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Ch_23_Iceland_Procedural_safeguards

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					Procedural Safeguards
   11 February 2011
                        Liberty and Security
The Icelandic Constitution
•    Art. 67
“No one may be deprived of his liberty except as permitted by law.
 Any person deprived of his liberty shall be entitled to be informed promptly of the
reasons for this measure.
 Any person arrested by reason of suspicion of criminal conduct shall be brought before a
judge without undue delay. If he is not released at once, the judge shall, within 24 hours,
issue a reasoned decision on whether he shall be detained on remand. Detention on
remand may only be ordered due to a charge subject to heavier sanctions than fines or
punitive custody. The right of a person detained on remand to refer the decision on his
remand to a superior court shall be guaranteed by law. A person shall never be detained
on remand for longer than necessary; if the judge deems that he may be released on bail
the amount of bail shall be determined by a judicial order.
 Any person deprived of his liberty for other reasons shall be entitled to have the legality
of the measure reviewed by a court as soon as possible. If his deprivation of liberty
proves to have been unlawful he shall be released forthwith.
Any person deprived of his liberty without valid reason shall have a right to
compensation.”
                Liberty and Security (2)


The European Convention on Human Rights
•   The ECHR, as amended with protocols 11 and 14, has been
    enacted into domestic law in Iceland, cf. Act. No. 62/1994.
    • So have protocols No. 1, 4, 6, 7 and 13.
    • Thus its provisions apply directly as domestic law in Iceland.

International Conventions ratified by Iceland
• ICCPR
• Hague Convention on Civil Procedure
                Liberty and Security (3)


Cases against Iceland before the European Court of
Human Rights
•   Hilda Hafsteinsdóttir vs. Iceland (2004)
•   Vilborg Yrsa Sigurðardóttir (2000)
    • The case ended with a settlement
                    Liberty and Security (4)
Code on Criminal Procedure
•   Sets out the rules for deprivation of liberty as well as the rights of the defendant in
    a criminal case.
•   Chapter XIII on arrest and Chapter XIV on pre-trial detention
•   Art. 90
    •    The police can arrest a person if there is a reasonable suspicion that he/she has
         committed a crime that is punishable by law. The arrest must be considered necessary in
         order to prevent him/her from continuing his/her conduct committing crime, to ensure
         his/her presence or his/her safety or the safety of others or to prevent him/her from
         destroying evidence.
    •    Arrest is also permitted under certain circumstances in the case of a riot
    •    Arrest is also permitted if the person:
         •     refuses to identify himself/herself and the information is considered necessary for the
               investigation.
         •     has been summoned by the police to give testimony as a defendant but not appeared.
         •     has not appeared before court after being summoned to give evidence in a criminal case.
         •     has disappeared from pre-trial detention without permission or if he/she has violated a
               prohibition according to Art. 100(1).
                 Liberty and Security (5)

Code of Criminal Procedure (2)
•   Art. 93
    •   Arrested person shall be informed of the reasons behind his/her
        arrest
    •   Causing damage or injury to the arrested shall be avoided or to cause
        him any unnecessary inconvenience. It shall also be ensured, as
        possible, that the arrested does not causw himself or others damage
        or injury.
                  Liberty and Security (6)

Code of Criminal Procedure (3)
•   Art. 94
    •   An arrested person shall be brought before a judge within 24 hours if
        he/she has not been set free after giving a statement.
        •     If weather conditions or other extenuating circumstances cause that the
              defendant cannot be brought before a judge within 24 hours, it shall be
              done as soon as possible.
        •     If it is not possible for the defendant to give a statement because he/she
              is under the influence of alcohol or drugs, he/she shall be brought
              before the judge as soon as possible but no longer than 30 hours after
              arrest.
•   All decisions of district courts on pre-trial detention, as well as
    extensions of pre-trial detention, can be brought before the
    Supreme court for revision upon a request of the detainee.
                  Liberty and Security (7)

Code of Criminal Procedure (4)
•   Art. 95 (1)
    •    A defendant shall only be detained by arrest and put in pre-trial
         detention if there is a reasonable suspicion that he/she has
         committed a crime that is punishable by law and the defendant has
         reached 15 years of age. Furthermore it must aim to:
         •    prevent him/her from complicating or impeding the investigation, by
              destroying evidence, influence witnesses etc.
         •    prevent him/her from absconding or hiding to avoid prosecution
         •    prevent him/her from continuing his/her conduct, committing crimes
         •    secure the safety of himself/herself and others
•   Further rules on pre-trial detention, e.g. on its determination, time limit
    and termination, are set out in Art. 97 and 98 of the CCP.
               Liberty and Security (10)


