CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 octobre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5B12D80C { width:187.62pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     SECOND SECTION             CASE OF GESTUR JÓNSSON AND RAGNAR HALLDÓR HALL v.   ICELAND   (Applications nos. 68273/14 and 68271/14)             JUDGMENT     STRASBOURG   30 October 2018     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 22/12/2020       This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gestur Jónsson and Ragnar Halldór Hall v. Iceland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Julia Laffranque, President,   Robert Spano,   Işıl Karakaş,   Paul Lemmens,   Jon Fridrik Kjølbro,   Stéphanie Mourou-Vikström,   Ivana Jelić, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 2 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     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 (“the first applicant”) and Mr Ragnar Halldór Hall (“the second applicant”), on 16 October 2014. 2.     The applicants were represented by Mr Geir Gestsson, a lawyer practising in Reykjavík. The Icelandic Government (“the Government”) were represented by their Agent, Ms Ragnhildur Hjaltadóttir, Permanent Secretary of the Minister of the Interior. 3.     The applicants alleged that the District Court judgment of 12   December 2013 and the Supreme Court judgment of 28 May 2014 had violated their rights under Articles 6 and 7 of the Convention and Article   2 of Protocol No. 7 to the Convention. 4.     On 2 and 3 March 2016 respectively the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant was born in 1950 and lives in Reykjavík. The second applicant was born in 1948 and lives in Reykjavík. Both applicants are attorneys practising in Reykjavík. 6.     On 16 February 2012 Y and Z were indicted for participating in fraud and market manipulation along with two other individuals. On 7   March 2012, in accordance with Article 31 of the Criminal Procedures Act No.   88/2008 (hereinafter “the CPA”), the first applicant was appointed as Y’s defence counsel and the second applicant was appointed as Z’s defence counsel. 7.     On 7 March 2012, the indictment of the prosecution against, inter alios , Y and Z was registered before the District Court of Reykjavík. At a preliminary hearing they pleaded not guilty to the charges laid against them. From March to December 2012 the prosecutor and the applicants, along with the other defence counsel in the proceedings, repeatedly submitted arguments in further preliminary hearings about various issues, such as the evidence submitted by the prosecution, the deadline for the defence to file pleadings and the defence’s request to dismiss the case. The Supreme Court issued three rulings on procedural matters in the case. 8.     On 19 December 2012, after consulting the prosecution, the applicants and the other defence counsel, the District Court judge decided that the trial would take place from 11 to 23 April 2013. The same day, the second applicant replied to the judge’s email stating that, although it was reasonable to decide dates for the trial, he wanted to remind the judge that the case was not ready for trial at that time because the prosecution had not submitted the requested evidence and issued a witness list. Shortly afterwards the judge replied with “Merry Christmas!”. 9.     On 24 January and 7 March 2013 the prosecution submitted further evidence in the case. During the second of these preliminary hearings, the applicants and the other defence counsel requested more time to study the evidence and the postponement of the trial, inter alia , because the submission of evidence had not been concluded. By a decision of the same day the District Court rejected the request. 10.     In a preliminary hearing on 21 March 2013, the prosecution and one defence counsel submitted further evidence. The applicants and the other defence counsel requested that the prosecution provide them with certain documentary evidence. In a preliminary hearing on 25 March 2013 the applicants and the other defence counsel requested again that the trial be postponed for 6-8 weeks to allow them to study new evidence presented by the prosecution. By decisions of 26 March 2013, the District Court rejected both requests. By a decision of 4 April 2013, the Supreme Court dismissed the appeal. 11.     On 8 April 2013 each applicant wrote a letter to the District Court judge in the case, arguing that they could not, for reasons of conscience, continue to perform their duties as defence counsel for their clients. The applicants stated, inter alia , that they had not been informed about the deadline to submit their pleadings to the Supreme Court before its ruling of 4   April 2013, the prosecution had neglected to send them a copy of its pleadings, the defence had not had adequate access to important documents, the prosecution had tapped telephone conversations between them and their clients and the whole procedure had in general violated their applicants’ rights under the Constitution, the CPA and the Convention. Lastly, the applicants stated that their clients’ rights had been so grossly violated that they were forced to resign from further participation in the case. They noted that they had discussed this with their clients and made clear that the latter approved of their decision. The applicants requested that their appointment as defence counsel for their clients be revoked in accordance with Section   21 (6) of the Attorneys’ Act No. 77/1998. 12.     On the same day, the District Court judge replied to the applicants’ letters and rejected their requests. The judge referred to the CPA and the Attorneys’ Act. He reiterated that the trial would start on 11 April 2013 as previously decided. The applicants replied to the letter immediately, referred to their previous arguments and stated that they would not attend the trial on 11 April 2013. 13.     On 11 April 2013, Y and Z attended the trial accompanied by new defence counsel. The applicants did not attend the hearing and were not summoned to appear by the court. The presiding judge recorded the aforementioned communications between him and the applicants and declared that it was unavoidable to relieve the applicants of their duties as defence counsel. New defence counsel were appointed for Y and Z and the trial was postponed for an unspecified period. The prosecution requested that the applicants be fined for contempt of court under Section 223 of the CPA (see paragraph 32 below). 14.     Before this Court the applicants submitted that, according to news reports, the presiding judge had explicitly rejected the prosecution’s request, stating that the conditions to impose fines were not fulfilled at that time. However, the Government stated that the court records (which were not submitted to the Court) did not reflect that the presiding judge had taken a position on this point. In any event, the Government argued that the statement had not been a formal one, it had not been noted in the court records and there was great uncertainty as to whether it had been made and, if so, what had actually been said. 15.     A new trial was held before the District Court from 4 to 14   November 2013. In the meantime, the presiding judge had withdrawn from the case and a new judge had been appointed. 16.     By a judgment of 12 December 2013, Y and Z, along with the other two accused, were convicted. Furthermore, the applicants were each fined 1,000,000   Icelandic   krónur (ISK; approximately 6,200   euros (EUR) at the material time) under Section 223(1) (a) and (d) of the CPA for offending the court and causing unnecessary delay in the case by not attending the trial on 11   April 2013 and thereby damaging their clients’ and the other defendants’ interests. The judgment was delivered in the absence of the applicants. 17.     On 13 December 2013 the applicants appealed to the Supreme Court against the District Court judgment as regards the imposition of fines, by way of an appeal lodged by the prosecutor at their request. Before the Supreme Court, the applicants primarily requested that the District Court judgment be annulled as to the imposition of their fines and, as a subsidiary request, that the fines be reduced, were the Supreme Court to reject their request for annulment. 18.     In their submissions to the Supreme Court the applicants claimed firstly that they had been penalised without having been given the opportunity to defend themselves against the prosecution’s claims or being made aware of the court’s intention to impose fines on them. This had been a violation of their right to a fair trial under Article 6 §§ 1 to 3 of the Convention and Article 70 of the Constitution. Secondly, the applicants maintained that they had had valid reasons to resign from the case and that the legal conditions to fine them had not been fulfilled. 19.     As regards their first claim, the applicants argued that they had at no point been informed that the court was considering imposing fines on them and they had not been invited to defend themselves before the District Court, which was a fundamental part of the right to a fair trial. 20.     As regards the second complaint, the applicants argued, inter alia, that imposing fines on them as defence counsel had not been in accordance with the CPA as they had not been defence counsel at the time the District Court judgment was delivered. They argued that, according to Section   224 of the CPA, they should have been fined immediately as “others”. Furthermore, the applicants maintained that their conduct in question had not occurred during the proceedings as the CPA required. In any event, their behaviour could not be considered as offending the court since they had not attended any hearings with the judges who had imposed the fines and decided on the merits of the case. The applicants further stated that their actions had been in their clients’ interests, and their clients had approved of their decisions. 21.     The applicants submitted documentary evidence along with their submissions to the Supreme Court. They did not ask to examine witnesses or to give statements themselves before the court. 22.     The Supreme Court held an oral hearing in the case where the applicants were represented by legal counsel. No witnesses were heard and the applicants did not give statements before the court. 23.     The applicants were represented by two separate defence counsel before the Supreme Court. However, the applicants claimed before this Court that, due to the limited time given to present the case before the Supreme Court, each defence counsel put forth arguments on behalf of both applicants. 