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You are here: BAILII >> Databases >> European Court of Human Rights >> JÓN KRISTINSSON v. ICELAND - 12170/86 [1990] ECHR 4 (1 March 1990) URL: http://www.bailii.org/eu/cases/ECHR/1990/4.html Cite as: (1991) 13 EHRR 238, [1990] ECHR 4

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In the Jón Kristinsson case*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court**, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr N. Valticos,

Mr S. K. Martens,

Mrs E. Palm,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 22 February 1990,

Delivers the following judgment, which was adopted on that date:

_______________

Notes by the Registrar:

* The case is numbered 13/1989/173/229. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of corresponding originating

applications to the Commission.

** The amendments to the Rules of Court, which entered into force

on 1 April 1989, are applicable to the present case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 April 1989,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 12170/86) against the Republic of Iceland

lodged with the Commission under Article 25 (art. 25) by an

Icelandic citizen, Mr Jón Kristinsson, on 10 April 1986.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Iceland recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr Thór Vilhjálmsson, the elected judge of Icelandic nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 29 April 1989, in

the presence of the Registrar, the President drew by lot the names

of the other five members, namely Mr J. Cremona, Mr F. Matscher,

Mr N. Valticos, Mr S. K. Martens and Mrs E. Palm (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, after consulting, through the Registrar, the

Agent of the Icelandic Government ("the Government"), the Delegate

of the Commission and the lawyer for the applicant decided on

2 August 1989 that it was not necessary at that stage for memorials

to be filed (Rule 37 para. 1). He had been informed on

25 July 1989 by the Agent of the Government that negotiations were

shortly to take place with a view to achieving a friendly

settlement of the case. Pending the outcome of such negotiations

the oral hearing was provisionally scheduled by the President for

19 February 1990.

5. On 28 December 1989 the Agent communicated to the Registrar

the text of an agreement signed by the Minister for Justice of

Iceland, Mr Öli T. Gudbjartsson, and by Mr Eríkur Tómasson on

behalf of the applicant; he asked the Court to accept it and to

strike the case out of its list. As a result the hearing was

cancelled.

On 22 January 1990 the Government filed further documents relating

to the friendly settlement.

6. The Delegate of the Commission was consulted by the Court

(Rule 49 para. 2) and replied on 16 January 1990 that he had no

comments to make as regards either the striking of the case out of

the list or the terms of the friendly settlement.

7. On 22 February the Court decided to dispense with a hearing

in this case, having established that the conditions for this

derogation from its usual procedure were met (Rules 26 and 28).

AS TO THE FACTS

8. Two police reports drawn up in 1984 alleged that on 20 and

26 June of that year, whilst driving his car, the applicant had

committed offences against the Traffic Act: exceeding the speed

limit on the first occasion and failure to observe a stop sign on

the second.

9. These reports were transmitted to the chief of police of

Akureyri, who, under Article 32 of the Code of Criminal Procedure

(Act no. 74 of 21 August 1974), was also the town magistrate

(Baejarfogeti).

It fell to the chief of police to decide whether a preliminary

criminal investigation should be set in motion. However, having

regard to the amount of the fine he thought might be imposed

(12,000 Icelandic crowns at most) and acting pursuant to

Article 112 of the Code of Criminal Procedure, he offered the

applicant the possibility of settling both cases by paying, within

two weeks, a fine of 1,720 Icelandic crowns. This offer was

contained in two letters, dated 10 and 12 July 1984 and signed by

Mr S.J., acting as deputy chief of police.

10. Mr Jón Kristinsson, who had made certain objections to the

police concerning their allegations, did not return the letters

with his signature and thus declined the offer. He was

subsequently summoned to appear before the Akureyri District

Criminal Court. According to Article 4 of the Code of Criminal

Procedure, the functions of District Criminal Courts outside

Reykjavik were performed by the town magistrate, whose task it was

to conduct the investigation, hear the case and pass judgment.

11. On 30 August 1984 the applicant appeared before the

above-mentioned Mr S.J., who on this occasion was representing the

town magistrate in his capacity as district court judge. The

applicant refused to settle the case in court and repeated the

objections he had made to the police. Mr S.J. subsequently heard

evidence from the police officers involved. Once the preliminary

court enquiry was completed, he transmitted, on 7 November, the

case-file to the public prosecutor.

12. On 23 November 1984 the public prosecutor issued an

indictment against the applicant for the two alleged offences

against the Traffic Act and referred the cases to the Akureyri

District Criminal Court for trial. The applicant appeared before

the court on 4 December, when the indictment was served on him and

he was given the opportunity to comment on the evidence of the

police officers. At his request, Mr S.J., acting again as district

court judge, adjourned the hearing. It was resumed on 10 December

and, on 27 December, Mr S.J. delivered judgment in open court. The

applicant was found guilty on both counts, sentenced to a fine of

3,000 Icelandic crowns and ordered to pay costs.

13. The applicant appealed to the Supreme Court of Iceland,

submitting that the inquiry had been inadequate and that the case

had not been heard by an impartial judge since Mr S.J. had been

involved in it both as deputy chief of the police and as deputy

district judge. He alleged a violation of Articles 2 and 61 of the

Icelandic Constitution and of Article 6 (art. 6) of the Convention.

