsel of all the accused amounted to 88,831,252 Icelandic krónur (ISK; approximately 559,000 euros [EUR] at the relevant time). In particular, ISK 10,855,750 (approximately EUR 68,300) were awarded to the first applicant. He was also awarded ISK 90,202 (approximately EUR 570) for the expenses incurred jointly with the second defence counsel. The District Court awarded the second defence counsel ISK 5,898,500 (approximately EUR 37,000) for his fees.

Furthermore, without having heard the applicants, the District Court imposed a fine of ISK 1,000,000 (approximately EUR 6,200) on each of them under section 223(1) (a) of the CPA, for intentionally causing undue delay in the case, and (d), for being in contempt of court through their conduct. The District Court stated that it found it unavoidable to impose these fines on the applicants for the following reasons. It noted, in particular, that the applicants had been granted ample time to prepare the accused's' defence in a satisfactory manner in the period before the date of the scheduled main hearing, namely 11 April 2013, although further submissions were made in the intervening period. The applicants' decision not to attend the trial on 11 April 2013 had caused unnecessary delay in the case and thus damaged the interests of their clients and the other defendants. In addition, given that the judge had denied their request to be released from their defence duties, the defence lawyers' conduct in failing to appear at the main hearing was such as to constitute contempt of court.

On 13 December 2013 the applicants appealed to the Supreme Court as regards the imposition of fines, by way of an appeal lodged by the State Prosecutor at their request. Before the Supreme Court, the applicants primarily requested that the District Court judgment be annulled with regard to the imposition of the fines and, as a subsidiary request, were the Supreme Court to reject the request for annulment, that the fines be reduced.

In their submissions to the Supreme Court the applicants claimed, firstly, that they had been penalised without having been given an opportunity to defend themselves against the prosecution's claims or made aware of the court's intention to fine 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 for resigning from the case and that the legal conditions for fining them had not been met.

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.

Concerning the second complaint, the applicants argued, inter alia, that imposing fines on them as defence counsel had not been in accordance with the CPA, in that they had no longer been defence counsel when the District Court judgment was delivered. They argued that, under section 224 of the CPA, they should have been fined immediately as ‘others’. Furthermore, the applicants maintained that the conduct they were criticised for had not occurred during the proceedings, as required by the CPA. In any event, their behaviour could not be considered as contempt of court, given that they had not attended any hearings with the judges who 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 their decisions.

The applicants submitted documentary evidence with their submissions to the Supreme Court, including emails and written correspondence between the applicants (and other defence counsel) and the prosecution and the District Court, a letter from the first applicant and another defence counsel to the State Prosecutor concerning access to documents in the main proceedings and the latter's reply, and a news article entitled ‘Mistake to reject a request of extension’ which claimed that the State Prosecutor's proposal to fine the applicants had been rejected by the judge at the hearing of 11 April 2013. They did not ask to examine witnesses or to give statements in person before the Supreme Court.

In his brief of 26 March 2014, the State Prosecutor endorsed the District Court's decision to fine the applicants and underlined that, under section 34 of the CPA, a defence counsel's request to withdraw from a case was to be granted unless there was a risk that the case would be delayed as a consequence, which was the situation in the applicants' case. Moreover, the fact of simply failing to show up at the hearing, notwithstanding the judge's denial of the applicants' request to withdraw and thus snubbing him, clearly involved contempt of court. The State Prosecutor also observed that the applicants had been acting as defence counsel for their clients since the investigation stage of the main proceedings in 2009. The indictment in this case was issued on 16 February 2012 and the case was then filed with the court on 7 March 2012. Fourteen court hearings had taken place by the time the applicants submitted their resignation letter of 8 April 2013, more than one year after the case had been filed. In these circumstances, the State Prosecutor agreed with the District Court that the applicants had had ample opportunity to prepare the defence adequately, despite the fact that, in the interim, further evidence had been presented.