Special measures regarding young offenders
•   According to an agreement between the Prison authorities and
    The Government Agency for Child Protection the latter shall try to
    find appropriate treatment facilities for children under the age of
    18 instead of prison.
•   The general rule regarding young offenders at the age of 18-21 is
    to have them serve their sentence in open prison.
•   These measures are currently under revision in order to find a
    permanent solution for young offenders and to ensure that they
    do not serve prison sentences together with adult offenders.
               Liberty and Security (11)


Deprivation of liberty according to other legislative Acts
•   Chapter III of Act on Legal Competence on involuntary
    confinement
•   Art. 33 of Act on Foreigners stipulates that a foreigner that has
    been obligated, by a decision, to leave Iceland can be arrested and
    committed to custody, by judicial decision in accordance with the
    CCP
•   Act No. 19/1997 on Health Security and Communicable Diseases
    authorizes deprivation of liberty in relation to health security
                      The Right to a Fair Trial


The Icelandic Constitution
•    Art. 69(1)
“No one may be subjected to punishment unless found guilty of conduct that constituted
a criminal offence according to the law at the time when it was committed, or is totally
analogous to such conduct. The sanctions may not be more severe than the law
permitted at the time of commission. “
•    Art. 70
“Everyone shall, for the determination of his rights and obligations or in the event of a
criminal charge against him, be entitled, following a fair trial and within a reasonable
time, to the resolution of an independent and impartial court of law. A hearing by a court
of law shall take place in public, except if the judge decides otherwise as provided for by
law in the interest of morals, public order, the security of the State or the interests of the
parties.
Everyone charged with criminal conduct shall be presumed innocent until proven guilty.”
             The Right to a Fair Trial (2)


The European Convention on Human Rights
•   The ECHR, as amended with protocols 11 and 14, has been given
    force of domestic law in Iceland, cf. Act. No. 62/1994.
    • So have protocols No. 1, 4, 6, 7 and 13.
    • Thus its provisions, including Art. 6, apply directly as domestic
        law in Iceland.


International Conventions ratified by Iceland
•   ICCPR
•   Hague Convention on Civil Procedure
              The Right to a Fair Trial (3)


Cases against Iceland before the European Court of
Human Rights
•   Súsanna Rós Westlund vs. Iceland (2007)
•   Sara Lind Eggertsdóttir vs. Iceland (2007)
•   Sigurþór Árnason vs. Iceland (2003)
•   Pétur Þór Sigurðsson vs. Iceland (2003)
•   Vilborg Yrsa Sigurðardóttir (2000)
    • The case ended with a settlement
•   Jón Kristinsson vs. Iceland (1990)
    •   The case ended with a settlement
             The Right to a Fair Trial (4)


Legal aid in criminal cases
•   Legal costs, as set by a court, shall be covered by the State
    treasury. However, convicted persons are required to reimburse
    the state.
    • If it is sufficiently clear that a convicted person has no assets
         or income to cover the legal costs the claim can be waived.
               The Right to a Fair Trial (5)

Legal aid in civil cases
•   Any individual capable of involvement as a party in a court action may
    qualify for free legal aid before a court in civil cases.
•   The fundamental criteria for granting legal aid is
    •    the applicant’s case must give sufficient grounds for the institution of
         proceedings or defense of an action.
    •    In addition, one of the following criteria must apply:
         •    the applicant must be in a difficult financial situation,
              •      His/her annual maximum income level does not amount to ISK 1.6
                     million.
              •      The applicant’s assets, the spouse’s income, family size, etc. is also
                     given an overall evaluation.
              The Right to a Fair Trial (6)

Public hearing
• Art. 70(1) of the Constitution and Art. 6(1) of the ECHR.
    •   A hearing by a court of law shall take place in public, except if the
        judge decides otherwise, as provided for by law, in the interest of
        morality, public order, the security of the State or the interest of the
        parties.
    •   Exceptions stipulated in Art. 8(1) of the Code on Civil Procedure No
        91/1991 and in Art. 10(1) of the Code of Criminal Procedure No
        88/2008 and cover, e.g., circumstances where cases involve sensitive
        matters, especially when children’s or victim’s interests are at stake.
             The Right to a Fair Trial (7)

