CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 22 décembre 2020

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text-align:justify; font-size:10pt } .s391E78BA { font-family:Arial; background-color:#ffffff } .s4B8D41EE { font-family:Arial; font-size:10pt } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 }   GRAND CHAMBER CASE OF GESTUR JÓNSSON AND RAGNAR HALLDÓR HALL v.   ICELAND (Applications nos. 68273/14 and 68271/14)   JUDGMENT   Art 6 § 1 (criminal) • Criminal charge • Proceedings against defence counsels for failing to appear at defendants’ hearing not involving determination of a “criminal charge” • Application of the three Engel criteria • (1)   Offence not classified as “criminal” under domestic law • (2)   Relevant provision specifically addressing prosecutors and lawyers • Measures ordered by courts to sanction disorderly conduct in proceedings generally more akin to disciplinary powers • Not clear whether nature of offence to be considered criminal or disciplinary, despite serious breach of professional duties • (3)   Misconduct not sanctionable by imprisonment, fines not convertible into deprivation of liberty in event of non-payment, and not entered onto criminal record • Severity of penalty insufficient to be “criminal” within autonomous meaning of Art   6, despite size of impugned fines (over EUR 6,000), absence of an upper statutory limit on their amount and Supreme Court’s determination otherwise   STRASBOURG 22 December 2020   This judgment is final but 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, sitting as a Grand Chamber composed of:   Ksenija Turković, President,   Robert Spano,   Linos-Alexandre Sicilianos,   Angelika Nußberger,   Síofra O’Leary,   Yonko Grozev,   Georgios A. Serghides,   Branko Lubarda,   Georges Ravarani,   Pere Pastor Vilanova,   Alena Poláčková,   Latif Hüseynov,   Jolien Schukking,   Lado Chanturia,   Gilberto Felici,   Darian Pavli,   Raffaele Sabato, judges, and Søren Prebensen, Deputy Grand Chamber Registrar, Having deliberated in private on 9 October 2019, 15 June and 22   October 2020, 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 and Mr   Ragnar Halldór Hall (“the applicants”), on 16   October 2014. 2.     The applicants were represented by Mr Geir Gestsson, a lawyer practising in Reykjavik. The Icelandic Government (“the Government”) were represented by their Agent, Ms Ragnhildur Hjaltadóttir, Permanent Secretary of the Minister of the Interior. 3.     The applicants complained about having been tried in absentia for contempt of court by a first-instance court and alleged that the Supreme Court, acting as an appellate court, had not remedied the procedural violations deriving from it. They also complained of having been found guilty of an offence which did not constitute a criminal offence under national law and that the punishment imposed on them had not been foreseeable. 4.     The applications were allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 2 and 3 March 2016 respectively the President of the First Section decided to give notice of the applicants’ complaints to the Government. Subsequently, the applications were allocated to the Second Section of the Court. On 30 October 2018 a Chamber of that Section, composed of Julia Laffranque, Robert Spano, Işıl   Karakaş, Paul Lemmens, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, Ivana Jelić, judges, and Stanley Naismith, Section Registrar, gave judgment. The Chamber unanimously joined the applications, found that there had been no violation of Articles 6 and 7 of the Convention and that the complaint raised by the applicants under Article   2 of Protocol No.   7 to the Convention was inadmissible. 5.     On 25 January 2019 the applicants requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. On 6   May 2019 the panel of the Grand Chamber granted that request. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. 7.     The applicants and the Government each filed observations on the admissibility and merits of the case. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 9 October 2019. There appeared before the Court: (a)     for the Government Mr   E.K.   Hallvarðsson ,   Agent , Ms   F.R.   Þorsteinsdóttir , Ms   G.S.   Arnardóttir , Ms   M.   Thejll ,   Deputy Agents ; (b)     for the applicants Mr   G.   Gestsson ,   Counsel , Ms   V.E.   Guðmundsdóttir ,   Adviser .   The Court heard addresses by Mr   G.   Gestsson and Ms   F.R.   Þorsteinsdóttir and their replies to questions put by the judges. THE FACTS 9.     The applicants were born in 1950 and 1948 respectively. They live in Reykjavik. Both applicants are lawyers practising in Reykjavik. 10.     On 16 February 2012 Y and Z were indicted, along with two other individuals, for participating in fraud and market manipulation. On 7 March 2012, in accordance with section 31 of the Criminal Procedure Act no.   88/2008 (hereinafter “the CPA”), the first and second applicants were respectively appointed as Y’s and Z’s defence counsel. 11.     