SIGURÐUR EINARSSON AND OTHERS v. ICELAND

Judgment Date04 June 2019
ECLIECLI:CE:ECHR:2019:0604JUD003975715
Respondent StateIslandia
Date04 June 2019
Application Number39757/15
CourtSecond Section (European Court of Human Rights)
CounselWERLAUFF E.
Applied Rules6;6+6-3-b;6+6-3-d;6-1;6-3-b;6-3-d;35;41;46;46-2

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

  1. 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.

  1. 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 Icelands 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.

  1. 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 Kaupþings 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 Qatars 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 BTs account with Kaupþings subsidiary, KBL. Neither the loan to GA nor the loan to BT had had the necessarily approval of Kaupþings Board Credit Committee, and no or insufficient securities had been provided for them.

10. On 9 December 2008 the...

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