CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 juin 2019

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vertical-align:super } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }       SECOND SECTION             CASE OF SIGURĐUR EINARSSON AND OTHERS v. ICELAND   (Application no. 39757/15)                     JUDGMENT         STRASBOURG   4 June 2019     FINAL   04/09/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sigurður Einarsson and Others v. Iceland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Julia Laffranque,   Valeriu Griţco,   Stéphanie Mourou-Vikström,   Arnfinn Bårdsen,   Darian Pavli, judges,   Ragnhildur Helgadóttir, ad hoc judge, and Stanley Naismith, Section Registrar, Having deliberated in private on 30 April 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 39757/15) 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 four Icelandic nationals, Mr Sigurður Einarsson, Mr   Hreiðar Már Sigurðsson, Mr Ólafur Ólafsson and Mr   Magnús   Guðmundsson (“the applicants”), on 10 August 2015. 2.     The applicants were represented by Mr E. Werlauff, a lawyer practising in Herning, Denmark. The Icelandic Government (“the Government”) were represented by their Agent, Mrs Ragnhildur Hjaltadóttir. 3.     The applicants alleged, in particular, that in the criminal proceedings against them they had been denied full access to the file held by the prosecution, that insufficient efforts had been made to summon two key witnesses and that the Supreme Court had not been impartial on account of the positions held by family members of one of its judges. They relied on Article 6 §§ 1 and 3(b) and (d) of the Convention in that respect. In addition, the applicants complained that conversations with their defence lawyers had been intercepted and recorded in breach of domestic law. They relied on Article 8 of the Convention in that respect. 4.     On 15   June 2016 notice of the above-mentioned complaints was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. 5.     Mr Robert Spano, the judge elected in respect of Iceland, withdrew from the case (Rule 28 of the Rules of Court). Accordingly, Ms   Ragnhildur   Helgadóttir was appointed to sit as an ad hoc judge (Article   26 § 4 of the Convention and Rule 29 § 1). THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicant Sigurður Einarsson was born in 1960 and lives in Reykjavík. The applicant Hreiðar Már Sigurðsson was born in 1970 and lives in Luxembourg. The applicant Ólafur Ólafsson was born in 1957 and lives in Pully, Switzerland. The applicant Magnús Guðmundsson was born in 1970 and lives in Luxembourg. Background to the case 7.     In the autumn of 2008 a crisis hit the Icelandic financial sector resulting, among other things, in the collapse of one of Iceland’s largest banks, Kaupþing banki hf. (hereafter “Kaupþing”). On 9 October 2008 the Financial Supervisory Authority (hereafter “the FME”) exercised its authority to take over the powers invested in a shareholders’ meeting and to take over the management of Kaupþing immediately, dismissing the Board of Directors and appointing a Resolution Committee to direct the bank. In December 2008 the Office of the Special Prosecutor was established to investigate potential criminal conduct in connection with the financial crisis and, where appropriate, to prosecute those concerned. The Special Prosecutor had police authority to investigate criminal cases as well as prosecutorial authority. The criminal proceedings against the applicants 8.     At the relevant time, the applicants held the following positions: Sigurður Einarsson was Chairman of the Board of Kaupþing and Chairman of the Board Credit Committee; Hreiðar Már Sigurðsson was Chief Executive Officer of Kaupþing and a member of the Board Credit Committee; Ólafur Ólafsson was majority owner of a company which indirectly owned another company which was at the time the second largest shareholder in Kaupþing, with 9.88% of its shares; Magnús Guðmundsson was Chief Executive Officer of Kaupþing’s subsidiary, Kaupþing Bank Luxembourg S.A. (hereafter “KBL”). 9.     On 22 September 2008 Kaupþing issued a press release stating that Q, a company owned indirectly by Sheik Mohammed bin Khalifa Al Thani (hereafter “Al Thani”), a member of Qatar’s royal family and a wealthy businessman, had bought 5.01% of the share capital of Kaupþing for 25,599,000,000 Iceland krónur (ISK). An investigation revealed that Kaupþing had provided a loan for the entire purchase price of the shares, which the bank itself had owned prior to their sale: two companies in the British Virgin Islands, ST and GA, the former of which was owned by Al   Thani and the latter by the applicant Ólafur Ólafsson, had each obtained a loan from Kaupþing amounting to half the purchase price, which they had then lent to a Cypriot company, CS, itself owned by the two said companies. CS had then provided a loan to Q for the purchase price. The loan transactions and the payment for the shares had all been made on 29   September 2008. Shortly before, Kaupþing had also provided BT, another company owned indirectly by Al Thani, with a loan in the amount of 50,000,000 US dollars (USD), which had been disbursed on 19   September into BT’s account with Kaupþing’s subsidiary, KBL. Neither the loan to GA nor the loan to BT had had the necessarily approval of Kaupþing’s Board Credit Committee, and no or insufficient securities had been provided for them. 10.     