The background to the criminal proceedings instituted against Y and   Z, set out in Sigurður Einarsson and Others v.   Iceland (no.   39757/15, §§   7 et seq., 4 June 2019), was the acute 2008 global financial crisis which affected the Icelandic financial sector, resulting, among other consequences, in the collapse of Iceland’s largest banks. 12.     On 7 March 2012 the prosecution’s bill of indictment against, inter alios , Y and Z was filed with the District Court of Reykjavik. At a preliminary hearing the defendants pleaded not guilty to the charges against them. From March to December 2012 the prosecutor and the applicants, together with the other defence counsel in the proceedings, repeatedly submitted arguments in further preliminary hearings with regard to various issues, such as the evidence submitted by the prosecution, the deadline for the defence to file pleadings and the defence’s request to dismiss the case. The Supreme Court issued three rulings on procedural matters in the case. 13.     On 19 December 2012, having consulted the prosecution, the applicants and the other defence counsel, the District Court judge decided that the trial would take place from 11 to 23 April 2013. The second applicant replied to the judge’s email on the same date, stating that, although it was reasonable to schedule dates for the trial, the case would not be ready for trial on those proposed dates because the prosecution had not submitted evidence requested from it or issued a witness list. Shortly afterwards the judge replied with the message “Merry Christmas!” 14.     At preliminary hearings on 24 January and 7 March 2013 the prosecution submitted further evidence. During the second of these hearings, the applicants and the other defence counsel requested more time to study the evidence and asked that the trial be postponed, on the grounds, inter alia , that the submission of evidence had not been completed. By a decision of the same date the District Court rejected the request. 15.     At a preliminary hearing on 21 March 2013, the prosecution and one defence counsel submitted further evidence. The applicants and the other defence counsel requested that the prosecution provide them with certain documentary evidence. At a preliminary hearing on 25 March 2013 the applicants and the other defence counsel again requested that the trial be postponed for 6-8 weeks, to allow them to study the new evidence presented by the prosecution. By decisions of 26 March 2013, the District Court rejected both requests. By a decision of 4 April 2013, the Supreme Court dismissed an appeal against these decisions. 16.     On 8 April 2013 each applicant wrote a letter to the District Court judge in the case, arguing that, for reasons of conscience, they were unable to continue to perform their duties as defence counsel for their clients. The applicants stated, inter alia , that they had not been informed about the deadline to submit their pleadings to the Supreme Court before its ruling of 4   April 2013; that the prosecution had neglected to send them a copy of its pleadings; that the defence had not had adequate access to important documents; that the prosecution had tapped telephone conversations between them and their clients; and that in general the entire procedure had violated their applicants’ rights under the Constitution, the CPA and the Convention. Lastly, the applicants stated that their clients’ rights had been so grossly violated that they were obliged to withdraw from further participation in the case. They noted that they had discussed the matter with their clients and made it clear that the latter approved their decision. The applicants requested that their appointment as defence counsel for their clients be revoked, in accordance with section 21(6) of the Attorneys’ Act no.   77/1998. 17.     On the same date the District Court judge replied to the applicants’ letters, refusing their requests. The judge referred to section 34 of the CPA and to section 20(1) of the Attorneys’ Act (see paragraphs 37-38 below), noting that the applicants had accepted their appointment and that this acceptance could not be withdrawn if there was a risk that the proceedings would be delayed in consequence, which was the case in the instant situation. The judge therefore decided that the trial would start on 11 April 2013 as previously decided on 19 December 2012. The applicants replied to this letter on the same date, referred to their previous arguments and stated that they would not attend the trial on 11 April 2013. It appears from the record of the hearing of 11 April 2013 that, in this last reply, the first applicant stated that he could not be forced to carry out his defence duties against his will and conscience and that therefore he reiterated his previous statement concerning his decision to cease serving as defence counsel for his client. The second applicant stated that he deemed the judge’s refusal to release him from his duties to be unlawful and that he considered himself free from his defence duties in the case. 18.     