Professional content

Responsible investigation procedures

3.8.2014 Gunnar Egill Egilsson

During the last few weeks, the investigation procedures of the Special Prosecutor seen substantial attention. The discussion follows news on how the Prosecutor had unlawfully maintained record of discussions between attorney and his defendant, which where produced during the tapping of the phone of the defendant. Obviously a clear violations of attorney-client privilege.

The human rights that pertain to privacy and the rights of a person charged with a criminal offence, which are to be found in the Icelandic constitution and human right conventions, are especially important during turbulent times. In the atmosphere that has surrounded Iceland following the economic crash, one could say that our society has undergone a stress test.

In all likelihood, some time needs to pass before the results of such a fast can be reviewed and scrutinised. But there are some indications that we might not have aced the test, and possibly done some worse than one would hope.

Following the discussions regarding the Special Prosecutor, there is a reason to draw attention to the significant rights granted to Tax Authority's to access to information and documents. Paragraph 1 of article 94 of the Icelandic Income Tax Act is as follow (roughly translated by the undersigned):

Everyone, regardless of whether they are obliged to file tax reports or not, must present the Tax Authorities, free of charge, and in the form demanded, with all necessary information and documentation they demand, and is within the realms of possibility to present. It does not matter whether the information or documentation regards the person that is subject to the dement or other parties […].

This broad right granted to the Tax Authorities is justified as to ensure the recovery of tax levied under law. But the all-embracing wording of the article does draw attention, as the article is practically without limitation.

Short time ago, the scope of this article was subject to the review of the Icelandic courts in the so called PIP breast implant scandal. A legal representative was handling the case on behalf of the bulk of the Icelandic women, who suffered from the defected implants. The plastic surgeon who had treated most of them, was also under suspicion of not having correctly reported his full earnings.

In order to collect information on the business of the said plastic surgeon, the Tax Authorities subpoenaed the legal representative of the victims to inform on the names and social security number of his clients, who had undergone operations with the suspected plastic surgeon.

The attorney at law stated that the requested information where subject to a attorney-client privilege, and could not be subpoenaed under the circumstances. Further more, the privileges of the clients should be viewed in the light that the individuals in question had sought legal representation following the health related matter, that was very personal and could be considered delicate.

In short, the final concussion of the district court as well as the Supreme court, was that there was no room for attorney-client privilege. The court simply referred to the clear wording of article 94, and the principle of lex specialis, and stated that the information should be presented to the Tax Authorities.

In my view, what is absent from the court's finding is the evaluation and comparison on the interests of the parties effected by the case. On one hand you had the Icelandic state, trying to ensure that income would go untaxed. On the other, you have the rights of citizens to seek legal representation in their matters, and fully disclose their case to an attorney, trusting that the information will be confidential, as granted in the legislation governing the relationship of attorneys and their clients.

It should be taken into consideration that all the information that Tax Authorities need to reassess the correct tax payable by the plastic surgeon are generally at their disposal. For example the authorities can easily access all financial information relating to all individuals, and view all their bank statements, assets, etc. If you cannot conclude your case based on that information, how could you justify further investigation, and where should you stop in this pursuit?

As a counter argument, it has been stressed that public employees are forbidden to disclose any information they come across in their employment. Thereby, no harm is done of Tax Authorities are granted access to their information, as they are as secure as before. Let's look past the Orwellian side of that argumentation and discuss the situation you can be exposed to.

In 2008 the department of economic affairs of the Icelandic police was granted a search warrant, to search the office of the Icelandic Directorate of Tax Investigations. The search warrant was necessary, so the police could gain access to documentation regarding an individual, who had been subject to investigation of the Directorate. Given their easy access to all documentation, the police seems to have wanted a piece of that action. 

The warrant was disputed by the Directorate, but the Supreme court granted the warrant, despite being evident that the police was seeking access to document, by rather unfamiliar ways.

Evidently, Icelandic authorities are trusted with grave responsibility, when conduction investigations. While Icelandic courts have been rather reluctant to dismiss evidences, that have been discovered without indisputable legal grounds, it is very important to thoroughly investigate instances where authorities may have acted unlawfully.

The main aim of such investigation should not to find the guilty person to punish. The main aim of such investigation should be to examine, if we as a community have been able to uphold the principles we ourselves have set fourth.