On 25 November 1985 the Supreme Court acquitted the applicant of

the charge of non-observance of the stop sign, but upheld the

District Court's judgment as regards the other offence. It imposed

on him a fine of 1,500 Icelandic crowns and ordered him to pay the

costs of both proceedings. As to the alleged partiality of the

judge in question, the Supreme Court stated:

"In the Icelandic court system, judicial powers in district courts

outside Reykjavik are vested in town and county magistrates who

serve collaterally as chiefs of police. The District Criminal

Court's decision cannot be set aside on the ground that the deputy

town magistrate of Akureyri tried the case in question.

Furthermore, no specific facts have been established which would

disqualify the town magistrate or his deputy."

14. On 19 May 1989 the Icelandic Parliament adopted an Act

(no. 92/1989) on the Separation of District Judicial and

Administrative Powers, which is due to enter into force on

1 July 1992. Under this Act, the administration of the police will

be entrusted to district executive agents, to be called

"magistrates" (syslumadur), and criminal cases will be dealt with

by district court judges, independent of the executive.

On 9 January 1990 the Supreme Court of Iceland quashed a judgment

of the Arnessysla District Criminal Court and referred the case

back for re-trial, on the ground that the judge concerned was both

deputy county magistrate and head of the district police which had

conducted the investigation. In its decision, the Supreme Court

took account of the Commission's report in the present case.

As a result, the President of Iceland, acting on the advice of the

Minister for Justice, issued on 13 January a Provisional Act which,

as an interim measure, creates new posts of district court judge.

PROCEEDINGS BEFORE THE COMMISSION

15. In his application of 10 April 1986 to the Commission

(no. 12170/86), Mr Jón Kristinsson alleged that he had not been

tried by an impartial tribunal within the meaning of Article 6

para. 1 (art. 6-1), since the judge who had convicted him had

previously dealt with the case in his capacity as deputy chief of

police.

16. The Commission declared the application admissible on

13 October 1987. In its report of 8 March 1989 (Article 31)

(art. 31), it expressed the unanimous opinion that there had been

a violation of Article 6 para. 1 (art. 6-1). The full text of its

opinion and of the separate opinion contained in the report is

annexed to the present judgment*.

_______________

* Note by the Registrar. For practical reasons this annex will

appear only with the printed version of the judgment (volume 171-B

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

17. The agreement concluded on 28 December 1989 between the

Government and the applicant (see paragraph 5 above) contains a

summary of the facts and refers to Act no. 92/1989

(see paragraph 14 above). It then records the parties' agreement

that the dispute should be settled on the following terms:

"1. That the Icelandic State Treasury reimburse Mr Jón Kristinsson

for his fine and the costs of the case he has paid, Icel.

Kr. 26,650, with interest as from 12 May 1986, Icel. Kr. 53,353, or

a total of Icel. Kr. 80,003.

2. That the Icelandic State Treasury pay Mr Jón Kristinsson the

costs incurred by him for legal assistance on account of his

application to the European Commission of Human Rights, totalling

Icel. Kr. 461,130 when the financial assistance received by

Mr Kristinsson from the European Commission of Human Rights has

been taken into account.

3. That Mr Jón Kristinsson undertakes, following the payment of

the above amounts and without receiving damages or any further

payments from the Icelandic State Treasury, not to prosecute the

case now before the European Court of Human Rights any further, and

not to take any other legal action against the Government of

Iceland before Icelandic or international courts on account of the

facts described above.

4. That Mr Kristinsson accepts that the Icelandic State Treasury

pay the above payments immediately, provided the European Court of

Human Rights agrees to strike the case, referred to it by the

European Commission of Human Rights, against the Government of

Iceland out of its list in accordance with Rule 49 para. 2 of the

Rules of Court.

5. That the Icelandic Minister for Justice will request the

Public Prosecutor of Iceland to have a note entered into the State

Criminal Register relating to Jón Kristinsson, stating that the

Government of Iceland have today, on account of the stand taken by

the European Commission of Human Rights with regard to his

application, concluded a settlement with him providing for refund

of the amounts he was ordered to pay to the Icelandic State

Treasury by the judgment of the Supreme Court of Iceland

of 25 November 1985.

6. That the obligations here undertaken by the Government of

Iceland, on the one hand, and Mr Jón Kristinsson, on the other, be

automatically cancelled in case the European Court of Human Rights

witholds its approval as referred to under (4) above." (English

translation provided by the Government)

18. The Court takes formal note of the friendly settlement

reached by the Government and the applicant, as well as of the

absence of any objection on the part of the Delegate of the

Commission. In view of its responsibilities under Article 19

(art. 19) of the Convention, it would be open to it to disregard

this settlement and proceed with the consideration of the case if

a reason of public policy appeared to necessitate such a course

(Rule 49 para. 4). However, the Court, having regard to the

changes in Icelandic law and case-law mentioned in paragraph 14

above and to its case-law on the matter (see Piersack judgment of

1 October 1982, Series A no. 53, De Cubber judgment

of 26 October 1984, Series A no. 86 and Hauschildt judgment of

24 May 1989, Series A no. 154), sees no such reason.

Accordingly, it is appropriate to strike the case out of the list

pursuant to Rule 49 para. 2.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2 of the Rules of Court on 1 March 1990.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar