Todistajana annetun kertomuksen käyttö näyttönä oli EIS 6 artiklan vastaista kun henkilö oli ollut rikoksesta epäilty kertomuksen antaessaan

15.3.2022 | Oikeusuutiset

Markku Fredman

Former Kaupþing Bank executive’s trial for fraud unfair owing to use of transcript of his questioning while still a witness

In today’s Chamber judgment1 in the case of Bjarki H. Diego v. Iceland (application no. 30965/17) the European Court of Human Rights held, unanimously, that there had been:

  • no violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights in respect of the requirement of an independent and impartial tribunal, and
  • a violation of Article 6 §§ 1 and 3 (a) and (c) (right to be informed promptly of accusation / right to legal assistance of own choosing)

The case concerned the trial of Mr Diego – a former Kaupþing bank official – for fraud by abuse of position following the 2008 financial crisis. He had been questioned without being informed of his status as a suspect. Details of one of the judge’s (V.M.M.) shareholdings in Kaupþing were revealed only following the final judgment in his case.
The Court found that Justice V.M.M.’s losses in Kaupþing had been minimal and certainly not at a level to call into question his impartiality.
However, the Court did find that the Icelandic authorities had been negligent with regards to the investigation against Mr Diego. In particular, the prosecutor had interviewed Mr Diego as a witness in the case, despite his effectively having been treated as a suspect at the time, his phone having been tapped as a result, and the transcript of that interview subsequently being introduced as evidence before court. The Government were unable to show that this had not undermined the fairness of the trial.

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