By Agnė Andrijauskaitė, LL.M (PhD Researcher at German University of Administrative Sciences Speyer and Vilnius University)
The year of 2020 ended with an epic battle over admissibility taking place in Strasbourg. More precisely, the Grand Chamber of the European Court of Human Rights (ECtHR) has passed a judgment in the case of Gestur Jónsson and Ragnar Halldór Hall v Iceland concerning fines imposed on two Icelandic lawyers for displaying contempt of court. This case – yet again – has raised a question on which fines should fall within the criminal scope of Articles 6 and 7 ECHR. Put otherwise, the ECtHR has had the opportunity to refine the scope of the so-called Engel criteria anew. These criteria were developed as early as the ‘70s in order to combat the ‘mislabelling’ tendencies and allow the ECtHR to afford the protection of the Convention to sanctions of punitive and deterrent nature – regardless of their domestic classification – autonomously. Such protection, however, was not warranted in this particular case because the impugned fines enabling a court to sanction the applicants for their contempt of court were deemed ‘more akin to the exercise of disciplinary powers’ as contrasted with the ‘classical’ criminal measures. This contribution shall seek to decipher the rationale behind these measures and whether such a stance does not overly dilute individual rights. It will argue that the current judgment is a consistent logical extension of previous teachings of the ECtHR, in which fines devised to ensure orderly administration of justice found no place under the criminal limb of Article 6 ECHR. In fact, there are valid reasons as to why they should not be ‘upgraded’ to criminal measures under the ECHR and be rather accepted as ‘sui generis’.
The Facts of the Case
The applicants were the defence counsels appointed in a criminal case concerning fraud and market manipulation within the context of the 2008 global financial crisis and the subsequent collapse of Iceland‘s largest banks. As it transpired, they had locked horns with the District Court of Reykjavik over the amount of time necessary to prepare for the court’s hearing and exercise their defence duties in, what seemed to be, a comprehensive and complex criminal case. In more precise terms, the applicants and the judge had exchanged several communications during the preparation for the trial phase, in which the applicants requested more time to study the evidence and postpone the approaching hearing on the merits of the case. This was not granted by the respective judge and the applicants subsequently wrote a letter to the District Court arguing that they, for reasons of conscience, were unable to continue to perform their duties as defence counsels and asked their mandate to be revoked. The latter request was not granted either and the applicants ended up not showing up for the scheduled hearing of the case resulting in the District Court having to appoint new defence counsels, which, in turn, prolonged the duration of proceedings.
This whole tug-of-war between the defence counsels and the District Court culminated in the latter fining them for intentionally causing undue delay and being in contempt of court through their conduct under the Icelandic Criminal Procedure Act (‘CPA’). These fines were imposed in absentia when a new hearing on the merits of the case finally took place and amounted to approximately 6200 euros each. Apparently, no upper statutory limit to the fines was stipulated under Icelandic law and the impugned fines were ten times higher than the fines imposed in previous domestic cases. The applicants subsequently appealed against the decision to the Icelandic Supreme Court claiming that their fair hearing guarantees under Article 6 (1) and (3) ECHR had been undermined, among other things. The Supreme Court considered the appeal in an oral hearing and acknowledged that the handling of the applicants’ case was flawed but has declined to refer back the case for a fresh hearing because no such possibility was stipulated by the domestic provisions.
The main bone of contention in this case was whether Article 6 ECHR should have been applied to the dispute under its criminal limb. The Chamber found it to be applicable and the Grand Chamber decided to reconsider the same question following the request submitted by the applicants.
In order to derive an answer to the said question, the Grand Chamber firstly provided an overview of its previous case law in the contempt-of-court proceedings. It noted that the applicability of Article 6 ECHR has been granted in a versatile fashion in such cases, depending on particular circumstances. Among them, the possibility of imprisonment and the entry on the criminal records – as in other ‘punitive’ cases dealing with the Article 6-guarantees – were factors militating strongly in favour of bringing the matter into the ‘criminal sphere’. Whereas the following factors ran counter to it: the non-substantial size of the impugned fine or its correspondence to the minimum provided by domestic law; a ceiling on the fine provided by domestic law; the possibility of appeal against such sanctions, etc. (§ 82).