On 11 April 2013 Y and Z attended the scheduled hearing, accompanied by new defence counsel. It was ascertained that the applicants were not in attendance and the content of the applicants’ first and second communications of 8 April 2013 was noted. According to the record, it was then clear to the court that the only option was to release the defence lawyers from their duties, despite the presiding judge’s refusal to allow them to withdraw. New defence counsel were then appointed for Y and Z and the trial was postponed for an unspecified period. The prosecutor noted that it was clear that the applicants’ sole purpose in resigning from the case had been to delay the proceedings and expressed the opinion that, through this conduct, the defence was in breach of their statutory duties. He therefore requested that the applicants be fined for contempt of court. 19 .     In their appeal before the Supreme Court, as well as before this Court, the applicants submitted that, according to news reports, the presiding judge at this stage explicitly rejected the State Prosecutor’s request, stating that the conditions for imposing fines were not met. However, the Government stated that the court record did not indicate whether the presiding judge had taken a position on this point. 20.     A trial was held before the District Court from 4 to 14 November 2013. In the meantime, the presiding judge had withdrawn from the case and a new judge had been appointed. 21.     By a judgment of 12 December 2013, Y and Z, along with the other two accused, were convicted. The fees awarded to the defence counsel of all the accused amounted to 88,831,252 Icelandic krónur (ISK; approximately 559,000   euros (EUR) at the relevant time). In particular, ISK 10,855,750 (approximately EUR 68,300) were awarded to the first applicant. He was also awarded ISK 90,202 (approximately EUR 570) for the expenses incurred jointly with the second defence counsel. The District Court awarded the second defence counsel ISK 5,898,500 (approximately EUR   37,000) for his fees. Furthermore, without having heard the applicants, the District Court imposed a fine of ISK 1,000,000 (approximately EUR 6,200) on each of them under section 223(1) (a) of the CPA, for intentionally causing undue delay in the case, and (d), for being in contempt of court through their conduct. The District Court stated that it found it unavoidable to impose these fines on the applicants for the following reasons. It noted, in particular, that the applicants had been granted ample time to prepare the accused’s’ defence in a satisfactory manner in the period before the date of the scheduled main hearing, namely 11 April 2013, although further submissions were made in the intervening period. The applicants’ decision not to attend the trial on 11   April 2013 had caused unnecessary delay in the case and thus damaged the interests of their clients and the other defendants. In addition, given that the judge had denied their request to be released from their defence duties, the defence lawyers’ conduct in failing to appear at the main hearing was such as to constitute contempt of court. 22.     On 13   December 2013 the applicants appealed to the Supreme Court as regards the imposition of fines, by way of an appeal lodged by the State Prosecutor at their request. Before the Supreme Court, the applicants primarily requested that the District Court judgment be annulled with regard to the imposition of the fines and, as a subsidiary request, were the Supreme Court to reject the request for annulment, that the fines be reduced. 23.     In their submissions to the Supreme Court the applicants claimed, firstly, that they had been penalised without having been given an opportunity to defend themselves against the prosecution’s claims or made aware of the court’s intention to fine them. This had been a violation of their right to a fair trial under Article 6 §§ 1 to 3 of the Convention and Article   70 of the Constitution. Secondly, the applicants maintained that they had had valid reasons for resigning from the case and that the legal conditions for fining them had not been met. 24.     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. 25.     Concerning the second complaint, the applicants argued, inter alia , that imposing fines on them as defence counsel had not been in accordance with the CPA, in that they had no longer been defence counsel when the District Court judgment was delivered. They argued that, under section 224 of the CPA, they should have been fined immediately as “others”. Furthermore, the applicants maintained that the conduct they were criticised for had not occurred during the proceedings, as required by the CPA. In any event, their behaviour could not be considered as contempt of court, given that they had not attended any hearings with the judges who imposed the fines and decided on the merits of the case. The applicants further stated that their actions had been in their clients’ interests, and their clients had approved their decisions. 