On 9 December 2008 the FME was informed of possible suspicious transactions in Kaupþing’s operations shortly before the bank collapsed. Having made inquiries, the FME submitted a complaint to the Special Prosecutor on 13 March 2009. The Special Prosecutor then conducted a criminal investigation which lasted almost three years and led to an extensive collection of data (see paragraphs 14-25 below). Moreover, the applicants and ten other individuals had their telephone conversations intercepted. 11.     On 16 February 2012, the Special Prosecutor issued an indictment charging Hreiðar Már Sigurðsson and Sigurður Einarsson with breach of trust under Article 249 of the Criminal Code, and the other two applicants with participation in certain of those offences. These charges related essentially to the provision of unsecured loans without the appropriate authorisations. In addition, all the applicants were charged with market manipulation under section 117 of Act No. 108/2007 on Securities Transactions for giving a misleading picture of the transactions in question. 12.     The case was submitted to the Reykjavík District Court on 7   March 2012 and the main hearing took place from 4 to 14   November 2013. Forty witnesses gave evidence, including the applicants. On 12   December 2013 the District Court rendered its judgment, convicting the applicants as charged and sentencing them to between three years’ and five years six months’ imprisonment. 13.     The applicants appealed to the Supreme Court which, in a judgment of 12 February 2015, found the applicant Ólafur Ólafsson guilty of market manipulation and the other three applicants guilty of breach of trust and market manipulation. Hreiðar Már Sigurðsson was sentenced to five years and six months’ imprisonment, Sigurður Einarsson was sentenced to four years’ imprisonment and the other two applicants were sentenced to four years and six months’ imprisonment. 14.     Three of the applicants lodged petitions with the Committee on Reopening of Judicial Proceedings ( Endurupptökunefnd ), seeking to have the proceedings before the Supreme Court reopened. Their petitions were based inter alia on the ground that there had been significant defects in the procedure, as one of the Supreme Court judges, Á.K., had been disqualified from sitting in the case on account of his wife’s and his son’s connection to the case (see paragraphs 33-35 below). On 26 January 2016 the petitions were rejected. Magnús Guðmundsson did not lodge a petition for reopening. The procedural issues raised during and after the proceedings Access to documents 15.     During the investigation, the Special Prosecutor, on the basis of court warranted searches, seized large amounts of documents and electronic data, including from Kaupþing and KBL. The Government identified three different categories of data: “full collection of data” ( heildarsafn gagna ) referred to all the data seized and held by the Special Prosecutor, regardless of whether it had relevance to the case or not; “investigation documents” ( rannsóknargögn ) referred to the data, documents and other materials extracted from the full collection of data which had been defined by the Special Prosecutor as relevant to the case and which were marked as part of the “investigation file”; “evidence in the case” referred to the documents and other materials that were submitted in court by the prosecution or the defence and were part of the “case file” in the court proceedings. 16.     In order to conduct a search of the electronic data, the Special Prosecutor used an e-Discovery system named “Clearwell”. Certain keywords were entered into the programme, which then gave a collection of documents containing those words. Three separate Clearwell searches were carried out to sort out roughly the documents that might have relevance to the case, and after the searches new Clearwell case folders were created containing these “tagged” documents (which the applicants regard as a separate category). These folders were given the following names: -     ESS KAU Q Iceland, containing 8,956 documents, derived from Kaupþing’s computer systems, where e-mails and personal drives of 62 employees were searched through, and from other items seized in searches at three companies related to the applicants and at a law firm, as well as from items handed over by the FME; -     ESS KAU Q Iceland 2, containing 54,468 documents, from Kaupþing’s computer systems and from KBL; the e-mails of 11 employees of these companies in the period from 1 September to 31 October 2008 were searched; -     KAU KBLUC, containing 712,378 documents, derived from KBL’s computer systems after searching through all e-mails of 13 employees from December 2006. The documents in these Clearwell folders were subsequently reviewed by the investigators by making further searches using the Clearwell system and by reviewing them manually. Those documents that were regarded as having a connection with the case were then tagged and exported and made into “investigation documents”. 17.     