Sigurður Einarsson and Others v. Iceland

Information Note on the Court’s case-law 230
June 2019
Sigurður Einarsson and Others v. Iceland - 39757/15
Judgment 4.6.2019 [Section II]
Article 6
Article 6-3-b
Adequate facilities
Defence denied access to mass of data and involvement in its electronic sifting by prosecution when gathering relevant information for investigation: no violation
Facts – The applicants occupied senior positions in a bank that collapsed in the wake of the 2008 banking crisis in Iceland. They were prosecuted for breach of trust or market manipulation and found guilty.
The applicants complained that their defence had not been given access to the vast amount of data collected by the prosecution during the investigation phase and, among other things, were unable to have a say in the prosecution’s electronic sifting of that data in order to gather relevant information for inclusion in the investigation file. They maintained that no one had reviewed the prosecution’s cherry-picking of the documents submitted to the court and that they had been denied the possibility of carrying out a search using the electronic system applied (namely “Clearwell”, an e‑Discovery system).
Law – Article 6 §§ 1 and 3 (b): There had been several collections of documents/data: the “full collection of data” which encompassed all the material obtained by the prosecution (and which was included as a sub-category data “tagged” as a result of the Clearwell searches using specified keywords but not subsequently included in the investigation file); the “investigation documents”, identified from that material by means of further searches and manual review as being potentially relevant to the case; and the “evidence in the case”, that is the material selected from the “investigation documents” and actually presented to the trial court by the prosecution.
It was undisputed that the defence had been provided with the “evidence in the case” and given an opportunity to consult the “investigation file” containing material which had not been submitted to the domestic court. The issue in the case was thus whether the defence had a right to obtain access, on the one hand, to the mass of information collected indiscriminately by the prosecution and not included in the investigation file; and, on the other hand, to the “tagged” data obtained by Clearwell searches, in order to identify evidence that could potentially be exculpatory.
(i)  As to the “full collection of data” – By its nature, it inevitably included a mass of data which was not prima facie relevant to the case. Moreover, when the prosecution was in possession of a vast volume of unprocessed material it might be legitimate for it to sift through the information in order to identify what was likely to be relevant and thus reduce the file to manageable proportions. Nevertheless, in principle an important safeguard in such a process would be to ensure that the defence was provided with an opportunity to be involved in the laying-down of the criteria for determining what might be relevant.
In the present case, however, the applicants had not pointed to any specific issue which could have been clarified by further searches. In the absence of such specification – which was open to them under domestic law – the Court had difficulty in accepting that a “fishing expedition” of this kind would have been justified. In that respect, the data in question were more akin to any other evidence which might have existed but had not been collected by the prosecution at all than to evidence of which the prosecution had knowledge but which it refused to disclose to the defence.
Thus, it was not a situation of withholding evidence or “non-disclosure” in the classic sense, since the prosecution had in fact not been aware of what the contents of the mass of data were, and to that extent it had not held any advantage over the defence.
(ii)  As to the data “tagged” as a result of the initial Clearwell searches – While here again the excluded material was a priori not relevant to the case, this selection had been made by the prosecution alone, without the defence being involved and without any judicial supervision of the process.
The defence had been denied lists of the documents – and in particular the “tagged” documents – on the ground that they had not existed and that there was no obligation to create such documents, and reference had also been made to the technical obstacles to re-migrating the data and conducting new searches, given the volume in question.
As to the denial of lists, while under domestic law there was no obligation on the prosecution to create documents which did not already exist, further searches in the data would have been technically rather straightforward. In principle it would be appropriate for the defence to have been afforded the possibility of conducting a search for potentially exculpatory evidence. Privacy issues were not insurmountable obstacles in that respect. Thus, any refusal to allow the defence to have further searches of the “tagged” documents carried out would in principle raise an issue under Article 6 § 3 (b) with regard to the provision of adequate facilities for the preparation of the defence.
That said, despite frequent complaints to the prosecution about lack of access to documents, the applicants had never formally sought a court order for access to the “full collection of data” or for further searches to be carried out. Nor had they suggested further investigative measures – such as a fresh search using keywords suggested by them. This possibility of a review by a court was an important safeguard in determining whether access to data should be ensured. Moreover, among the evidence submitted to the trial court were overviews of the seized items and an approximate idea of their contents.
In those circumstances, and bearing in mind that the applicants had not provided any specification of the type of evidence they had been seeking, the lack of access to the data in question was not such that the applicants had been denied a fair trial overall.
Conclusion: no violation (six votes to one).
The Court also found, unanimously, a violation of Article 6 § 1 on account of lack of objective impartiality of one of the domestic judges, whose son was a senior employee of the bank in question at the material time, and no violation of Article 6 §§ 1 and 3 (d) in respect of the alleged failure to summon witnesses.
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.
 
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This summary by the Registry does not bind the Court.
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