26 .     The applicants submitted documentary evidence with their submissions to the Supreme Court, including emails and written correspondence between the applicants (and other defence counsel) and the prosecution and the District Court, a letter from the first applicant and another defence counsel to the State Prosecutor concerning access to documents in the main proceedings and the latter’s reply, and a news article entitled “Mistake to reject a request of extension” which claimed that the State Prosecutor’s proposal to fine the applicants had been rejected by the judge at the hearing of 11 April 2013. They did not ask to examine witnesses or to give statements in person before the Supreme Court. 27.     In his brief of 26 March 2014, the State Prosecutor endorsed the District Court’s decision to fine the applicants and underlined that, under section 34 of the CPA, a defence counsel’s request to withdraw from a case was to be granted unless there was a risk that the case would be delayed as a consequence, which was the situation in the applicants’ case. Moreover, the fact of simply failing to show up at the hearing, notwithstanding the judge’s denial of the applicants’ request to withdraw and thus snubbing him, clearly involved contempt of court. The State Prosecutor also observed that the applicants had been acting as defence counsel for their clients since the investigation stage of the main proceedings in 2009. The indictment in this case was issued on 16 February 2012 and the case was then filed with the court on 7 March 2012. Fourteen court hearings had taken place by the time the applicants submitted their resignation letter of 8 April 2013, more than one year after the case had been filed. In these circumstances, the State Prosecutor agreed with the District Court that the applicants had had ample opportunity to prepare the defence adequately, despite the fact that, in the interim, further evidence had been presented. 28.     The Supreme Court held an oral hearing. No witnesses were heard and the applicants did not give statements before the court. 29.     The applicants were represented by two separate defence counsel before the Supreme Court. However, the applicants claimed before this Court that, in view of the limited time available to present the appeal before the Supreme Court, each defence counsel had given arguments on behalf of both applicants. 30 .     According to the second applicant’s summary of the oral pleadings before the Supreme Court, the applicants argued, inter alia , that a decision to impose court fines was an ex proprio motu decision of the relevant court, without the parties’ involvement, and could therefore not be quashed and referred back to the first-instance court. Referring the case back to the District Court for a new trial on the grounds of a violation of the CPA and of Article   6 of the Convention could never be legitimate at this stage, as the time-limits for imposing fines had expired. Furthermore, under sections   223 and 224 of the CPA the applicants could only be fined as “defence counsel” in a substantive judgment in the criminal case against their clients, or as “others” during the main trial in the criminal case against their clients. Lastly, the applicants argued that the amount of the fine was ten times higher than the fines imposed in previous cases and that no maximum amount for fines was stipulated in the CPA. Furthermore, the applicants referred to the principle of legality in criminal law (Article 69 of the Constitution) and to the principle of lex certa . 31.     By a judgment of 28 May 2014, by a majority of three to two, the Supreme Court confirmed the District Court judgment as regards the fines imposed on the applicants. 32.     In its judgment the Supreme Court described the facts in detail. It referred to the obligation incumbent on lawyers under section 20 of the Attorneys’ Act to accept an appointment or nomination as defence counsel in criminal proceedings if they fulfilled the statutory requirements. Furthermore, the Supreme Court held that the applicants could not withdraw as defence counsel in a criminal case by referring to section 21(6) of the Attorneys’ Act, since that provision applied only to civil cases. Their decision not to attend the trial in spite of the District Court having refused their request to be relieved of their duties as defence counsel had not been in accordance with the law or in the interest of their clients or the other defendants. Furthermore, their statements in resigning from their positions as defence counsel had been a gross violation of their obligations as defence counsel under sections 34(1) and 35(1) of the CPA. The applicants had completely disregarded legitimate decisions taken by the District Court judge, who had had no other option than to revoke their appointment as defence counsel and to appoint others to secure legal representation for the accused. 33 .     