During the course of the investigation, the applicants’ lawyers were regularly provided with copies of the “investigation documents”. However, they were denied copies of dvd recordings of statements by witnesses and the accused, on the ground that the requested material did not constitute a “document” within the meaning of section 37 § 1 of the Criminal Procedures Act (Law No. 88/2008: see paragraph 36 below); instead, they were invited to access these recordings in the premises of the Special Prosecutor, a procedure which was validated by the Supreme Court in decisions of 21   September 2009 by which it rejected the applicants’ requests to obtain copies. However, transcripts of all recorded depositions were made and handed over to the applicants, albeit with some delay on account of the volume of the material. 18.     When the case was submitted to the District Court, the defence received a copy of all the evidence submitted to the court by the prosecution, except for the aforementioned dvd recordings, of which transcripts were however provided. Moreover, the prosecution also submitted a list of all “investigation documents”, as well as those that it had decided not to submit as evidence. Included in the submitted evidence were files on all seized items in the case, along with rough overviews of what the items contained and which evidence, if any, had been collected from each seized item. 19.     The applicants and their lawyers repeatedly complained to the Special Prosecutor that their right of access to documents had been breached. At preliminary court sessions on 29 March and 27 April 2012 the applicants requested that the Special Prosecutor be required to hand over “a copy of the register of events (log-register) about connections between telephone calls or any other data which may have been created during the investigation of the case at the Office of the Special Prosecutor and which contains an overview of telephone calls which were tapped on the basis of rulings on tappings in the case”, as well as copies of all e-mails which had passed through their e-mail addresses and had been seized by the Special Prosecutor during the investigation. On 4 May 2012 the District Court dismissed the request, noting that the prosecution had stated that the data in question was accessible in the premises of the Special Prosecutor, where the defence could review it and, if appropriate, request that documents be submitted to the court as evidence. Following an appeal, the Supreme Court instructed the District Court to take a substantive position on the request. In a ruling of 29 May 2012 the District Court reiterated that the documentation was accessible to the accused. It further observed that while the prosecution should be considered generally to be under an obligation to grant the defence access to data acquired by the police during an investigation but not submitted to the court, the police and prosecution were not obliged to hand over copies of such data to the defence. On 8 June 2012 the Supreme Court upheld the District Court’s decision. Subsequently, the Special Prosecutor granted access to the data in question upon request. 20.     On 20 November 2012 the District Court dismissed the applicants’ request for dismissal of the case on account of the alleged breach of their right of access to documents. The indictment was partly dismissed on other grounds but that decision was overturned by the Supreme Court on 10   December 2012. 21.     In January 2013 the Special Prosecutor informed the defence that only documents and data marked by the investigators as relevant were considered to constitute “investigation documents” and that access did not extend to the “full collection of data” or to the collection of documents which had been identified in the Clearwell rough searches. However, the applicants would have access to their own e-mails, as well as to recordings of their own tapped telephone conversations, in so far as these were still stored at the relevant time. The defence was also informed that a complete list of recorded telephone conversations did not exist. 22.     The defence disputed that the above limitations were in compliance with domestic law and the Convention. The Special Prosecutor replied on 22 January 2013, referring to the obligation of the police to consider equally evidence against and in favour of the accused. He noted that an indictment was not accompanied by all investigative documents but only those on which the prosecution based its case, and that all investigation documents were nevertheless listed in the main document file, so that it was clear which documents had not been submitted. Those investigation documents could be reviewed in the premises of the prosecution after the case had been submitted to the court. 23.     At a court session on 24 January 2013 the prosecution submitted a large part of the documents requested by the applicant Hreiðar   Már   Sigurðsson, as well as transcripts of certain phone calls which had been unknown to the prosecution until after the court proceedings began. On 7   March 2013 the prosecution submitted further evidence requested by the defence, as well as further transcripts of phone calls which it had received after submitting the case to the court. 24.     