The ECtHR then went on to apply the Engel test to the instant case. This test entailed examining the legal classification of the offence under national law (i), the very nature of the offence (ii) and the degree of severity of the penalty that the applicants risked incurring (iii) – all of which were alternative criteria. The ECtHR did not find the offence in question to be classified as ‘criminal’ under domestic law. Even though it was stipulated by the CPA, it was set out in Chapter entitled ‘Procedural fines’ and resembled those known in the civil procedure. Regarding the second criterion, the ECtHR noted that ‘the fine imposed on each of the applicants was … [based] on a provision addressed to a specific category of people possessing a particular status’ (§ 87). The basis of such provisions derives from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings (§ 89). The ECtHR also emphasized the special role that the lawyers have in the administration of justice, which, among other things, entails a number of duties, particularly with regard to their conduct (§ 88). Despite the following considerations and the seriousness of the breach of the professional duties displayed by the applicants, the ECtHR was unable to conclude whether their offence was criminal or disciplinary in nature. For this reason, the ECtHR turned to examining the nature and degree of severity of the penalty – as the last criterion – and concluded that the penalty imposed could neither lead to imprisonment nor was entered in the criminal records. Hence, it lacked the severity necessary for bringing the matter under the criminal sphere (§ 97).
In addition to rejecting the applicants’ complaint under Article 6 ECHR as being incompatible ratione materiae, the ECtHR was also confronted with the remainder of the complaint under Article 7 ECHR. Several issues came to the fore in this regard – the applicants were convicted when they were no longer defence counsels, a maximum ceiling of the fines imposed on them was lacking in the domestic law and they were ten times higher than the highest fine previously imposed. All of these factors, allegedly, made the impugned fines unforeseeable and breached the principle of legality. However, following the reasons set out above, the ECtHR found that the fines could not be considered a ‘penalty’ within the (autonomous) meaning of Article 7 ECHR.
Two concurring opinions and one dissenting opinion were given in this case. Judge Spano in his concurring opinion pointed out that the Government did not dispute the admissibility of the applicants’ complaint under the criminal limb of Article 6 (1) ECHR before the Chamber and only did so before the Grand Chamber. Having ‘the benefit of the hindsight’, this national judge now supported the majority’s finding that the complaint was inadmissible.
In another concurring opinion, Judge Turković expressed her view that questions related to Article 7 ECHR would have been of real interest in this case, had the ECtHR found the complaint to be admissible. In more precise terms, this judge questioned whether the domestic provision, on whose basis the applicants were fined, was compliant with the lex certa requirement and whether the punishment was foreseeable for the applicants. In her opinion, requiring absolute clarity by laying down the maximum penalty in advance protects the rights of the defendants and their interest in legal certainty, and achieves justice, equal treatment, and consistency in sentencing.
Finally, in their Joint Dissenting Opinion Judges Sicilianos, Ravarani and Serghides argued that an alternative line of reasoning should have been adopted in the present case. They, among other things, claimed that until now the ECtHR has not called into question the classification of an offence when the latter was classified as criminal under domestic law.* According to them, the ECtHR should have shown deference towards this classification and recognized the offence at issue as criminal in nature, especially considering that the fine imposed was high and had no statutory ceiling. The judges also expressed their regret that the ECtHR had opted to not address the real issue of interest in this case, namely the question of compliance with the requirements of Article 7 ECHR.