Furthermore, the judgment contained the following reasons: “Part V ... The professional duties of a judge include the tasks of appointing defence lawyers, determining whether they should be released from their duties and ensuring that the procedure followed in a case is correct ... The defendants ignored the judge’s refusal to release them from their defence duties and did not appear in court on 11 April 2013 when the main hearing was to take place, even though they were still the appointed defence lawyers in the case. This Court agrees with the District Court that the law does not authorise the defendants to behave in this way. Instead, they should have appeared in court and, as appropriate, raised their objections to the procedure in court. The defendants’ conduct in this respect was neither in the interests of their clients nor of the other accused. Furthermore, the defendants’ statements in the above-mentioned letters of 8 April 2013 to the effect that they were no longer the defence counsel in this case represented a severe failure to discharge their professional duties in their capacity as defence lawyers in a criminal case ... The defendants totally ignored the lawful decisions taken by the judge, leaving him with no option but to release them from their defence duties and to appoint others in their place. This caused a major delay in the case. Part VI (1) [1]     Chapter XXXV of Act no. 88/2008 contains a provision on fines for contempt of court. The first item of section 222(1) states that a judge, acting on his or her own motion, decides on fines, which are payable to the National Treasury, in accordance with the rules of this Chapter. The second item of the same paragraph states that special proceedings may be launched with regard to offences that are subject to the fines referred to in this Chapter. (2)     Under section 223 of Chapter XXXV a fine may be determined against the prosecutor, the defendant or the legal counsel for the conduct as stated in letters (a) to   (d) of the said provision. The actions of intentionally causing undue delay in a case (letter (a)) and otherwise offending the dignity of the court during a hearing (letter (d)) fall under this provision. Paragraph 2 of the said section provides for the possibility of fining the defendant, or other persons testifying before the court, for contempt of court. Paragraph 3 of the same section provides for the possibility of fining persons other than those mentioned in the first two paragraphs, for breaching a ban imposed by the judge with regard to the arrangements for a court hearing, as referred to in section 11(1) and   (2) of Act no. 88/2008, for disregarding a judge’s order to maintain order during a court hearing, or for otherwise behaving in an inappropriate or indecent manner. Furthermore, section 223(4) states that if a judge deems that paragraphs 1 to 3 have been breached in a minor manner, the judge may decide to reprimand the offender rather than to impose a fine. Section 224(1) states that where a judgment is delivered in such a case, a fine against the prosecutor, the defendant, the defence counsel or the legal adviser may be imposed therein. If the case is concluded in a different manner, fines against those parties are to be imposed in a ruling. Paragraph 2 of the same section concludes by stating that fines imposed on other parties than those named in the first paragraph of the said section are to be imposed by means of a ruling as soon as the offence occurs. (3)     The amount of a fine for contempt of court, which is determined in accordance with Chapter XXXV of Act no. 88/2008, is not subject to any particular ceiling. The fines which were imposed on the defendants were high. Having regard to both of these factors, it must be deemed that the fines are by nature a penalty, as agreed by the parties during the proceedings before the Supreme Court. (4)     As previously stated, the second sentence of section 222(1) permits the prosecution to instigate proceedings for those offences which are subject to fines pursuant to this Chapter. Pursuant to the general rules, the defendants in question must then be provided with an opportunity to defend themselves. No such opportunity was provided here. On the other hand, as previously stated, it was also possible for the judge in the relevant criminal case to determine fines in accordance with the first sentence [of section 222(1)]. In those circumstances no special claim on behalf of the prosecution was 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] ... (5)     When it became clear that [the applicants] would not fulfil their duty by attending the trial and the court was considering the imposition of fines, they should have been summoned to a special hearing and given an opportunity to present their case and submit further relevant arguments beyond what had already been 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. (6)     As stated in Part 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, in accordance with the law, were entitled to have the fines imposed by the District Court reviewed by