At a preliminary court session on 21 March 2013 the applicants requested “a summary of all documents and other materials which have been acquired by the police and have not been submitted in the case” or, alternatively, a summary of all documents which had been acquired during the investigation by the police, that had been identified in a Clearwell search programme, and had been given the names “ESS KAU Q Iceland”, “ESS   KAU Q Iceland 2” and “KAU KBLUC” and had not been submitted in the case. As a further alternative, they requested a summary of all documents which had been acquired during the investigation, identified using the Clearwell programme and given the aforementioned names, which could be found using 15 specified search words or connections. The prosecution opposed those requests on the ground that such documents did not exist. The District Court, in a ruling of 26 March 2013, dismissed the applicants’ requests on the ground that section 37 § 1 of the Criminal Procedures Act applied only to data which had come into being and were still available but did not oblige the police or the prosecution to prepare documents at the request of the defence. On 4 April 2013 the Supreme Court dismissed an appeal on the ground that the ruling in question could not be appealed against. 25.     In the context of the applicants’ appeal against their conviction, they requested dismissal of the case inter alia on the ground that their right to have access to documentation, guaranteed by Article 70 § 1 of the Constitution and Article 6 of the Convention, had been violated. In its judgment, the Supreme Court noted that the applicants had been invited to access the “aggregate collections of data”. It then observed in relation to the request dismissed by the District Court on 29 May 2012 that it could not be overlooked that the collection of data seized by the police was enormous in scope and that among the data were e-mail communications that by their nature had to concern the financial affairs of a great many customers of Kaupþing and which had to be kept confidential, as well as personal messages concerning the private lives of employees. It further noted that the requests dismissed by the District Court on 26 March 2013 had related to the preparation of specific documents for the applicants rather than access to them. In neither of the District Court’s rulings had the applicants been denied access to specific documents; rather, they had been refused copies of an extensive collection of documents, which they had however been invited to access on the police premises. Thus, the rejection of the requests had not restricted the applicants’ right to access documents. 26.     The Supreme Court finally noted that the applicants had not made any other requests to the District Court for access to documents. It observed that “when an assessment is made as to whether the right of an accused man to access to documents has been restricted ..., the basic condition must be satisfied that a demand concerning that matter has been referred to the courts.” Consequently, it held that there were no grounds for dismissal of the case on the basis of a violation of the right of access to documents. Hearing of witnesses 27.     Shortly after the investigation began, the Special Prosecutor contacted Mr S.S., a British lawyer who had represented Al Thani and his relative and adviser, Sheik Sultan (hereafter “Sultan”), in their dealings with Kaupþing. Representatives of the Special Prosecutor met with Sultan in London in October 2009 and with Al Thani in October 2011, to obtain information about the case. The defence was not notified of these interviews or given an opportunity to participate. In the view of the Special Prosecutor, the interviews did not constitute formal depositions within the meaning of chapter VIII of the Criminal Procedures Act but rather informal questioning within the meaning of section 60 § 2 of the Criminal Procedures Act. The interviews were recorded and the audio recordings as well as written transcripts were included in the evidence submitted by the prosecution to the trial court. 28.     When the case was submitted to the District Court, the prosecution submitted a list of witnesses which it wished to have summoned to testify, including Al Thani and Sultan. On 10 February 2013 the prosecution contacted S.S. by e-mail and asked him to inform his clients of the prosecution’s decision and the court’s wish to hear both of them in person during a hearing in April. S.S. was also informed that his clients could, if they preferred, give evidence by telephone. On 21 February 2013 S.S.’s law firm informed the prosecution that Al Thani and Sultan were prepared to provide short statements confirming what they had previously said during their interviews but that they did not otherwise wish to participate in the proceedings in Iceland. At a court hearing on 7 March 2013, the prosecution informed the District Court that Al Thani and Sultan had refused to testify in court. No further attempts were made by the prosecution or the court to have them testify. The records of the hearing do not indicate that the defence at that point or before the main hearing commented on the witnesses not testifying or made any claims or requests that further attempts be made to summon them. 29.     In their appeals to the Supreme Court against their convictions, the applicants submitted that insufficient attempts had been made to have Al   Thani and Sultan testify in court. The Supreme Court considered, however, that the District Court judgment could only be quashed on that basis “if it were shown that [their] testimony ... might have had a significant impact on the conclusion regarding some issue in the case”. It also emphasised that the prosecution would have to bear the adverse consequences of the lack of that evidence. Telephone tapping 30.     