24.     According to the second applicant’s summary of the oral pleadings before the Supreme Court the applicants argued, inter alia , that a decision to impose court fines was an ex proprio motu decision of the court, without the parties’ involvement, and could therefore not be quashed and referred back to the first instance court. Furthermore, the applicants argued that referring the case back to the District Court for a new trial due to a violation of the CPA and Article 6 of the Convention could never be legitimate at this point as the time-limits for imposing fines on them had expired. According to Section   223 and 224 of the CPA the applicants could only be fined as “defence counsel” in a substantive judgment in the criminal case against their clients or as “others”, during the main trial in the criminal case against their clients. Additionally, the applicants argued that the amount of the fine was tenfold compared to fines imposed in previous cases and that no maximum amount for fines was stipulated in the CPA. Furthermore, the applicants referred to the principle of legality in criminal cases (Article   69 of the Constitution) and the principle of lex certa . 25.     By a judgment of 28 May 2014, a majority of the Supreme Court (three out of five judges) confirmed the District Court judgment as regards the fines imposed on the applicants. 26.     In its judgment the Supreme Court described the facts in detail. It referred to the obligation incumbent on attorneys under Article 20 of the Attorneys’ Act to accept the appointment or nomination as defence counsel in criminal proceedings if they fulfilled statutory requirements. Furthermore, the Supreme Court held that the applicants could not resign as defence counsel in a criminal case with reference to Section 21 (6) of the Attorneys’ Act as it only applied to civil cases. Their decision not to attend the trial in spite of the District Court rejecting their request to relieve them of their duties as defence counsel was not in accordance with the law or in the interest of their clients or the other defendants. Their statements about resigning from their positions as defence counsel had furthermore been a gross violation of their obligations as defence counsel under Section 34 (1) and 35 (1) of the CPA. The applicants had completely disregarded the legitimate decisions of the District Court judge, who had had no other option than to revoke their appointment as defence counsel and to appoint others to secure legal representation for the accused. 27.     The Supreme Court subsequently set out in detail the applicable legal provisions on the imposition of court fines, namely Sections   222 to   224 of the CPA, and noted that the provisions did not stipulate any maximum fine. The court considered, moreover, that the fines imposed on the applicants were substantial and therefore categorised them as criminal punishment. 28.     Furthermore, the judgment contained the following reasons: “As previously stated, the second sentence of Section 222 (1) of [the CPA] permits the prosecution to instigate proceedings for offences subject to fines pursuant to this chapter [Chapter XXXV]. According to general rules the defendants in question must then be provided with the opportunity to defend themselves. Such a case was not instigated. On the other hand it was, as previously stated, also possible for the judge in the criminal case, of his own accord, to impose fines in accordance with the first sentence of [Section 222 (1)]. Under those circumstances a special claim on behalf of the prosecution was not required. There are no grounds to hold that [the applicants] should have enjoyed lesser protection under the law, depending on which of the above-mentioned options were chosen when assessing whether they should be subject to the imposition of fines, which amounted to penalties, cf. Article 70 of the Icelandic Constitution and Article 6 (1) and (3) of [the Convention], cf. Act No. 62/1994. When it became clear that [the applicants] would not fulfil their duty of attending the trial and the court was considering imposing fines on them, they should have been summoned to a special hearing and given an opportunity to present their case and submit further arguments to that end, beyond what they had already clearly raised in their correspondence with the District Court. However, this was not done. Instead [the applicants] were relieved of their duties at the hearing on 11 April 2013 and a decision to impose fines on them was taken in the judgment delivered on 12 December 2013. As stated in Chapter V of the judgment the prosecutor lodged an appeal regarding this part of the case. That was done at the request of [the applicants] who, according to law, had the right to have the fines imposed on them by the District Court reviewed by a higher court following an oral hearing. [The applicants’] right to defend themselves on appeal is therefore not subject to any limitations by law and they were provided with the opportunity to raise any views in the oral hearing of the case, and as appropriate by giving statements themselves and presenting witnesses, cf. Article   205   (3) of [the CPA], or by instigating special witness proceedings, cf. Article 141 (1) of the same Act. In the light of this, the applicants’ rights have not been impaired due to the lack of an oral hearing by the District Court before the decision was taken to impose fines on them. Accordingly, the procedure which has taken place is in accordance with the law and does not violate their rights to a fair trial under Article   70   (1) of the Icelandic Constitution and Article 6 (1) and (3) of [the Convention], cf. Act No. 62/1994. For reference see the judgment of [the Court] in the case of Weber v. Switzerland from 22 May 1990 and the judgment in the case of T   v.   