a higher court following an oral hearing. [The applicants’] right to defend themselves on appeal has not therefore been subject to any limitation by law and they were given the opportunity to raise any views in the oral hearing of the case and, as appropriate, to submit statements in person and to present witnesses, cf. section   205(3) [of the CPA], or to instigate special witness proceedings, cf. section   141(1) of the same Act. In the light of these considerations, the applicants’ rights have not been impaired by the District Court’s failure to hold an oral hearing before deciding to impose the fines. Accordingly, the procedure in question was in accordance with the law and did 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] ... For reference, see the judgments [of the European Court of Human Rights] in the case of Weber v. Switzerland , of 22 May 1990, and in the case of T.   v.   Austria , of 14 November 2000. Accordingly, with reference to the reasoning of the appealed judgment, the decision as to the fines imposed [on the applicants] must be upheld. ...” 34.     The minority shared the majority’s opinion that the applicants’ conduct in failing to attend the trial in the criminal case against their clients had not been in accordance with the law and had been a breach of their duty as defence counsel. The minority also agreed that their conduct had caused a delay in the proceedings and that the imposed fines had constituted criminal punishment. However, the minority further held as follows: “When it became clear that [the applicants] would not attend the hearing, a hearing should have been convened immediately, in line with the provisions of [Chapter XXXV of the CPA], and [the applicants] given notice of the charges and an 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 taken in the judgment of 12 December 2013 although they were no longer defence counsel, without notifying them of those intentions and without allowing them to defend themselves, both as regards the decision to impose the fines and the amount. In view of the above-mentioned considerations, the handling 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 for a fresh hearing. In the light of these circumstances ..., the appealed provision of the District Court’s judgment with regard to the ... fines should be annulled.” RELEVANT LEGAL FRAMEWORK AND PRACTICE i.     DOMESTIC LAW MATERIAL A.     The Icelandic Constitution 35 .     The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) read as follows: Article 69 “No one shall 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 shall not be more severe than the law permitted at the time of commission.” Article 70 “(1)     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. (2)     Everyone charged with criminal conduct shall be presumed innocent until proven guilty.” B.     The General Penal Code 36 .     The relevant Articles of the General Penal Code no. 19/1940, as applicable at the time of the facts of the case, read as follows: Article 51 “(1)     When the amount of a fine is decided, regard shall be given, insofar as appropriate, to the income and assets of the defendant, their financial standing, their obligations towards dependents and other factors affecting their ability to pay, as well as to the financial gain or saving which resulted from, or was intended to result from, the offence. (2)     A decision on the conversion of a fine into a term of imprisonment ... shall be unaffected by the fiscal capacity of the defendant under paragraph   1.” Article 70 “(1)     When a punishment is imposed, the following should primarily be taken into account: 1.     The importance of the interests against which the offence was perpetrated. 2.     The scope of the damage inflicted. 3.     The danger which the offence created, especially when considering when, where and how it was perpetrated. 4.     The age of the perpetrator. 5.     The perpetrator’s recent behaviour. 6.     The strength of the perpetrator’s intent. 7.     The purpose of the offence. 8.     The perpetrator’s behaviour after the perpetration of the offence. 9.     Whether the perpetrator has divulged information which has been of substantial assistance in investigating the offence, the involvement of other persons in the offence or other offences. (2)     If the offence has been committed in collaboration [with others], the punishment shall, as a general rule, be increased. (3)     If the offence has been perpetrated against a man, woman or child close to the perpetrator, and their relationship has increased the seriousness of the offence, the punishment shall, as a general rule, be increased.” C.     The Criminal Procedure Act no.   88/2008 ( Lög um meðferð sakamála ) 37.     