The Supreme Court held an oral hearing. No witnesses were heard and the applicants did not give statements before the court.

The applicants were represented by two separate defence counsel before the Supreme Court. However, the applicants claimed before this Court that, in view of the limited time available to present the appeal before the Supreme Court, each defence counsel had given arguments on behalf of both applicants.

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 relevant court, without the parties' involvement, and could therefore not be quashed and referred back to the first-instance court. Referring the case back to the District Court for a new trial on the grounds of a violation of the CPA and of Article 6 of the Convention could never be legitimate at this stage, as the time-limits for imposing fines had expired. Furthermore, under sections 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. Lastly, the applicants argued that the amount of the fine was ten times higher than the 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 law (Article 69 of the Constitution) and to the principle of lex certa.

By a judgment of 28 May 2014, by a majority of three to two, the Supreme Court confirmed the District Court judgment as regards the fines imposed on the applicants.

In its judgment the Supreme Court described the facts in detail. It referred to the obligation incumbent on lawyers under section 20 of the Attorneys' Act to accept an appointment or nomination as defence counsel in criminal proceedings if they fulfilled the statutory requirements. Furthermore, the Supreme Court held that the applicants could not withdraw as defence counsel in a criminal case by referring to section 21(6) of the Attorneys' Act, since that provision applied only to civil cases. Their decision not to attend the trial in spite of the District Court having refused their request to be relieved of their duties as defence counsel had not been in accordance with the law or in the interest of their clients or the other defendants. Furthermore, their statements in resigning from their positions as defence counsel had 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 legitimate decisions taken by 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.

Furthermore, the judgment contained the following reasons:

The minority shared the majority's opinion that the applicants' conduct in failing to attend the trial in the criminal case against their clients had not been in accordance with the law and had been a breach of their duty as defence counsel. The minority also agreed that their conduct had caused a delay in the proceedings and that the imposed fines had constituted criminal punishment. However, the minority further held as follows:

Holds, by a majority, that the application is incompatible ratione materiae with the provisions of the Convention and accordingly declares it inadmissible.

Done in English, and notified in writing on 22 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. {signature_p_2}

Søren Prebensen Ksenija Turković

Deputy to the Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

K.T.U.

S.C.P.

In his concurring opinion in Dickson v. the United Kingdom ([GC], no. 44362/04, 4 December 2007, ECHR 2007-V), Judge Bratza opined that ‘[an] unsatisfactory feature of Protocol No. 11 to the Convention, which ushered in the permanent Court in Strasbourg, is that a national judge who has already been party to a judgment of a Chamber in a case brought against his or her State is not only entitled but, in practice, required to sit and vote again if the case is referred to the Grand Chamber’. Previously, in his partly dissenting opinion in Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005-XIII), Judge Costa described the position of the national judge in such circumstances as ‘disconcerting’, the judge having to decide whether to adhere to his or her initial opinion on the case or ‘with the benefit of hindsight [to] depart from or even overturn [that] opinion’.

Where a case has already been fully argued and discussed at Chamber level and no new information or arguments have been advanced before the Grand Chamber, national judges have, unsurprisingly, normally adhered to their previous opinion, as Judge Bratza pointed out in Dickson (cited above), although not necessarily to the precise reasoning which led to that opinion in the Chamber. When a case is referred to the Grand Chamber, and arguments on a legal question are presented for the first time, it is more readily incumbent on the national judge to examine the issue afresh in the light of the Parties' arguments before the Grand Chamber.

In the present case, the question whether the criminal limb of Article 6 § 1 of the Convention is applicable to the applicants' complaints was not disputed before the Chamber, the Government not adducing any arguments against the position of the applicants on this matter (see paragraph 73 of the present Grand Chamber judgment). Although considering the issue borderline, I therefore agreed, on balance, with the Chamber's finding that the criminal limb of this provision was applicable, having regard to the reasoning of the Icelandic Supreme Court and the Parties' position on the matter. However, before the Grand Chamber, the Government now explicitly object to the position that the criminal limb of Article 6 § 1 is applicable and the issue has been fully argued by both Parties. It must be made clear that the Government is not estopped from objecting to the admissibility of the applicants' complaints on this ground for the first time in the Grand Chamber, as it goes to the Court's jurisdiction ratione materiae (differently from a claim for non-exhaustion of domestic remedies under Rule 55 of the Rules of Court; see paragraph 98 of the judgment).

Having now had the benefit of full argumentation and pleadings by the Parties before the Grand Chamber, I have come to the conclusion that there are stronger legal arguments in favour of the contrary conclusion. I therefore concur in the Court's finding to dismiss the applicants' complaints ratione materiae, both under Articles 6 § 1 and 7, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

I agree with the dissenting judges that, had the Grand Chamber found that the Engel criteria had been met, the two questions related to Article 7 of the Convention would be of real interest in the present case. First, whether a provision which defines an offence and a type of punishment but omits to set a maximum penalty is compliant with the requirement for lex certa under Article 7 of the Convention. Second, whether the punishment actually imposed in the present case, based on such a provision, was foreseeable. The Court has not so far had an opportunity to deal with these questions. Since the Chamber addressed this important matter only briefly, in just one paragraph, without any deeper analyses (see Gestur Jónsson and Ragnar Halldór Hall v. Iceland, nos. 68271/14 and 68273/14, § 94, 30 October 2018), and Grand Chamber did not have an opportunity to deal with it, I should like merely to flag the principles that, in my opinion, should guide the Court in deciding these complicated issues.

Both of these principles, nullum crimen sine lege, which addresses the punishability of the conduct in question, and nulla poena sine lege, which deals with the legality of the actual punishment or penalty itself, are at the core of the principle of legality and both rely on the same requirements: nullum crimen, nulla poena sine lege certa, stricta, and praevia (see Del Río Prada v. Spain [GC], no. 42750/09, § 91, ECHR 2013). However, there are some distinctions between the two which might be of importance when these requirements are interpreted, and for this reason direct, uncritical transposition of the general principles developed in the Court's case-law concerning nullum crimen to nulla poena might not always be warranted. While it is perfectly sound to accept that provisions defining criminal offences, however clearly defined, would inevitably require judicial interpretation and elucidation of doubtful points and gradual clarification consistent with the essence of the offence, and thus that in defining crimes only the maximum possible clarity could be required (see Vasiliauskas v. Lithuania, [GC], no. 35343/05, § 155, ECHR 2015, with further references), the same is not true with regard to determination of the maximum sentence. Here, greater clarity and precision are both possible and achievable; in fact, the maximum penalty can be laid down in law with absolute clarity.1. The query is whether failure to do so is compliant with Article 7 of the Convention.

Indeed, in most legal systems lex certa is interpreted as requiring both the law authorising the type of punishment a judge may impose on a convicted person (e.g. imprisonment, fines, community service) and the maximum severity of the sentence applicable to different crimes (degree of punishment) to be specific, definite, and clear, that is, certain and unambiguous. It also requires that the law of penalties distinguish between different forms of participation in criminal conduct, such as commission, attempted commission, or aiding and abetting, and the different degrees of criminal responsibility, such as intent, recklessness, or negligence with which an offence is committed, as well as whether the crime is completed or inchoate. The majority of States, regardless of whether they belong to the common or civil legal system, follow this approach in their domestic legal systems. This approach as a rule includes the practice of articulating a specific maximum penalty for each criminal offence.2.