In connection with the investigation of the case, and of other cases involving the applicants which were being investigated at the same time, the Vesturland District Court granted the Special Prosecutor several warrants to tap all phone calls made to and from all phone numbers registered to or being used by the applicants. The applicants’ phones were tapped in the period from 9 to 27 March 2010. The Special Prosecutor informed the applicants by letter of 28 December 2011 that the tapping had taken place and informed them that the records from the phone tapping would be deleted in accordance with section 85 § 1 of the of Criminal Procedures Act. 31.     During the period from February to April 2013, the applicants examined their tapped telephone conversations which were stored by the Special Prosecutor and discovered that among the phone calls were four calls between Hreiðar Már Sigurðsson and his lawyer and one call between Magnús Guðmundsson and his lawyer. Those applicants’ lawyers each wrote to the Special Prosecutor in this connection and also submitted a complaint to the State Prosecutor against the employees at the Office of the Special Prosecutor. The Special Prosecutor replied to Hreiðar   Már   Sigurðsson’s lawyer, stating that a mistake had been made as the phone calls in question had not been deleted immediately pursuant to section 85 of the Criminal Procedures Act, but that they had since been deleted. He described the phone tapping process as follows. The calls had been recorded with help from the Computer Forensics Division of the Rejkjavík Metropolitan Police; they had been scanned by the investigators, who had at the same time made brief notes about what they regarded as relevant to the investigation of the case; the investigators had been instructed to stop listening to phone calls when it became clear that a defendant was speaking to his defence lawyer and not to record what had been revealed in the conversation up until that point. However, an employee responsible for documenting the phone calls had made the mistake of not mentioning the phone calls in question when writing a memorandum, and as a result they had been omitted from a list of phone calls that should be deleted. The Special Prosecutor emphasised that the phone calls had not been listened to and that confidentiality had been respected. 32.     The State Prosecutor, by letters of 24 April 2013 and 14   February 2014, decided to suspend the investigations into the complaints which had been lodged. In the letter to Hreiðar Már Sigurðsson, it was considered that the explanations provided by the Special Prosecutor were satisfactory; in the letter to Magnús Guðmundsson, it was noted that the tapping had been carried out in accordance with the Criminal Procedures Act, which was based on the premise that it was unavoidable that conversations between defendants and their lawyers would be recorded along with other conversations. It was added that nothing seemed to indicate that the applicant’s conversations had been listened to or used for the purposes of the investigation or in the submission of evidence. It therefore had to be considered that it had been a mistake or accident, and could not be considered to constitute gross negligence or intent. 33.     In their appeals to the Supreme Court against their convictions, the applicants in question referred to the recording of telephone conversations between them and their lawyers. The Supreme Court emphasised that there were no transcripts of any such recorded conversations in the case file, so that it was clear that they had not been used as evidence before the court. It further noted that it was not apparent how the police could arrange their procedures for tapping a defendant’s telephone in any other way, since it could not be known in advance whether the conversation would be with a defence lawyer. Moreover, as to the applicants’ suggestion that parties other than police employees could have ascertained the nature of the conversations, the Supreme Court observed that the police had no authority to assign this task, which involved intrusion into private life, to others. Finally, the Supreme Court noted that no arguments had been presented to the effect that any such recordings had actually affected the investigation of the case or that there could have been a realistic danger of that. Impartiality 34.     On 8 December 2014 the Supreme Court informed the parties that Á.K., a former Supreme Court judge, would be sitting as an ad hoc judge in the appeal. The Supreme Court received no comments in that respect, but the defence commented on the possible lack of impartiality of another Supreme Court judge, who subsequently withdrew. By e-mail of 19   December 2014, the Supreme Court informed the parties that Á.K.’s wife, Mrs S., had been a member of the Board of the FME until January 2009 and invited them to submit their observations on the matter. Upon a request from one of the defence lawyers, further information on the exact day Mrs S. had left the FME Board was sent to the parties. By 23 December 2014 the Supreme Court had received answers from all the parties, stating that no objections were made as to the participation of Á.K. in the proceedings. 35.     