CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 décembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 13291/87                         by Einar SVERRISSON                         against Iceland           The European Commission of Human Rights sitting in private on 4 December 1989, the following members being present:                   MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 7 September 1987 by Einar SVERRISSON against Iceland and registered on 9 October 1987 under file No. 13291/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant is an Icelandic citizen, born in 1914.   He is a farmer and resides at Kaldrananes, Iceland.   Before the Commission he is represented by his lawyer, Mr.   Eirikur Tómasson, Reykjavik, Iceland.           In July 1985 the applicant removed from his estate a fence which had been erected in 1954 in order to prevent sheep, cattle, etc. from straying.   The authorities of the district of Myrdalshreppur reported the incident to the local police claiming that the fence was their property.   A policeman, acting on the instructions of the county magistrate of Vestur Skaftafellssysla, Mr.   Einar Oddsson, carried out a preliminary investigation of the case.   The applicant maintained, however, that it was his lawful right to remove the fence from his own property.           Having examined the police file Mr.   Oddsson, acting as chief of police, sent the relevant documents of the case to the State Prosecutor of Iceland.   In return the State Prosecutor requested Mr.   Oddsson to investigate the case further, now in his capacity of investigating judge according to the provisions of the Code of Criminal Procedure No. 74 of 21 August 1974.   At the conclusion of this preliminary investigation Mr.   Oddsson returned the documents of the case to the State Prosecutor who then issued an indictment against the applicant charging him with destruction of public property contrary to the Icelandic Penal Code.           The case was brought before the District Criminal Court sitting with one judge, Mr.   Einar Oddsson, in his capacity of criminal court judge and he pronounced judgment in the case on 1 July 1986.   The applicant was found guilty of the charge brought against him and he received a suspended sentence with a two year period of probation following the pronouncement of the judgment.   The applicant was also ordered to pay the costs of the proceedings.           The applicant appealed against this judgment to the Supreme Court of Iceland claiming that the case be sent back to the District Criminal Court for a re-trial.   His claim was based on two points: first, that the investigation by the police and the district court judge had been incomplete and secondly that the case had not been heard by an impartial judge in the District Criminal Court.   With regard to the latter point the applicant argued in the oral hearing before the Supreme Court that the district criminal court judge should not have pronounced judgment in the case as he, under the Icelandic legal system, dealt with the case not only in his capacity as criminal court judge but also in his capacity as chief of police of the area.   The applicant maintained that this was in conflict with Sections 2 and 61 of the Icelandic Constitution and Article 6 of the European Convention on Human Rights.           In its judgment of 10 March 1987 the Supreme Court unanimously rejected the applicant's complaint as to the partiality of the district criminal court judge and stated as follows:   "Section 2 of the Icelandic Constitution ... has not been considered as interfering with the judicial organisation prescribed by law, according to which county and town magistrates serving as chiefs of police also serve as district court judges, notwithstanding that this is subject to exemptions cf.   Section 29 of Act No. 85 of 1936 in respect of District Court Procedure in Civil Cases, and Section 4 of the Code of Criminal Procedure ... .   Section 61 of the Constitution of 1944, ... also indicates directly that judges may perform administrative functions.   Article 6 of the European Convention on Human Rights and Fundamental Freedoms, cf. announcement No. 11 of 9 February 1954, has not been given the force of law in Iceland.   It does not therefore affect the organisation described above as provided by law.   Thus, as the judgment appealed against was passed by a district court judge in his rightful capacity under Icelandic law, it cannot be voided on these grounds, notwithstanding that reports obtained by a policeman in the judge's area of office have been submitted in court."           The majority of the Supreme Court furthermore found the applicant guilty of the charge brought against him and the judgment of the District Criminal Court was upheld.   The applicant was ordered to pay the costs of the appeal proceedings.     COMPLAINTS           The applicant submits that, according to the Supreme Court judgment, there seems to be no provision in Icelandic law to prevent the same person from first acting as chief of police and subsequently as judge in the same case.   He complains that in the criminal case brought against him the same official performed both these functions. Accordingly, the applicant maintains that he was not heard in the District Criminal Court by an impartial tribunal.   He invokes Article 6 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 7 September 1987 and registered on 9 October 1987.           On 14 April 1989 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits.           By letter of 28 July 1989 the Government submitted that they did not object to the case being declared admissible.   No observations have been received from the applicant other than those contained in his initial application.     THE LAW           The applicant complains of a breach of Article 6 para. 1 (Art. 6-1) of the Convention alleging that the criminal charge against him was not determined by an impartial tribunal.             The relevant part of Article 6 para. 1 (Art. 6-1) reads as follows:   "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."           The Commission has noted the contents of the Government's letter of 28 July 1989 and has made a preliminary examination of the applicant's complaint.   It has come to the conclusion that the case raises serious issues as to the application and interpretation of Article 6 (Art. 6) of the Convention, and that these issues can only be determined after an examination of the merits.               For these reasons, the Commission             DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case               Secretary to the Commission          President of the Commission              (H.C. KRÜGER)                        (C.A. NØRGAARD)