In this case, two major ‘forces’ were at play – first, the ‘punitive and deterrent’ character of the penalties imposed on the applicants that usually grants the application of Article 6-guarantees and that was inevitable in the present case and, second, the interest of the Member States to ensure a smooth administration of justice – a value maintained by means of disciplinary sanctions falling outside the scope of Article 6 ECHR. Additional questions stemmed from Article 7 ECHR stipulating the principle of legality of punishment as the maximum statutory ceiling of these penalties were missing. Even though the ‘punitive and deterrent’ character of the penalties imposed, as opposed to, say, exclusively ‘remedial’ or ‘preventive’ purposes, was present in this case, another important variable was lacking. Namely, the general scope of the legal provision prescribing the offence, i.e. the requirement for a rule to be directed not towards a given group possessing a special status but towards all citizens (for example, towards all road-users) developed as early as the Öztürk case. The fact that the legal provision in this case was addressed to a specific category of people possessing a particular status alluded to the ‘disciplinary’ character of the measure.
‘Disciplinary’ or ‘professional’ sanctions are a different beast compared to both criminal and administrative sanctions. They presuppose not only the special status of the transgressing persons (civil servants, soldiers, prisoners and the like) but also a ‘special relationship of obligation’ stretching far beyond the ‘ordinary’ duties of a citizen. These sanctions are primarily aimed at ensuring the (proper) functioning of the civil service or protecting citizens from inadequate services as well as enforcing rules of a particular organization. Although the meta-rationale of these two types of sanctions are different, the potential for confusion is never too far and is exacerbated by the jurisdictional work of professional organisations. The reasons for this ‘conceptual blur’ may partially be attributed to the historical development of these legal institutions. More precisely, disciplinary law used to belong to the domain of special criminal law and forged its own path relatively late (U. Lambrecht, Strafrecht und Disziplinarrecht: Abhängigkeiten und Überschneidungen (1997), pp. 24–26). Born in the context of learned professions, the notion of disciplinary proceedings was primarily aimed at getting rid of unsuitable members of a particular profession, i.e. could have been brought only for a conduct of a serious nature. Only when professional bodies incrementally came to see themselves as guardians of the public interest, the range of offences and sanctions lengthened and diversified (see further in B. Harris/A. Carnes/G. Byrne, Disciplinary and Regulatory Proceedings , pp. 66 et seq.).
In the present case, the applicants were fined in their professional capacity and the ultimate aim of these fines were to ensure the proper administration of justice. The legal basis of the offence did not potentially affect the whole population but concerned a limited number of people taking part in the concrete proceedings (for a contrary conclusion see Demicoli and Weber cases). Thus, the ECtHR continued the line of reasoning expressed in the previous contempt-of-court cases concerning no deprivation of liberty (see Ravnsborg and Veriter cases). In this way, the ECtHR has paid deference to the obvious needs of the Member States to attain an efficient safeguarding of all the interests behind the disciplinary sanctions depicted above. This was, among other things, demonstrated by the ECtHR performing a comparative law study and finding out that such sanctions can be issued by the relevant Bar Association or other similar specialised regulatory bodies in the majority of the Member States (§§ 54–60) and noting that ‘rules enabling a court to sanction disorderly conduct in proceedings before it are a common feature of legal systems of these states’ (§ 89).A contrary outcome of the case could have been too much an invasion into the ‘internal workings’ of the Contracting States. Surely, they have signed up to protect fundamental rights (Art. 1 ECHR) but not to being precisely told how to arrange the performance of their very basic functions necessitating tools that ensure the compliance therewith.
As indicated above, some judges have expressed regret in their concurring and dissenting opinions that the ECtHR has missed a good opportunity to examine the complaint under Article 7 ECHR. According to them, it would have been ‘of real interest’ to clarify whether the lex certa of fines was upheld in the particular case since there were strong indications speaking against it. This is not the first opportunity when the ECtHR forgoes the opportunity to explicate the nulla poena side of the legality principle within the punitive context. In the Janosevic case, for example, the ECtHR made an observation that the tax penalties at issue ‘have no upper limit and may come to very large amounts’ but it did not go on to assess the compatibility of this fact with the ECHR (since it was not the matter of the dispute) (§ 69). Furthermore, in Valico case the ECtHR noticed that the domestic courts could not deviate from administrative penalties fixed ex lege but again paid deference to this as ‘a choice of legislature’.
