Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “ The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Iceland
A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)
A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.
Occasional seminar given.
A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).
A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?
There are no language courses especially designed for judges. Occasionally the Institute of Continuing Education of the University of Iceland has given seminars in Legal English. Judges must themselves finance attendance.
Translation is only provided in court when necessary on behalf of a foreign defendant or accused. No translators work at the courts. The court funding pays translation. If documentation is in a foreign language the counsel is required to submit a translation.
B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)
General: It should be noted that Iceland is not a member of the European Union. It is a member of The European Convention of Human Rights and the European Free Trade Association.
B.1 What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.
No regular training.
The EFTA-Court in Luxembourg has annually invited a group of Icelandic judges to a seminar to review the activities of the court.
The Institute of Human Rights of the University of Iceland has just started a quarterly publication on the most significant cases of the court. The same institute is about to publish a book on all the articles and relevant case law of the European Convention of Human Rights.
Occasional lectures and seminars.
B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?
C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)
C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?
a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:
d) international treaties.
Please cite the relevant constitutional provisions or case-law.
a) Iceland has a dual system of laws. By an act of Parliament no. 62/1994 the European Convention on Human Rights was passed as Icelandic law. In practice it carries more weight than ordinary legislation. In the year 1995, by law no. 97, several amendments were made to the human rights section of the Icelandic constitution, law no. 33/1944, in order to bring it up to date with the provisions of the ECHR.
b) EU treaties have influence in Icelandic law through the European Economic Community, the treaty of which became Icelandic law no. 2/1993. Status as ordinary legislation.
c) The case law of the European Court of Human Rights is increasingly cited by advocates and in decisions of local courts. It ranks as precedent. In Iceland precedents are not binding, nevertheless a judge would not go against it unless for a solid reason. A judgment of the European Court of Human Rights would be an important source in a legal decision. The use of the precedents of the Court are however debated, and seen by some as a sign of so-called “judification”.
The case law of the Court of Justice is not directly applied, but may influence the interpretation of or an application of a local statute or regulation. Advisory opinions of the EFTA-court are strong precedents.
d) International treaties are a binding legal source only if they have been passed as Icelandic law. However, increasingly advocates refer to international treaties in their arguments and courts consider them in the light of the commitment the state has made.
C.2. Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?
Counsel might refer to, but would not carry weight in judicial opinion.
C.3 If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?
Yes. This might however be criticized. Only in connection with a case brought before them. The courts are independent, only bound by the law. Law no. 62/1994 is regular legislation, but has nevertheless been given a higher status in interpretation; accordingly precedents of the Court have an influence on interpretation. It is difficult to answer this question in the abstract.
C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:
Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement.
D. The role of judges in striking a balance between protecting the public interest and human rights in the context of the fight against terrorism
D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?
D.2. Has your country passed substantive and/ or procedural legislation specifically concerned with the fight against terrorism? Please describe any ways in which its provisions depart from the general law applicable in your country to the prosecution and punishment of criminal offences?
Law no. 70/2002 amended the criminal code no. 19/1940, both to make all acts of terrorism explicitly punishable and to satisfy the demands of international treaties that have been ratified. A new law no. 50/2004 on the protection of maritime transport has been passed. Law no. 99/2002 has amended Law on the criminal liability of legal persons no. 144/1998 in order to include terrorism as well as bribes.
D.3 What means does your country use to reconcile the demands of the fight against terrorism and protection of human rights?
At the time of the attacks of 11 September 2001 Iceland had ratified 7 of 13 international treaties concerning terrorism, in the wake of these events she started working on the ratification of the rest. The police have strengthened its cooperation with Interpol, and security at airports has been increased.