The Government informed the Court in their observations that they had received a statement from Á.K. dated 19 September 2016 in which he stated that his wife, Mrs S., had been appointed Vice-Chair of the Board of the FME on 1 January 2007 and that she had resigned on 25 January 2009. She had confirmed that between 9 December 2008, when the transactions at issue had been sent to the FME, and the date of her resignation, the transactions had been discussed once in a Board meeting, on 19   January 2009, when the director of the FME had announced that a specialist had been appointed to make further inquiries into them; the specialist had handed his report to the FME on 6 March 2009 and the FME had submitted its complaint to the Special Prosecutor on 13 March 2009. Consequently, the matter had never been discussed while Mrs S. had been on the Board. Á.K. further stated that he had not regarded himself as being disqualified from sitting but that he had not wished to sit unless it was clear that the defence had no reservations, and he had therefore requested that the defence be informed of the connection. 36.     The Government had also received a statement from Á.K.’s son, Mr   K., dated 19 September 2016, confirmed by a former member of the Winding-Up Committee of Kaupþing, according to which Mr K. had worked in Kaupþing’s legal department from November 2007 until the bank collapsed in October 2008. Shortly after the appointment of the Resolution Committee, Mr K. had started working for the Committee and he had been head of its legal department from December 2008. After the Resolution Committee had been discontinued at the end of 2011 and a Winding-Up Committee had been appointed, Mr K. had taken up the position as head of the legal department of the latter committee, a post which he had held until August 2013. Mr K. noted in his statement that when he had taken the position of head of the legal department of the Resolution Committee, it had been decided that cases concerning criminal investigations and actions for damages against former employees would not form part of the work of the legal division of the Resolution Committee, because he had been an employee of Kaupþing before its collapse; the same applied after the Winding-Up Committee was appointed. These cases were entrusted to other employees who reported directly to the Resolution and Winding-Up Committees. Mr K. thus stated that he had not been involved in any way in the case against the applicants or civil actions against them. He added that there had never been any contracts between him and the said committees with an incentive tied to the recovery of Kaupþing’s assets. Following his resignation in 2013, he had acted as a consultant to the Winding-Up Board but the consultancy agreement had not related to the present case and had not included performance-related payments. Finally, with regard to the applicants’ assertion that the defence had not been notified that he had been head of Kaupþing’s legal department, Mr K. observed that he was personally acquainted with all of the defence lawyers in the case and had worked with three of them. Moreover, he had been in contact with two of them while head of the legal department. RELEVANT DOMESTIC LAW 37.     The relevant provisions of the Criminal Procedures Act (Law no.   88/2008) are as follows: Section 6 “1. A judge, including an associate judge, is disqualified from conducting a case if: ... g. there are other conditions or circumstances which are likely to cast reasonable doubt on his impartiality.” Section 7 “1. A judge shall be responsible for ensuring his own eligibility to hear a case. Parties may, however, require a judge to recuse himself. In the same manner, the presiding chief judge shall ensure the eligibility of expert associate judges.” Section 37 “1. The defence attorney must, as soon as possible, obtain a copy of all case documents [1] relating to his client, as well as facilities to examine other materials in the case. The police, however, can deny a defence attorney access to individual documents or other data for up to three weeks after they were created or came into their custody if it is believed that such access would damage the investigation of the case. The police may deny the defence attorney copies of individual documents while the case is being investigated for the same reason. Denial of access may be referred to a judge. ... 3. In addition, the police may deny the defence attorney access to individual documents and other data during the investigation of the case if the interests of the State or the public are at stake, or if the urgent interests of individuals other than his client are at stake, or if communications with authorities in other countries prevent such access. Such denial of access may be referred to a judge. ... 5. The police must give the defence attorney the opportunity to follow the progress of the investigation in so far as possible. The police are to take into account any suggestions the defence attorney may submit as regards individual investigative actions, unless the police consider such suggestions prohibited or irrelevant.” Section 116 “1. Anybody aged fifteen or older who is subject to Icelandic jurisdiction and is not the defendant or his representative must appear before the court as a witness to respond verbally to questions asked of them about the facts of the case ... ... 