ECHR Invents a Law: An Icelandic Case

Culture - April 15, 2024

The European Court of Human Rights in Strasbourg has, as I have argued in two previous articles, gone far beyond its authority and invented new rights. Its original and only assignment was and is simply to review applications from citizens in the signatory countries of the European Convention on Human Rights and to decide whether in their cases the rights laid out in the Convention had been violated. In response to a recent application from an association of elderly Swiss women worried about global warming, the ECHR interpreted Article 8 of the Convention on the ‘right to respect for private and family life’ as including the ‘right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life’. There is no basis for this new right in the Convention or in the Court’s previous practice (case-law). Then, in response to an application some years ago from an Icelander convicted of a crime on three levels by nine judges, one of whom had been appointed against the recommendations of an evaluation committee, the ECHR interpreted Article 6 of the Convention on the right to a fair trial by impartial judges as including the right of a convicted criminal to be heard by judges who were not only qualified but deemed ‘most qualified’ by an evaluation committee. The one judge in his case whom an evaluation committee had not included, before her appointment, in a list of ‘most qualified’ applicants submitted to the Minister of Justice, had nevertheless been deemed qualified by the Committee, while the law only required in such cases that Parliament would confirm the appointment, which it duly did. She was therefore a lawful judge. Again, there is no basis for this new right in the Convention or in the previous practice of the ECHR (case-law). In both the Swiss and the Icelandic case the Strasbourg Court ignored important rules under which it is supposed to operate: the Principle of Subsidiarity, that political issues should be resolved at the most immediate or local level possible, and the Margin of Appreciation, that each signatory country to the Convention should have some discretion in applying and interpreting its articles and protocols. Here I will discuss one example where the ECHR did not invent a right, but where it was an accomplice in inventing a law used to convict an innocent person. Thus, the Court broke the venerable legal principle of no conviction without law, nulla poena sine lege. I have written about this case before, but I would like to use this occasion to provide a summary.

The Denial of Access to Courts

The applicant was Geir H. Haarde, Leader of the centre-right Independence Party and Prime Minister of Iceland in 2006–2009. After the traumatic collapse of the whole Icelandic banking sector in October 2008, Geir took the initiative to have the causes of the collapse investigated. A Special Investigation Commission, SIC, was appointed, composed of a Supreme Court Judge, the Parliament Ombudsman, and a newly-graduated teacher of finance. The SIC conducted its investigation in secret unlike similar committees in the United Kingdom and the United States. Its members demanded and got immunity from any possible charges brought against them, although the Icelandic Constitution stipulates that every citizen is entitled to have his or her rights and obligations determined by an independent and impartial court of law, following a fair trial and within a reasonable time. Thus possible targets of the investigation were in effect denied access to a court.

The SIC delivered its report in April 2010. It found the bank collapse to have been the consequence of the rapid growth of the banking sector in the preceding few years. This was not a genuine explanation, however, but rather a description of what had happened. What it really amounted to was the observation that the Icelandic banking sector fell because it was vulnerable, which is a bit like saying that a piece of glass breaks because glass is breakable. The SIC did not seriously explore the possibility that the Icelandic bank collapse was a ‘black swan’: the unintended consequence of several circumstances and decisions combining in an unexpected way.

Retroactive Application of Law

On the basis of the law passed about the SIC in late 2008, two months after the collapse, in its report it accused three former government ministers, including Geir H. Haarde, and four former high officials of negligence on several counts in the course of events leading to the bank collapse, although it noted that no causal connection could be established between this alleged negligence and the collapse itself. Since the ministers were however not accused of negligence in the traditional, narrow legal sense of the word, but in a new and much wider sense, this was a clear case of a retroactive application of law.

The State Prosecutor decided not to bring any criminal charges against the four officials accused by the SIC of negligence. Under Icelandic law, a special Impeachment Court (Landsdomur) would however hear possible charges against government ministers. This Court was composed of eight laymen, elected by Parliament, and seven legal experts, nominated by the Supreme Court (five), the Reykjavik District Court (one) and the Law Faculty at the University of Iceland (one, the Professor of Constitutional Law). Hence, the Icelandic Parliament appointed a special committee to review the report by the SIC, in particular to decide if there had been any possible misconduct by government ministers. Subsequently, the majority of the parliamentary review committee recommended bringing charges against the three ministers accused by the SIC of negligence as well as against the Foreign Minister in 2007–2009, who had been leader of one of the two government parties, the Social Democrats.

Indictment without an Investigation

While the majority of the parliamentary review committee adopted the five specific charges of negligence in the SIC report, it added a sixth charge which the SIC had already considered and decided not to include: that Prime Minister Geir H. Haarde and the other government ministers had not put the bank crisis on the formal agenda at government meetings, as they should have done according to the Icelandic Constitution which stipulates that ‘important State matters’ should be discussed at cabinet meetings. Subsequently, Parliament voted separately on the charges proposed against the four government ministers, as is the custom if somebody asks for separate votes on a multipart proposal; otherwise, it is usually voted on as a single proposal. All members of the Independence Party voted against any impeachment, all members of the ‘Movement’ and the Left Greens voted for impeachment of all four ministers, while the Progressive Party and the Social Democrats Party split. The result was that only Geir H. Haarde was impeached. The three other ministers were spared, one from the Independence Party and two from the Social Democrats.

The parliamentary review committee did not conduct any independent investigation, as Icelandic law requires in ordinary criminal cases. It just restated and adopted the findings of the SIC although they were about negligence according to a law passed after the bank collapse. Moreover, the committee added its sixth charge—on the alleged negligence to put the bank crisis on the formal agenda of cabinet meetings—without conducting any independent investigation into it, such as the original intent of the constitutional stipulation, the practice since 1920 when the stipulation was introduced, and what took place at cabinet meetings before the collapse. After Parliament had voted to impeach Geir H. Haarde, a special prosecutor was appointed. She fought and won a case before the courts to gain access to all Geir’s emails as Prime Minister. Since she found nothing incriminating in those emails, her arguments before the Impeachment Court were solely based on the findings of the SIC with the additional charge about the cabinet meetings, without any substantial arguments for that charge, let alone possible responses by the defendant to it.

Irregularities in Appointment of Judges

It should be noted, although not much discussed at the time, that there were several irregularities in the appointment of some of the seven legal experts in the Impeachment Court. First, it so happened that one Supreme Court judge was married to the Professor of Constitutional Law at the University of Iceland, and they could not both serve on the Court. It seems that they decided between themselves that it would be the Supreme Court judge who would serve and that his wife would call in a substitute from the Law Faculty. There was however no formal decision made by the President of the Impeachment Court to that effect. Secondly, when the representative of the Reykjavik District Court was during the process appointed to the Supreme Court, he withdrew from the case, while the Icelandic legal tradition is that the same judges would handle cases until they were concluded. For example, the substitute judge from the Law Faculty continued to serve on the Impeachment Court although he was also during the process appointed to the Supreme Court. In neither case was there any formal decision made by the President of the Court.

Thirdly, and perhaps most importantly, one of the Impeachment Court judges, Eirikur Tomasson, had been a fierce political opponent of Geir H. Haarde when they were both young men. He had been the President of the Young Progressives and political assistant to a Minister of Justice from the Progressive Party, whereas Geir had been President of the Young Independents and political assistant to a Minister of Finance from the Independence Party. Eirikur, then Professor of Law at the University of Iceland, had also been one of the applicants for a Supreme Court judgeship in 2004. When the Minister of Justice recused himself, the appointment was assigned to Geir, then Finance Minister, who appointed another applicant, a well-known attorney, citing a recent recommendation of the Supreme Court that more attorneys were needed on the Court. Publicly, Eirikur had not hidden his anger over being bypassed.

There was another reason to doubt Eirikur’s impartiality. He supplemented his professorship in a part-time job as Manager of the Icelandic Composers’ Rights Society which collected royalties for the performance of music and then disbursed them to rights holders. He had kept most of the Society’s substantial assets in money market funds which were not guaranteed by law, unlike bank deposits. When Geir as Prime Minister had proposed a law during the 2008 bank collapse which made depositors priority claimants to bank assets, Eirikur had publicly denounced this as theft from other bank creditors (including investors in money market funds such as his Society). When questioned publicly whether he was fit to sit in judgement over his old political rival, Eirikur Tomasson replied however that he saw no problem in doing so. Geir decided not to make his competence in the case an issue, probably because he expected to be acquitted on all counts.

Conviction without Law

The Impeachment Court issued its judgement in April 2012. Previously, it had unanimously dismissed two charges against Geir H. Haarde and now it unanimously acquitted him of three charges. These five charges were all based on the retroactive accusations by the SIC of negligence. The Impeachment Court split on the sixth charge, that Geir had neglected a constitutional duty to put the bank crisis on the formal agenda of cabinet meetings. Nine of the fifteen judges voted for conviction on this charge, but without any punishment, and with all legal costs assigned to government. Six judges voted for acquittal, noting that the constitutional stipulation on cabinet meetings was introduced in 1920 when Iceland was a monarchy in a personal union with the Danish king who resided in Copenhagen. The Prime Minister usually went alone to Copenhagen twice a year to hold a State Council where the king formally approved laws and important government acts. This stipulation was introduced to ensure that the Prime Minister had a proper mandate from his colleagues. After a republic was established, this stipulation should be interpreted, the minority argued, as referring to matters needing the formal approval of the President in State Council. It had never somehow and mysteriously turned into a general constitutional duty to put all important State matters on the formal agenda at cabinet meetings. Before the Impeachment Court, several ministers in Geir’s government also testified that the bank crisis had often been discussed at cabinet meetings, but that nothing had been put in minutes about them, as they were sensitive subjects.

Although Geir H. Haarde was acquitted of all important charges, he found it hard to accept his conviction on the somewhat peculiar charge of not having put the bank crisis on the formal agenda of cabinet meetings. Therefore he referred the case to the European Court of Human Rights in Strasbourg, arguing that he had not enjoyed his right to a fair trial under the Convention. The principle of no punishment without law had been violated, acording to him, since no law stipulated a general duty by the Prime Minister to put all important matters on the formal agenda of cabinet meetings. The Strasbourg Court decided to hear the case. But shortly afterwards, in late 2013, a close friend and ally of some judges in the Impeachment Court majority and of two of the three SIC members, Robert Spano, also a known left-wing opponent of Geir’s Independence Party, was appointed as the Icelandic judge at the Strasbourg Court. Hard-working, ambitious and agreeable, he soon became a dominant force on the Court. He recused himself formally from Haarde’s case, as he had advised the parliamentary review committee on the matter and publicly defended the majority opinion of the Impeachment Court. Four long years passed. The decision of the Strasbourg Court was only delivered in late 2017. It echoed Spano’s previously expressed opinion that Haarde’s rights had not been violated, since the offence for which he had been convicted had been adequately defined in law. This was however less than plausible, for reasons set out above.

Not Enjoying the Benefit of the Doubt

The interpretation of the constitutional stipulation on which the majority based its conviction was at least doubtful, whereas all doubt should have been decided in Geir H. Haarde’s favour. Moreover, many government ministers had testified that the bank crisis had often been discussed informally at cabinet meetings. Again, some important state matters were not discussed at cabinet meetings. One example was a 1956 revision of the defence treaty between Iceland and the United States. A member of a political party with ties to the Soviet Union was in government and his colleagues excluded him from any sensitive discussions about foreign affairs. Another example was the 2003 joint announcement by Iceland’s Prime Minister and Foreign Minister in support of the military action in Iraq of the United States and other Western powers. The latter example was particularly interesting because one of the judges in the Impeachment Court majority, Eirikur Tomasson, then Law Professor, had argued in a report that the two government ministers had not acted improperly by not consulting their colleagues before the announcement of support.

Geir H. Haarde seems to have been confident that the case against him would be judged solely on its legal merit, both by the Icelandic Impeachment Court and by the European Court of Human Rights in Strasbourg. He therefore did not make the selection process or the individual competence of judges in the Impeachment Court an issue. But in late 2016, it was revealed that three of the judges in the majority convicting Geir, all of them from the Supreme Court, had owned substantial shares in the banks collapsing in 2008. Geir’s decision in 2008 not to try and rescue the banks and instead to make depositors priority claimants to bank assets directly affected shareholders, including those three judges. This became known before the European Court of Human Rights delivered its decision, but it seems not to have influenced it. The only dissenting judge on the Strasbourg Court, Krzysztof Wojtyczek from Poland, accepted however the argument that the Impeachment Court majority had read more into the constitutional stipulation on cabinet meetings than was proper. He could nowhere discern a constitutional obligation of the Prime Minister to hold cabinet meetings on all important State matters. Therefore, the principle of no conviction without law had been violated.

It should also be mentioned that in my recent Icelandic book on Geir H. Haarde’s impeachment I revealed an article which Eirikur Tomasson had published online immediately after the bank collapse, in February 2009, where he put the blame for it on the abuse of executive power. This article had shortly thereafter disappeared from the internet and was not known when Eirikur became a judge on the Impeachment Court. It would certainly have thrown serious doubt over his competence to sit as a judge over the main holder of executive power before and during the bank collapse, the Icelandic Prime Minister.

A Law was Invented

In the case of Geir H. Haarde the ECHR, probably under the baleful influence of Robert Spano, accepted the implausible conclusion of the majority in the Icelandic Impeachment Court that there was a clear constitutional duty of the Prime Minister to put all ‘important State matters’ on the formal agenda of cabinet meetings. Thus it ignored, like the majority in the Impeachment Court, the original intent of the constitutional stipulation on cabinet meetings, the difficulty of defining meaningfully what would be ‘important matters’, the testimony of several ministers in Geir’s government that indeed the bank crisis had often been discussed informally at cabinet meetings, the sensitivity of all information about the serious financial problems of the Icelandic banks (which, if known, would have turned into a self-fulfilling prophecy about their collapse), and the precedents where decisions in ‘important State matters’ had been taken without consulting the whole cabinet, indeed because of their sensitive nature. A law was invented, not found.

Different Motives

This was an extraordinary case. The motives of its chief decision-makers were manyfold, I would suggest. The SIC, Special Investigation Commission, was influenced by the national trauma caused by the bank collapse. Many Icelanders were convinced that serious crimes had been committed before the collapse, not even considering the possibility that it could have been the unintended consequence of several circumstances and decisions. When the SIC could not find evidence of any crimes committed by the government ministers or high officials under investigation, it simply invented a rule about negligence in a wide sense which it applied retroactively to the period leading up to the collapse.

The motives of the members of parliament who voted for impeachment were mainly political. They did not want to see a good crisis go to waste. This was an opportunity to condemn the dominant party in Icelandic politics for many decades, the Independence Party, an opportunity to brand its leadership as a group of criminals.

The motives of the judges in the Impeachment Court majority may to some extent have coincided with the motives of the SIC: to appease public opinion. They almost certainly realised that Geir H. Haarde had not committed any crimes, but they were apprehensive about the impact of a complete acquittal: therefore they convicted Geir on a trivial charge, without any punishment and the assignment of all costs to the state. It was as mild a sentence as possible, if there was to be a sentence. The judges threw a bone to Geir’s accusers.

But also some judges may have wanted to send the Independence Party leadership a gentle reminder that it was not prudent to ignore their recommendations about appointments to judgeships. It was no secret that in Iceland there had long been a struggle about the power to appoint judges. The sitting judges wanted to ensure that they would themselves select any new judges, their future colleagues, and not the Minister of Justice. Geir had provoked their wrath in 2004 when he went against their recommendations in appointing a Supreme Court judge.

A third motive was possibly that some of the Impeachment Court judges had owned substantial shares in the fallen banks and resented the fact that Geir had decided not to try and rescue the banks, but rather to put them into resolution and to give depositors priority over other bank creditors.

A fourth motive was possibly political. The eight judges elected by Parliament all voted strictly on party lines, the four leftwingers for conviction, and the four centre-right people for acquittal. While most of the seven legal experts on the Impeachment Court were probably political moderates, Eirikur Tomasson had been active in politics as a rival of Geir H. Haarde.

Rabbits out of a Hat

Perhaps none of this should be surprising. The 2008 Icelandic bank collapse was a national trauma. In some it brought out the best, in others the worst. The emergency act which Geir H. Haarde proposed at the beginning of the bank collapse limited government liabilities and saved the country from a financial disaster. Soon the economy recovered. But what was really surprising was to see the Strasbourg judges accept the legal maneuvering of the majority in the Impeachment Court. These judges looked like professional magicians in a circus, deftly pulling new rights and new laws out of their hats instead of rabbits. This would perhaps be entertaining if it was not adversely affecting citizens of the signatory countries of the European Convention on Human Rights. The usurpation of authority by the ECHR in one case after another may have grave political consequences. The trust in this institution is slowly eroding.