Austria from 14   November 2000. Accordingly, with reference to the reasoning of the appealed judgment, the decision on the fines imposed on [the applicants] must be upheld.” 29.     The minority shared the majority’s opinion that the applicants’ conduct in not attending the trial in the criminal case against their clients had not been in accordance with the law and had been a violation of their duty as defence counsel. The minority also agreed that their conduct had caused a delay in the proceedings and the imposed fines had constituted criminal punishment. 30.     However, the minority held as follows: “When it became clear that [the applicants] would not attend the hearing, a hearing should have been convened immediately, according to provisions of [Chapter XXXV of the CPA], and [the applicants] given notice of the charges and the opportunity to object to the decision to impose the fines. However, that was not done. Instead [the applicants] were relieved of their duties at the trial on 11 April 2013 and new defence counsel were appointed in their stead. However, the decision to impose fines on [the applicants] was made in the judgment of 12 December 2013, without notifying them, who were not defence counsel any more, of those intentions and without allowing them to defend themselves, both as regards the decision to impose the fines and the amount. In accordance with the aforementioned, the processing of the case before the District Court was flawed, but no legal provision allows this part of the criminal case to be referred back to the District Court to be heard again. Given these circumstances in the processing of the case, the appealed provision of the District Court’s judgment on the court fines should be annulled.” II.   RELEVANT DOMESTIC LAW 31.     The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands) read as follows: Article 69 “No one may be subjected to punishment unless found guilty of conduct that constituted a criminal offence according to the law at the time when it was committed, or is totally analogous to such conduct. The sanctions may not be more severe than the law permitted at the time of commission.” Article 70 “Everyone shall, for the determination of his rights and obligations or in the event of a criminal charge against him, be entitled, following a fair trial and within a reasonable time, to the resolution of an independent and impartial court of law. A hearing by a court of law shall take place in public, except if the judge decides otherwise as provided for by law in the interest of morals, public order, the security of the State or the interests of the parties. Everyone charged with criminal conduct shall be presumed innocent until proven guilty.” 32.     The relevant provisions of the Criminal Procedures Act No. 88/2008 ( Lög um meðferð sakamála ) read as follows: Section 31 “... Moreover, defence counsel for the defendant must be appointed if there is a main hearing in the case pursuant to Chapter XXV, unless the defendant has chosen defence counsel pursuant to Article 32 and does not wish to have counsel appointed, or if the defendant wishes to represent him/herself, cf. Article 29. The judge may appoint defence counsel for the defendant even if the defendant has not requested such, if the judge deems the defendant to be unable to safeguard his/her interests sufficiently during court proceedings. ...” Section 34 “If a defendant requests that the appointment or designation of defence counsel be withdrawn and new defence counsel be appointed or designated, said request shall be granted unless there is a risk of the case being delayed as a consequence. ...” Section 35 “The role of the defence counsel is to set forth any elements in the case that may be grounds for acquittal or to the advantage of the defendant, and to safeguard the interests of the defendant in all respects. ...” Section 140 “When data is collected before an Icelandic court, pursuant to the instructions in this Chapter, the provisions of Chapter II and Chapters XVIII-XX shall apply as appropriate. A judge presiding over data collection shall decide and rule on matters concerning such collection. If circumstances so warrant while data is being collected before another court, a party can request that more data be collected there than had originally been requested. The judge in question shall decide whether such a request is granted.” Section 141 “The provision of Section 140 shall be applied, as appropriate, when evidence is gathered before the District Court in connection with court proceedings before the Supreme Court. ...” Section 171 “... It makes no difference when statements, objections and evidence are presented during the process of the case.” Section 196 “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 court proceedings before the District Court. If a District Court judgment is appealed against for any of the reasons listed in the first paragraph of this Section, revision of the court’s conclusions regarding a claim pursuant to Chapter XXVI may also be sought, provided that it has been materially resolved and the defendant or claimant has requested a re-examination. If a District Court judgment is not appealed against pursuant to the above, the defendant and the claimant may both appeal against the court’s adjudication on the merits of the claim pursuant to the rules on appeals of judgments in civil proceedings.” Section 204 “The Supreme Court can pronounce a judgment dismissing a case from the court due to flaws in its presentation to the court without a hearing having previously taken place. Similarly, the Supreme Court may quash a District Court’s judgment if there are material flaws in the procedure before the District Court ... ...” Section 205 “... The Supreme Court can decide that oral presentation of evidence should be submitted as deemed necessary by the court if there is reason to believe, in the light of the circumstances, that said presentation of evidence could have an effect on the outcome of the case.” Section 208 “... The Supreme Court cannot re-evaluate a District Court’s conclusion on the evidentiary value of an oral testimony, unless the witnesses in question or the defendant have given oral statements before the Supreme Court. ...” Section 222 “The judge, of his/her own accord, shall determine fines in accordance with the rules laid down in this Chapter. Such fines shall be paid to the National Treasury. However, special proceedings may be initiated for offences subject to fines pursuant to this Chapter. If there is further punishment, pursuant to other laws, for offences subject to the provisions of this Chapter, claims to that effect can be made in a separate case, regardless of rulings on procedural fines.” Section 223 “The defendant, defence counsel or legal advisor may be fined for: a. intentionally causing undue delay of the case; b. violating a prohibition, cf. Section 11 (1) or (2); c. making indecent written or oral remarks before the court concerning the judge or other parties; d. otherwise violating the dignity of the court with their conduct during proceedings. The defendant or other parties testifying before the court may be fined for offences listed in items (b), (c) and (d) above. A fine may be imposed on parties other than those laid down in the first two paragraphs of this section for violating a prohibition under Article 11 (1) or (2), for disregarding a judge’s order to maintain order during a court session, or for otherwise behaving in a distasteful or indecent manner. If the judge deems that the provisions of the first three paragraphs of this Section have been violated but that the offence is a minor one, the judge may decide to admonish the violator instead of imposing a fine. The Supreme Court may impose a fine on the prosecutor, defence counsel or both for making a groundless appeal. Furthermore, the prosecutor, defence counsel or legal advisor may be fined for gross negligence or other misconduct during proceedings before the District Court or preparation or proceedings before the Supreme Court. The provisions of the first four paragraphs of this Section shall apply to proceedings before the Supreme Court as applicable.” Section 224 “Fines for the prosecutor, defendant, defence counsel or legal advisor shall be determined when a judgment in a case is rendered. If the case is concluded in another manner, fines against those parties shall be determined in a ruling. Fines imposed on other parties than those named in the first paragraph of this Section shall be determined in a ruling as soon as the offence occurs.” 33.     Section 21 (6) of the Attorneys’ Act No. 77/1998 ( Lög um lögmenn) reads: “... A lawyer can resign from an accepted task at any time, but has the duty of ensuring that this will not damage his client’s interest.” THE LAW I.     JOINDER OF THE APPLICATIONS 34.     Given the similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. II.   ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 35.     The applicants complained that the District Court of Reykjavík had tried and sentenced them in absentia. In their opinion there had been a breach of Article 6 §§ 1 to 3 of the Convention. The applicants further maintained that the Supreme Court did not and could not have remedied the procedural violations before the District Court. The relevant provision reads as follows: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3.     Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 36.     The Government contested that argument. A.     Admissibility 37.     The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further concludes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicants 38.     The applicants submitted that Article 6 of the Convention applied in the case. They stated that the Supreme Court had found that the fines imposed on them were criminal penalties for the purpose of Article 6 of the Convention. This was undisputed between the parties. In this respect the applicants referred to the case of T. v. Austria (no.   27783/95, ECHR   2000 ‑ XII) and Weber v. Switzerland (22   May 1990, Series   A no.   177) and stated that, unlike in these cases, no maximum amount for fines had been stipulated in Icelandic law. 39.     