4. If the witness is located far from the court or if attending the court would otherwise cause him significant inconvenience, the judge may decide that testimony is to be given during the court session by telephone ot other telecommunications methods, provided that the testimony is given in such a manner that everyone present during the session is able to hear the testimony. This authorisation cannot be applied if the testimony of the witness may be expected to be of substance in the resolution of the case.” Section 120 “1. The prosecutor shall be responsible for summoning witnesses to the court. The defendant may, however, summon witnesses to the court if he so chooses. ... 2. If necessary, the judge shall summon a witness to the court by means of a written summons issued on his own initiative or at the request of either party. The summons shall state the name and address of the witness, the main reasons for the summons, the name of the court, where and when the testimony is to be given and what the consequences may be if the witness does not attend or comply with his duty in other respects. The prosecutor shall be responsible for the issuance of the summons and such issuance shall be conducted in the same manner as the issuance of the charges, ...” Section 121 “1. If a witness does not attend the court according to a legitimately issued summons and has not provided a legitimate reason for not doing so, the prosecutor may instruct the police to fetch the witness or to bring the witness before the court at a later date. The police are under an obligation to comply with such instructions from the prosecutor. ...” 38.     According to the Criminal Procedures Act, judicial proceedings can be reopened under certain conditions. Section 228 of the Act states that when a District Court judgment has not been appealed or the time limit to appeal has passed, the Committee on Reopening of Judicial Proceedings can approve a request of a person who considers that he or she has been wrongly convicted or convicted of a more serious offence than he or she committed to reopen the judicial proceedings before the District Court, if certain conditions are fulfilled. The conditions are, inter alia , that there were serious defects in the processing of the case which affected its conclusion (item d). The State Prosecutor can request a reopening to the advantage of the convicted person if he considers that the conditions in paragraph 1 of section 228 of the Act are fulfilled. In accordance with section 229 of the Act, the request for reopening shall be in writing and sent to the Committee on Reopening of Judicial Proceedings. It shall include detailed reasoning on how the conditions for reopening are considered to be fulfilled. According to section 231 of the Act, the Committee on Reopening of Judicial Proceedings decides whether proceedings will be reopened. If a request for reopening is approved the first judgment remains in force until a new judgment is delivered in the case. Section 232 of the Act states that the Committee on Reopening of Judicial Proceedings can accept a request for the reopening of a case which has been finally decided by the Court of Appeal or the Supreme Court and a new judgment will be delivered if the conditions of section 228 are fulfilled. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 39.     The applicants complained that the Supreme Court had not been independent and impartial, in that (i) the wife of one of its judges had been Vice-Chair of the Board of the FME while it was conducting its investigation into Kaupþing, and (ii) the son of the same judge had had a strong professional affiliation with the bank, in particular having been employed as head of the legal department of Kaupþing after its collapse and in that capacity having brought large civil claims against two of the applicants. The applicants relied on Article 6 § 1 of the Convention, which in so far as relevant reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” 40.     The Government contested that argument. Admissibility The parties’ arguments 41.     The Government maintained that the applicants had failed to exhaust domestic remedies as they had not challenged Á.K. prior to the delivery of the Supreme Court’s judgment. While acknowledging that under section 7 §   1 of the Criminal Procedures Act, a judge should on his own initiative evaluate the existence of reasons warranting his withdrawal, so that disqualification was not primarily the responsibility of the parties, the Government pointed out that the applicants had been made aware before the main hearing that the judge in question would sit and that his wife had been a member of the Board of the FME until 25 January 2009. They further maintained that information relating to Á.K.’s son’s former position as head of Kaupþing’s legal department had been available and could easily have been obtained by the time the case was heard by the Supreme Court. In that connection, the Government pointed out that the son, Mr K., had been an employee of Kaupþing at the same time as two of the applicants were directors of the bank and that, according to his statement of 16   September 2016, he was personally acquainted with all of the defence lawyers, having studied with three of them and worked with two of them. On that basis, and taking into account the small size of Iceland’s legal community, the Government considered that Mr K.’s connection with Kaupþing should have been known to the defence. The Government accepted, however, that the applicants had not been aware of Mr K.’s consultancy agreement with the bank from 2013. 42.     