Under the principle of legality, there are four central functions to a maximum penalty. First, to restrict judicial discretion in sentencing a person who has committed an offence and to set clear limits on the action that the State may lawfully take against an offender in punishing or rehabilitating a convicted person. Second, to provide fair notice to potential offenders by indicating the highest punishment they will face if they commit a particular offence. Both of these aspects flow from the rule-of-law principle, whose central tenant is transparency and predictability or, in the language of the Court, foreseeability (see Žaja v. Croatia, no. 37462/09, § 93, 4 October 2016). Third, to indicate the relative seriousness of the offence compared with other criminal offences, that is, to rank offences according to their degree of gravity. Fourth, to provide adequate ‘space’ when sentencing the worst examples of the offence. The last two aspects flow from the principle of proportionality or just punishment (just deserts) which requires that the punishment fit the crime, restraint on excessive punishment, and punishment of equal severity for equally blameworthy conduct. The key focus in setting the level of maximum punishment should be the relative gravity of each offence compared with other offences, measured by the harm caused or risked by the offending conduct, and the culpability of the offender in committing the crime. The development of a consistent framework of maximum penalties for all offences in a particular legal system, which ultimately guarantees the equality of all before the law, is an inherently difficult task that can hardly be accomplished through incremental development by courts deciding individual cases.

In order to equip judges to determine proportionality in individual cases adequately, the boundaries within which they may act, in particular the maximum penalty, should be clearly and unambiguously set down in advance. The maximum penalty provides a legislative guide to judges as to the relative seriousness of an offence, without transgressing the separation of powers by entering the domain of the administration of justice, which in criminal matters is the exclusive preserve of the courts. The legislature merely states the general rule and the application of that rule lies with the courts. The judge is free to exercise sentencing discretion, in choosing the nature and degree of the sentence within the range provided for by the statutory maximum and minimum sentences. The maximum penalty is only one of the sentencing factors the judge must take into consideration when individualising the sentence in a particular case. Other factors include current sentencing practices (the actual sentences given for past examples of the offence), the nature and gravity of the offence, the offender's level of responsibility and moral culpability for the offence, the offender's previous character, and any aggravating or mitigating circumstances. However, these other factors could hardly be applied adequately if the range within which judges have the freedom to apply them is not clearly and precisely determined in advance. Furthermore, only with a clearly defined maximum penalty can the authorities comply with the requirements of lex praevia, prohibiting retroactive application of the more stringent law and determining which provision was the more lenient one (see Del Río Prada, cited above, §§ 112 and 114).

In short, requiring absolute clarity by laying down the maximum penalty in advance protects the rights of the defendants and their interest in legal certainty, and achieves justice, equal treatment, and consistency in sentencing. Moreover, determining clearly and precisely the maximum penalty in advance and, more generally, applying nulla poena sine lege not only limits unwarranted judicial discretion, but actually safeguards judicial independence and thus its authority, as well as the integrity of criminal justice, by preventing current events, immediate public opinion, prejudice or real or perceived political pressure from influencing the sentence. In the long run, coherent sentencing policy and consistency in sentencing preserve confidence in criminal prosecution and uphold the justice system in the eyes of the public.

With regret, we cannot agree with the majority's finding that Article 6 of the Convention under its criminal limb is inapplicable in the present case.

. The Chamber judgment. The Chamber based its judgment on the applicability of the criminal limb of Article 6 and ultimately found that the said provision had not been violated. It noted that no maximum amount for court fines was provided for in domestic law and that the amount in the case at hand had been substantial. The Chamber also attached weight to the Icelandic Supreme Court's finding that the fines imposed on the applicants had amounted to a criminal penalty and that this circumstance had not been disputed between the parties. Having regard in particular to the first Engel criterion, i.e. the legal classification of the offence under national law, the Chamber found no reason to disagree with the Supreme Court on this issue.

While it is true that the applicability of Article 6 had not been challenged by the Icelandic Government, the Chamber could have examined the question of its own motion, as this was a question of applicability ratione materiae of the Convention.1.

The majority's findings. In their memorial to the Grand Chamber, the Government, with reference to the Engel criteria, argued that Article 6 was inapplicable under its criminal limb and that none of the three criteria were met.

The majority has now endorsed the Government's position as to its substance, finding that, although the application of the first two Engel criteria (classification under domestic law; nature of the offence) was inconclusive, the third (severity of the sanction) was definitely not met.