The applicants maintained that they were tried and punished in absentia before the District Court and that they had not enjoyed any rights under Article 6 of the Convention before being fined by the District Court’s judgment of 12 December 2013. Nevertheless, the Supreme Court confirmed the judgment and concluded that it had been enough for the applicants to enjoy these rights before the Supreme Court. 40.     The applicants argued that where court proceedings took place before two instances in a member State, it was obliged to provide the rights under Article 6 of the Convention at both instances. 41.     The applicants argued that appeal proceedings could not remedy a total lack of first instance proceedings in a criminal case, regardless of the court’s scope of review under domestic law. The applicants submitted that although, in principle, an appellate court could rectify a total lack of first instance proceedings, it could only rectify flaws at first instance by overturning the first instance court’s conviction or by referring the case back to the first instance for a new procedure. In support of this argument, the applicants referred, inter alia , to the case of De Cubber v.   Belgium (26   October 1984, §§   32-33, Series A no. 86). 42.     The applicants submitted that, according to Icelandic procedural and criminal law, proceedings before the Supreme Court had been more limited than proceedings before a District Court and that they had enjoyed fewer rights before the higher court. Consequently, the Supreme Court could not fully remedy the violations of their rights at first instance. 43.     The applicants also maintained that Article 6 § 2 of the Convention had been violated as the case against the applicants had commenced with a conviction by a court of first instance but no indictment against them. They further argued that guilt could not be proved unless evidence was submitted before the District Court, nor could it be proved before the Supreme Court without them being given the opportunity to hear witnesses and make statements before the court. 44.     As regards the violations of the rights stipulated in Article 6 §   1, taken in conjunction with Article 6 § 3 of the Convention, the applicants maintained that no indictment had been issued against them, which would have been a prerequisite for them to enjoy all the rights under Article 6 of the Convention. Furthermore, they had not been asked to attend the hearing when the judgment was pronounced or made aware of the judgment. 45.     Moreover, the applicants argued that they had not been afforded time or facilities to prepare their defence and they had not been offered the opportunity to defend themselves in person or through legal assistance before the District Court. Furthermore, the Supreme Court had not been able to remedy this fault by simply offering them the assistance of counsel before the Supreme Court. 46.     The applicants further claimed that they had not been invited to make statements or to examine witnesses before the Supreme Court. They argued that it had been for the Supreme Court to invite them to give statements and examine witnesses. In this respect the applicants referred to the cases of Sigurþór Arnarsson v. Iceland (no. 44671/98, §§ 35-38, 15   July 2003), Botten v. Norway (19 February 1996, §§ 52-54, Reports of Judgments and Decisions 1996 ‑ I), and Sadak and Others v. Turkey (no.   1) (nos.   29900/96 and 3 others, § 67, ECHR 2001 ‑ VIII). The applicants disagreed with the Supreme Court’s conclusion that they could or should have requested to do so themselves in accordance with Section 205 (3) of the CPA or by instigating witness proceedings before another district court in accordance with Section 141 (1) of the same Act. The applicants argued that, looking at the wording of the provisions, the Supreme Court’s approach in their case had not been in accordance with domestic law and legal practice and this had not been an effective or practical right. Additionally it would have been contrary to Article 6 § 2 of the Convention to oblige them to instigate special witness proceedings to prove their innocence. 47.     The applicants contested the Government’s arguments that there had been no disagreement as to the facts. Although the factual dispute between the parties had been limited, the Government could not assume that the applicants did not need to testify or examine witnesses. 48.     Furthermore, the applicants contested the Government’s argument that because they had not asked to examine witnesses or to give statements themselves they had waived those rights, as experienced attorneys. They should not enjoy lesser rights because they were practising attorneys. The waiver of those rights had to be established in an unequivocal manner and be attended by minimum safeguards commensurate with their importance. The applicants had not waived any of their rights either explicitly or implicitly. (b)     The Government 49.     The Government agreed with the applicants that the fines in question had constituted penalties and that the offences committed by the applicants should be considered “criminal” within the meaning of Article 6 of the Convention. This had also been acknowledged by the Supreme Court. The Government furthermore acknowledged that the applicants had been tried and convicted by the District Court in absentia . 50.     However, the Government maintained that the Supreme Court’s judgment of 28 May 2014, confirming the District Court judgment of 12   December 2013, had not violated the applicants’ right to a fair trial under Article   6 of the Convention. 51.     The Government noted that the Court had repeatedly found that the Contracting States enjoyed wide discretion as regards the choice of the means to ensure that their legal systems are in compliance with the requirements of Article 6 of the Convention. In the Government’s view the flaws in the District Court’s procedure did not by themselves constitute a violation if these defects were remedied on appeal. The requirement of fairness in Article 6 of the Convention had been interpreted to mean that it covered the proceedings as a whole, and as a result flaws at one level might be put right at a later stage. Article 6 of the Convention did not require an appeal court to order a retrial at first instance if new evidence were submitted on appeal and the right to retrial was not, as such, included among the rights and freedoms guaranteed by the Convention. In this respect the Government referred to the Commission decision in the case of Callaghan and others v. the United Kingdom (no. 14739/89, Commission decision of 9 May 1989, Decisions and Reports 60, p. 296). 52.     The Government argued that the Supreme Court had acknowledged that the District Court procedure had been flawed and not in accordance with the requirements of Article 6 of the Convention. However, the applicants’ access to the appeal procedure before the Supreme Court had not in any way been limited on the grounds that they had been absent from the District Court’s proceedings. They had been able to present their case before the Supreme Court in such a way that the procedure as a whole complied with Article 6 of the Convention. The process before the Supreme Court had sufficiently remedied the defects of the District Court proceedings. 53.     In the Government’s view the question before the Court was whether or not the Supreme Court had been capable of remedying the defects in the first instance proceedings. According to the CPA the Supreme Court’s scope of review had been very wide. A defendant could appeal against a judgment in order to obtain a revision of the District Court’s assessment of points of law and re-evaluation of evidence. The only limitation on the Supreme Court’s review had been that it could not re-evaluate the evidentiary value of oral statements made before the District Court. The Supreme Court could, if needed, examine witnesses and evaluate the evidentiary value of their statements. The Supreme Court’s scope of review had therefore not been a hindrance for the applicants to resort to all the same defences as they could have resorted to before the District Court. 54.     The Government submitted that the case of Sigurþór Arnarsson v.   Iceland (cited above) reflected that it does not constitute a categorical breach of Article 6 of the Convention if a procedure before an appeal court is somewhat more limited than the procedure at first instance and that this also applied in cases where the appeal court could review questions of fact. 55.     The Government stated that the applicants never presented any arguments to the Supreme Court which were beyond its scope of review. It seemed that there had not been any disagreement about the facts between the parties. The communications between the applicants and the District Court, which constituted the alleged offence, had been conducted by letter and email and therefore the applicants had not been in a worse position to maintain their arguments before the Supreme Court than if they had been given an opportunity to defend themselves before the District Court. Although the process before the Supreme Court was in general more limited than the procedure before the first instance, that in itself did not hinder or limit their defence abilities in the present case. 56.     The Government maintained that the CPA offered sufficient remedies to which the Supreme Court could have resorted had there been any differences between the applicants and the prosecution on the facts of the case, and it would have been necessary to have witnesses questioned or allow the applicants to give statements themselves. The Government referred to Section 205 (3) and Section 141 (1) of the CPA in this respect. Both provisions had been relied upon by appellants before the Supreme Court. The use of Section 141 (1) had not been subject to the Supreme Court’s authorisation, and although Section 205 (3) had only been relied upon once before the Supreme Court, the Government reiterated that the circumstances in the applicants’ case had been highly unusual. Furthermore, the Government maintained that the court could also have quashed the District Court judgment and referred the case back to the first instance according to Section 208 (3) of the CPA. However, it had not been necessary because of the way the applicants’ appeals were constructed and argued. 57.     