The Case of Gestur Jónsson and Ragnar Halldór Hall v Iceland: Between Two Paradigms of Punishment

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’.

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Correia de Matos v. Portugal: Fragmented protection of the right to defend oneself in person

Dr. Dorothea Staes (affiliated researcher, The Perelman Center for Legal Philosophy, ULB, Belgium and trainee at the European Commission)

In the Grand Chamber judgement Correia de Matos v. Portugal of 4 April 2018, the European Court of Human Rights (hereinafter: the Court) decided by a majority of nine votes to eight that the right to a fair trial was not violated with regards to the applicant, who was not allowed to conduct his own defence in the criminal proceedings against him. The blog focuses on how this judgement upholds fragmentation between the interpretation of human rights by the Court and the United Nations Human Rights Committee (hereinafter: HRC). It also develops arguments as to why harmony – instead of fragmentation – should have been the preferred option. Continue reading

Van Wesenbeeck v. Belgium: Balancing defence rights with law enforcements’ possibilities to apply observation and infiltration methods

By Sofie Depauw, PhD Researcher at Ghent University, Institute for International Research on Criminal Policy (IRCP).

With its judgment in the case of Van Wesenbeeck v. Belgium, the Chamber of the European Court of Human Rights has taken a stance with regard to the scope of defence rights in case of observation and infiltration methods. More specifically, the Court judged that, despite the lack of access to the confidential case file and the applicant’s inability to examine undercover officers, the right to a fair trial had not been violated. According to the Court, the supervisory role of the Indictments Division constituted a sufficient procedural guarantee to compensate for both interferences. Whereas it remains to be seen whether this judgment will hold, as the case can still be referred to the Grand Chamber, it is however interesting to take a closer look at the Court’s considerations in this regard and the dissenting opinion relating to the right to examine witnesses. Continue reading