A different story can be told. It is true that such reasoning has its merits and can be followed. However, in the present case, where there is no absolute truth, a totally different story could likewise have been convincingly told. The application of the Engel criteria is not an exact science; much depends on where the emphasis is placed.

The following paragraphs are aimed at showing that a reasonable application of the Engel criteria, without overstretching their meaning, could also — and should have — led to the conclusion that the fines imposed on the applicants were of a criminal nature and that Article 6 was applicable.

The first Engel criterion. The judgment underlines that ‘the Convention without any doubt allows States … to maintain or establish a distinction between criminal and disciplinary law, and to draw a dividing line’ and ‘leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects’ (see § 76 of the judgment). It stresses that ‘such a choice in principle escapes supervision by the Court’ (ibid.) whereas the converse, i.e. the classification of an offence as disciplinary is obviously subject to stricter rules because otherwise the fundamental clauses of Articles 6 and 7 would be subordinated to the States' sovereign will, which would be incompatible with the purpose and object of the Convention. The Court wants to ensure that the ‘criminal’ is ‘not improperly encroached upon’. The judgment even underlines that ‘nothing prevents the Contracting States from adopting a broader interpretation entailing a stronger protection of the rights and freedoms in question within their respective domestic legal systems (Article 53 of the Convention)’ (see § 93 of the judgment).

The philosophy behind the Court's approach thus seems clear: no interference if a domestic system qualifies an offence as criminal, stricter scrutiny if it qualifies it as disciplinary. This makes perfect sense, as in order to ensure that the protection of Article 6 remains effective, in doubtful situations the balance should lean towards the applicability of the said provision.2.

It is then surprising, to say the least, given that Icelandic law as authoritatively interpreted by the Icelandic Supreme Court qualified the offence at stake as criminal, to read in the subsequent developments that the Court ‘will enquire whether the provision(s) defining the offence charged belong, under the legal system of the respondent State, to criminal law’ (see § 77 of the judgment). At a later stage, the judgment returns to this issue and repeats that, in view of the considerations set out in paragraph 77, ‘when it comes to interpreting the scope of the concept of ‘crime’ in the autonomous sense of Article 6 of the Convention … the Court will have to appraise the matter for itself.’

Until now the Court has called into question the classification of an offence only when the latter was qualified as non-criminal under domestic law. It is disconcerting to note that in the present case it engages in the opposite exercise. What is being called into question in this case is the domestic law's qualification of an offence as criminal, authoritatively interpreted as such by the highest judicial body of the country concerned.

The Court's case-law as relied on by the majority relates, without exception, to situations where the criminal nature of a penalty imposed on an applicant was disputed by the national government. Even more strikingly, in all of the judgments cited in support of the statement that the first of the Engel criteria is of relative weight and serves only as a starting-point (see § 85 of the judgment) Article 6 was ultimately found to be applicable. The ‘relative weight’ attached to domestic law consequently led the Court to disregard the national law that qualified a sanction as not being criminal. In the present case, the situation is just the reverse.

It is inopportune — and even contrary to Article 53 of the Convention — to ultimately grant lower protection in respect of the fairness of proceedings than the domestic authorities were prepared to do.

The second Engel criterion. As to the very nature of the offence, the applicants were fined for contempt of court. In the part of the judgment dealing with general principles, reference is made to various findings in Court's case-law to the effect that the second criterion had not been fulfilled because the offence was not punished by the Criminal Code but by other laws, such as the Code of Criminal Procedure, or because the offence was disciplinary in nature, falling within the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings (see § 81 of the judgment). Referring to the applicable domestic law, the majority, while acknowledging that the law on contempt of court ‘could be viewed as encompassing members of the whole population when participating in court proceedings’ (see § 86 of the judgment), noted however that the fine imposed on the applicants was on account of a provision which addressed a ‘specific category of people possessing a particular status, namely that of a ‘State Prosecutor, defence counsel or legal advisor’’. It underlined that lawyers occupy a central position in court proceedings and that the public must have confidence in the ability of the legal profession to provide effective representation. It added that contempt-of-court rules and sanctions form the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings and that measures ordered under such rules ‘are more akin to the exercise of disciplinary powers than to the imposition of a punishment for commission of a criminal offence’ (see §§ 86-89 of the judgment).