The Government rejected the applicants’ claim that it was the Supreme Court’s obligation to invite them to examine witnesses or make statements themselves before the court. They were both experienced attorneys who were assisted by defence counsel before the Supreme Court and therefore there was no need to guide them in this regard. 58.     Lastly, the Government noted that in the speech before the Supreme Court the applicants had argued that the case could not be referred back to the District Court for new proceedings. This had shown that the applicants had not argued that it was necessary to refer the case back to a lower court. 2.     The Court’s assessment 59.     As to the application of Article 6 of the Convention in the present case, the Court notes that the applicants were each fined approximately EUR 6,200 under Section 223(1) (a) and (d) of the CPA for offending the court and causing unnecessary delay in the case by not attending the trial and thereby damaging their clients’ and the other defendants’ interests. In assessing whether or not there was a “criminal charge”, the Court uses three criteria, commonly known as the “Engel criteria”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin v Russia , [GC], no. 14939/03, §   53, ECHR   2009). The Court has in a number of cases reached the conclusion that fines for contempt of a court in the context of processing of cases before domestic courts did not amount a “criminal charge” (see, for example, Ravnsborg v. Sweden , 23 March 1994, §§ 30-36, Series A no.   283 ‑ B; Putz v   Austria , 22 February 1996, § 33, Reports 1996 ‑ I; Schreiber and Boetsch v.   France (dec.), no.   58751/00, ECHR 2003 ‑ XII; Toyaksi and Others v.   Turkey (dec.), no.   43569/08, 20 October 2010; Zugic v. Croatia , no. 3699/08, 31 May 2011, §§   63-71). The fact that a fine imposed is significant does not in itself imply that an offence can be qualified as a “criminal offence” (see Brown v.   the   United Kingdom (dec.), no. 38644/97, 24 November 1998). However, in a case where a short prison sentence was imposed for contempt of court, the Court has reached the conclusion that the offence amounted to a “criminal offence” (see Kyprianou v. Cyprus [GC], no. 73797/01, § 64, ECHR 2005 ‑ XIII; Zaicevs v. Latvia , no. 65022/01, §§ 31-36, 31 July 2007). Likewise, in a case where a substantial fine was imposed and the applicant risked imprisonment in default without a guarantee of a hearing, the Court also concluded that the offence amounted to a “criminal offence” (see T. v. Austria , cited above, §§   61-67). Turning to the present case, the Court notes that the Criminal Procedures Act sets out the rules on the imposition of fines and no maximum amount for court fines is stipulated in the Act. The Court also notes that the fines imposed were substantial. Furthermore, the Supreme Court concluded that the fine imposed on the applicants had amounted to a criminal penalty (see paragraph 27 above). This finding by the Supreme Court was not disputed between the parties, who agreed that the fines imposed amounted to a “criminal offence”. Therefore, and in particular having regard to the first Engel criterion, the legal classification of the offence under national law, the Court sees no reason to disagree with the Supreme Court. Accordingly, the applicants’ offence should be considered to have been based on a “criminal charge” within the meaning of the criminal limb of Article 6   §   1 of the Convention, which is therefore applicable in the present case. 60.     The Court observes that the guarantees set out in paragraph 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1 of the same provision. In these circumstances the Court finds it unnecessary to examine the relevance of paragraph 3 for the examination of the applicants’ complaint, since their allegations in any event amount to a claim before the Court that the proceedings were unfair (see Shkalla v. Albania , no. 26866/05, § 67, 10 May 2011). The Court considers that the same applies to the applicants’ complaint based on Article   6 § 2 of the Convention (see paragraphs 43 and 46 above) as it, in substance, is also directed at the lack of fairness encompassed by their conviction in absentia by the District Court and the subsequent alleged failure by the Supreme Court to remedy the procedural flaws at first instance. In the light of the foregoing the Court will confine its examination to whether the proceedings were, viewed as a whole, fair within the meaning of Article 6   §   1 of the Convention. 61.     The general principles as regards proceedings in absentia are set out in Sejdovic v. Italy [GC], no. 56581/00, §§ 81-95, ECHR 2006 ‑ II. 62.     The Court reiterates that, although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect to both law and facts, where it has not been established that he has waived his right to appear and to defend himself (see Sejdovic , cited above, §   82 and Hokkeling v. the Netherlands , no. 30749/12, § 58, 14   February 2017). 63.     The Court further reiterates its long-standing case-law to the effect that it is a fundamental principle that it is for the national authorities, notably the courts, to interpret and apply domestic law. Therefore, it is not for the Court to deal with alleged errors of law and fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Con