This question is by no doubts vexed as the failure to stipulate an upper limit of a penalty stands in a clear tension with the foreseeability requirement (also sometimes referred to as ‘fair notice’). The higher the stakes for the individual, the more significance it gains. Legal subjects should at all times be able to ‘calculate’ the ‘costs’ of their transgressions and base their behaviour on that. It is furthermore mutatis mutandis required from the ‘soft law’ of the CoE, i.e. Principle 1 of the Recommendation No. R (91) 1 on administrative sanctions stipulating that ‘the applicable administrative sanctions and the circumstances in which they may be imposed shall be laid down by law’. Its Explanatory Memorandum clearly states that ‘Legislation is required, at least to lay down the scale of pecuniary sanctions applicable …’ (see further in Council of Europe [ed.], “The administration and you” , pp. 455–466).
At the same time, the application of Article 7 ECHR appears to be reserved for the gravest type of punishment in the case law of the ECtHR. The required ‘punitive connotation’ or ‘punitive regime’ needs to be particularly strong when it comes to its application. This is due to the fact that this provision is modelled on criminal law logic as well as due to its non-derogability (see further in A. Andrijauskaitė, “The Principle of Legality and Administrative Punishment under the ECHR: A Fused Protection”,  Review of European Administrative Law 4, p. 42 [pp. 33–51]). While the legal status of the applicants were clearly affected by the uncertainty stemming from the lack of legislative provisions defining the maximum size of penalties that they ran a risk of incurring, it is hardly true that these penalties have befallen the applicants ‘out of the blue’. Quite the opposite: the applicants were professionals acting in a field, of which they possessed a specialized knowledge. The legal basis for their liability might not have been impeccable but there was one in the domestic law. Even more so, there was a substantial body of domestic case law , by which this legal basis was elucidated. Thus, it is hardly convincing that the legal consequences that the applicants eventually incurred were completely unforeseeable.
The answer to the question whether a more pro persona approach should have been adopted in this case is, of course, a matter of perspective. In the area of human rights he who can do more cannot necessarily do less – as put by the ECtHR itself, and the effects of the professional sanctions on the individual may be debilitating. However, even if the ECtHR had opted for admitting the case, its prospect on the merits was dubious to start with as was demonstrated by the Chamber‘s judgment. It is evident that the right to an oral hearing – the principal concern of the applicants – was rectified upon the (domestic) appeal. Moreover, the ECtHR seems to be lax on this requirement as the landmark Jussila case of 2006 has demonstrated. In fact, the ECtHR is ready to dispense with the duty to hold an oral hearing in cases dealing with the ‘penumbral’ punishment as opposed to the hard-core criminal measures.
It is also true that the remainder of the submission could have shed light on some pressing legal questions under Article 7 ECHR. However, the primary task of the ECtHR is to adjudicate on the concrete dispute submitted before it (Article 32 ECHR). Therefore, the judgment should be accepted for what it is and not for what it might have been, had the judges gone down the hypothetical road of filling the gaps in the legal knowledge. The potential of such kind is not an argument enough to defy other legitimate and countervailing forces. In this case, it was the need of the Member States to ensure the smooth service of the learned professions and shield the administration of justice from obstruction that took precedence.
[*] This is not correct because even if the national legal classification designates a certain measure as ‘criminal’ this is not necessarily decisive for the ECtHR since it does not conflate a legal classification with a broader, autonomous concept of the ‘criminal charge’. For example, in the case of Escoubet, the ECtHR also did not establish that a sanction fell within the scope of Article 6 ECHR, even though it was stipulated by the criminal statute of a respondent state.