Presumption of Innocence
• Art. 70(2) of the Constitution and Art. 6(2) of the ECHR.
    •   Everyone charged with a criminal conduct shall be presumed
        innocent until proven guilty.
    •   The burden of proof rests with the prosecution authorities, cf. CCPs
        Art. 108.
    •   The judge of the case in question shall evaluate whether or not the
        prosecution has presented its case in the manner that the charges
        are considered to be proven beyond reasonable doubt, cf. Art. 109.
               The Right to a Fair Trial (8)
The right to be informed promptly in a language the defendant
understands
•   Art. 6(3) of the ECHR.
•   An accused person is entitled to information on the charges made against
    him/her before his/her statement is taken in respect of the charges made
    or at the time of arrest, as applicable, cf. CCPs Article 28(1)
•   Article 63(5) of the CCP provides that on taking a statement, the police
    should summon a chartered court interpreter or other qualified person to
    translate the proceedings if the person giving the statement has
    inadequate command of language. If the person giving the statement is
    incapable of communicating orally, the police are required in a similar
    manner to call in an expert to render assistance.
    •    The same applies to giving testimony before a court of law, cf. Art. 12(2) and
         12(4) of the CCP.
•   The cost of the work of an interpreter/expert is paid out of the State
    Treasury, as provided in Articles 63(5) and 216(2) of the CCP.
               The Right to a Fair Trial (9)
The right to have adequate time and facilities for the preparation of
defence
•   Art. 70(1) of the Constitution and Art. 6(3)(b) of the ECHR.
    •    Everyone shall be entitled to the resolution of criminal charges made against
         him/her within a reasonable time.
         •    This rule entails both the right of a defendant for process to be as expedient as
              possible and the right of a defendant to a reasonable time to prepare his/her
              defense.
•   After the first hearing of a case, a defendant may ask for adjournment to
    prepare his/her defense and gather further evidence, cf. Art. 165(2) of the
    CCP.
•   When a case has been taken for adjudication, the judge is authorized to
    adjourn the proceedings as needed if the judge is of the opinion that
    further data are needed or if the judge sees reason to question the
    defendant or witnesses further, cf. Art. 168 of the CCP.
    •    Such extended deadlines must be granted by a judge within the limits
         imposed on him/her by the rule in Art. 171(1) of the CCP concerning
         expedient proceedings.
              The Right to a Fair Trial (10)
The right to defend oneself in person of through legal assistance of
one’s choosing
•   Art. 6(3)(c) of the ECHR and Art. 29 of the CCP
    •    CCPs Art. 29 also states that a defendant who is not trained in law must be
         provided with guidance on the formal aspects of a case as necessary.
•   A defendant is at all stages of criminal proceedings permitted to appoint,
    at his/her own cost, a lawyer to represent his/her interests, cf. Art. 32(2)
    of the CCP.
•   The police and judges are required, on certain occasions which are listed
    in Art. 30 and 31 of the CCP, to appoint a counsel for the defendant.
•   Art. 33(3) of the CCP provides that before the appointment or designation
    of a counsel, a defendant should be granted an opportunity to nominate a
    counsel to take the post, and normally the defendant’s wishes should be
    observed in that regard.
             The Right to a Fair Trial (11)
The right to examine witnesses or have them examined
•   ECHR Art. 6(3)(d)
•   Both the prosecution and the defendant are entitled to call witnesses for
    testimony before a court of law, cf. Art. 138(1) of the CCP.
•   A defendant in criminal proceedings shall be granted an opportunity to
    question a witness who has been summoned in proceedings against
    him/her, cf. Art. 122(2) of the CCP.
              The Right to a Fair Trial (12)
The right to an interpreter, in one cannot understand or speak the
language used in court
•   ECHR Art. 6(3)(e)
•   In criminal cases, the cost of interpretation is not a part of the case legal
    costs, cf. Art. 216(2) of the CCP.
    •    Accordingly, the defendant will not be charged for this cost in criminal cases.
•   In civil cases, the cost of interpretation forms however a part of the case
    legal costs, cf. Art. 10(2) and Art. 129(1) of the Code on Civil Procedure.
    •    Exceptions in private penal-cases, paternity-cases, cases regarding deprivation
         of legal competence and finally in cases where an interpreter is required in an
         agreement with a foreign state

				
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