However, the majority adds an important qualification which brings the whole problem back to the first criterion, stating that ‘it is, of course, open to States to bring what are considered more serious examples of disorderly conduct within the sphere of criminal law’ (see § 89 in fine of the judgment). This should or at least could have lead the majority to simply endorse the Supreme Court's findings that the applicants' behaviour was of a criminal nature, as it acknowledges that the said court considered that it ‘entailed a severe violation of their professional duties’ (see § 90 of the judgment).

The conclusion under the second criterion is however inconclusive: stating very ambiguously that ‘the Supreme Court did not specifically refer to the nature of the applicants’ misconduct as a reason for considering it to be criminal' (see § 90 of the judgment), the judgment concludes that ‘despite the seriousness of the breach of the professional duties in question, it is not clear whether the applicants’ offence is to be considered criminal or disciplinary in nature' (see § 91 of the judgment).

After having underlined that it is open to States to bring what are considered more serious examples of disorderly conduct within the sphere of criminal law and that the behaviour of the applicants constituted a serious violation of their professional duties, it would have been much easier and straightforward to conclude, together with the Supreme Court, that the offence for which the applicants had been punished was criminal in nature.

The third criterion. As to the seriousness of the punishment, the majority refers to a series of elements taken from the Court's case-law, such as the possibility to incur imprisonment, to have the fine converted into deprivation of liberty or the inclusion of the fine in one's criminal record, none of these elements being present in the case before us. On the other hand, they acknowledge that the fine imposed — approximately EUR 6,200 — was high and that there was no statutory upper limit but they consider that this does not suffice ‘to deem the severity and nature of the sanction as ‘criminal’ in the autonomous sense of Article 6’ (see § 96 of the judgment).

Unfortunately, the reasoning under the third criterion is no more convincing than that under the first two. Regard should have been had — once more — to the Supreme Court's reasoning in holding that the fine was ‘high’ and emphasising that no explicit ceiling was provided for by law. It can be seen from the Icelandic case-law, as referred to in paragraphs 45 et seq. of the judgment, that the fine imposed on the applicants was ten times higher than any fine imposed previously. The fine was consequently high not only in absolute, but also and even more pertinently in relative terms. Such a fine clearly had a deterrent and, moreover, a specifically punitive character.

Furthermore, it is important to repeat that in deciding whether a sentence comes within the ‘criminal’ sphere, is not only the actual amount of the fine imposed that has to be taken into consideration, but the absence of a ceiling provided for by domestic law. The majority acknowledges this in paragraph 82 of the judgment.3. In the present case, there was no such ceiling.

The Grand Chamber should therefore have reached the conclusion that Article 6 under its criminal limb was applicable, and could have done so easily.

The consequences of the inapplicability of Article 6. One should never forget what it means not to fall under the umbrella of Article 6: nothing other than being deprived of the guarantees of fair proceedings. This can be seen in particular, in the field of disciplinary proceedings, but not only there. Huge interests can be at stake, and such proceedings can lead to extremely heavy sanctions. People can lose their jobs4., be subject to salary cuts or promotion bans5. or even to arrest6.. The prospect of not enjoying the guarantees of fair proceedings (adversarial, before independent and impartial judges, etc.) is not a very attractive one…

A missed opportunity. By holding that Article 6 is inapplicable, the Grand Chamber avoided addressing the real issue of interest in this case, namely the question of compliance with the requirements of Article 7 of the Convention, and more specifically the legality of the penalty imposed on the applicants in the absence of an explicit statutory ceiling.