In the Government’s view the applicants had failed to exhaust domestic remedies, as they had not raised these issues before or during the main hearing. The Government maintained that had a request for withdrawal been made, the Supreme Court would have given it due consideration and decided on the matter. They noted in this respect that one of the other judges initially appointed had withdrawn after an observation from the defence. In their view, the explanation provided by the applicants for not objecting to Á.K. was not consistent with the defence’s comment on that other judge and they also noted that one of the defence lawyers had inquired further about the date of Á.K.’s wife’s resignation before stating that no observations would be made. The Government concluded that the applicants could not reasonably have assumed that an objection would be in vain or detrimental to their case. While considering that a failure to challenge judges may not in general be regarded as a waiver of the right to an impartial tribunal, the Government maintained that such a failure, without justifiable reasons, constituted non-exhaustion of domestic remedies. Finally, the Government submitted that the use of the extraordinary measure of requesting reopening of the case could not be regarded as exhaustion of domestic remedies. 43.     The applicants considered that they had exhausted domestic remedies. They acknowledged that they had not objected to the judge in question despite having been informed of his wife’s position but claimed that they had feared a negative bias if they objected after the judge and his colleagues had not raised and decided on the issue on their own initiative. The applicants pointed out that once they had no longer been dependent on those specific judges, they had filed a petition for extraordinary reopening of the case, inter alia on the ground of Á.K.’s lack of impartiality. They further noted that in the cases of Pfeifer and Plankl v. Austria (no.   10802/84, 25 February 1992, Series A no. 227), and Oberschlick v.   Austria (no. 11662/85, 23 May 1991, Series A no. 204), the Court had not considered a failure to object to judges on the ground of their lack of impartiality to constitute a waiver of the right to an impartial tribunal. The Court’s assessment 44.     The Court considers at the outset that a distinction must be drawn between the two branches of the applicants’ allegations, and it will accordingly deal with them separately. (a)    Lack of impartiality of Á.K. on account of his wife’s membership of the FME Board 45.     The Court does not consider it necessary to decide whether an objection to a judge’s participation in a trial on account of his alleged lack of impartiality constitutes an effective remedy to be exhausted for the purposes of Article 35 § 1 of the Convention, as it considers that this complaint is in any event inadmissible for the reasons given below. 46.     The Court does not consider either that the matter should be regarded as one of waiver of rights in the classic sense of that term as used in its case-law, although it acknowledges that in certain cases similar situations have been examined in the light of the principles relating to waiver (notably Pfeifer and Plankl and Oberschlick , both cited above). Rather, the issue in the present case is whether the applicants, when faced with a situation in which it was arguable that a judge should be disqualified, but he was not unequivocally excluded by law, by not objecting to his participation can be said to have accepted that there were no legitimate reasons to doubt the impartiality of the court (see Smailagić v. Croatia (dec.), no. 77707/13, §§ 34 and 36, 10 November 2015). 47.     In that connection, the Court recalls that in the case of Zahirović v.   Croatia (no. 58590/11, §§ 31-37, 25 April 2013) it held in similar circumstances to those of the present case that due to the applicant’s failure to use the opportunity to submit his complaints about, inter alia , a specific judge’s alleged lack of impartiality at the trial stage of the proceedings, it could not conclude that the alleged procedural defect complained of had interfered with the applicant’s right to a fair trial. It consequently declared the applicant’s complaint inadmissible as manifestly ill-founded. It stated in that respect that “when the domestic law offers a possibility of eliminating the causes for concerns regarding the impartiality of the court or a judge, it would be expected (and in terms of the national law required) of an applicant who truly believes that there are arguable concerns on that account to raise them at the first opportunity”. A similar situation arose in Smailagić , cited above, where the Court concluded that, “given the failure of the applicant to use the opportunity to eliminate the concerns as to the lack of impartiality ... at the relevant time ..., and thus to ensure that his rights were respected, without invoking any relevant reason for such an omission, it cannot be considered that he had legitimate reasons to doubt the impartiality of the court.” The Court was therefore prevented from concluding that the alleged procedural defect complained of had interfered with the applicant’s right to a fair trial. 48.     The Court notes that in the present case the applicants do not dispute that under Icelandic law it was possible for them to challenge Á.K.’s participation on the