The relevant provisions of the CPA, as in force at the material time, read as follows: Section 31 “... (2)     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 section   32 and does not wish to have counsel appointed, or if the defendant wishes to represent him/herself, cf. section 29. (3)     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 “(1)     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 “(1)     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 “(1)     When documents are 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 document collection shall decide and rule on matters concerning such collection. (2)     If circumstances so warrant while documents are being collected before another court, a party can request that additional documents be collected there than had originally been requested. The judge in question shall decide whether such a request is granted.” Section 141 “(1)     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 “... (2)     The stage in the processing of the case at which statements, objections and evidence are presented makes no difference.” Section 196 “(1)     With the limits arising from other provisions of this Act, an 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 [initially] brought before the District Court. (2)     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. (3)     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 “(1)     The Supreme Court can pronounce a judgment dismissing a case from the Court due to flaws in [the case’s] 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 “... (3)     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 “... (2)     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. (3)     Should the Supreme Court consider that the conclusion of a District Court concerning the evidentiary value of oral testimony in court may be incorrect so as to materially affect the outcome of the case, and the witnesses or defendant in question have not given oral testimony before the Supreme Court, the Supreme Court may quash the judgment of the District Court as well as its procedure to the extent necessary for oral testimony to be given before the District Court, and for the case to be resolved anew. Should a District Court judgment be quashed in such a manner, three judges shall deal with the case in a new trial before the District Court and they may not be the same judges as previously dealt with the case.” 38.     Sections 222 to 224, included in Chapter XXXV of the CPA, entitled “Procedural fines”, as in force at the time of the facts, read as follows: Section 222 “(1)     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. (2)     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 “(1)     The prosecutor, defence counsel or legal adviser may be fined for: a.     intentionally causing undue delay in a case; b.     violating a prohibition, under section 11(1) or (2); c.     making indecent written or oral remarks before the court concerning the judge or other parties; d.     otherwise offending the dignity of the court by their conduct during a hearing. (2)     The defendant or other parties testifying before the court may be fined for offences listed in items (b), (c) and (d) above. (3)     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 section 11(1) or (2) [2] , for disregarding a judge’s order to maintain order during a court’s hearing, or for otherwise behaving in an inappropriate or indecent manner. (4)     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, he or she may decide to reprimand the violator instead of imposing a fine. (5)     The Supreme Court may impose a fine on the prosecutor or defence counsel, or both, for making a groundless appeal. Furthermore, the prosecutor, defence counsel or legal adviser 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 relevant.” Section 224 “(1)     Fines in respect of the prosecutor, the defendant, defence counsel or legal advisers shall be determined when a judgment in a case is delivered. If the case is concluded in a different manner, fines against those parties shall be determined in a ruling. (2)     Fines imposed on parties other than those named in the first paragraph of this section shall be determined in a ruling as soon as the offence occurs.” D.     The Civil Procedure Act no. 91/1991 ( Lög um meðferð einkamála ) 39 .     Chapter XXII of the Civil Procedure Act, entitled “Procedural fines”, as in force at the time of the facts, reads as follows: Section 134 “(1)     The judge shall determine fines under the rules of this Chapter on his or her own initiative; the fines are to be paid to the Treasury. (2)     If punishment is also prescribed in other legislative acts for offences covered in this Chapter, this may be imposed in another court action, irrespective of the decision to impose a procedural fine.” Section 135 “(1)     Fines may be imposed on parties for: (a)     bringing an action unnecessarily, (b)     placing the opposing parties, without due cause, in a position in which it was necessary for them to bring an action, (c)     intentionally causing unnecessary delay in a case, (d)     knowingly making incorrect demands, assertions or objections, (e)     improper written or oral comments in court about the judge, the opposing party, the opposing party’s represe