Act on the Office of a Special Prosecutor

Act on the Office of a Special Prosecutor

No. 135, 11 December 2008

Entered into force on 12 December 2008.

Article 1

The office of a special prosecutor shall be established in order to investigate suspicions of criminal actions in the period preceding, in connection with or in the wake of, the events which led to the passing of the Act authorising funding from the Treasury in view of the special circumstances on the financial markets (etc.), No. 125/2008, and the situation which then emerged on the financial markets, whether they relate to the activities of financial undertakings, other legal entities or individuals, and, as appropriate, to follow up these investigations by bringing charges against those concerned.

The authority of the office to carry out investigations and bring charges shall cover matters including economic crime, crimes of enrichment and tax offences, including offences which have been investigated by the Financial Supervisory Authority, the Competition Authority and the National Director of Tax Investigations, and have been referred to the police. The special prosecutor shall, as necessary, work with the Financial Supervisory Authority, the Competition Authority and the National Director of Tax Investigations and other law-enforcement and supervisory bodies. If requested, these bodies shall provide the special prosecutor with information concerning the status of matters other than those listed in the first sentence of this paragraph.

Complaints and indications regarding suspected criminal actions covered by this Act shall be submitted to the office as from the time of its establishment.

Article 2

The Minister of Justice shall appoint a special prosecutor who shall head the office of investigation and prosecution as provided for in Article 1.  The special prosecutor shall meet the requirements made for being appointed to the position of a district court judge (cf. the second paragraph of Article 12 of the Judiciary Act).  Nevertheless, the maximum age limit of 70 years (cf. the fifth paragraph of Article 31 of the same Act) may be waived.  The special prosecutor shall engage the other staff of the office.

The provisions of the Civil Servants’ Rights and Obligations Act regarding a five-year appointment period and entitlement to severance pay shall not apply regarding the special prosecutor.   His appointment shall end when the position is abolished or merged with another government body (cf. Article 7). The special prosecutor shall then continue to receive wages without change for three months from that date. If a judge is chosen for the position, then the Minister of Justice shall grant him release from his position for the duration of the appointment.

The special prosecutor shall have the position and general authorisations of a commissioner of police as set forth in the Police Act and powers of prosecution as set forth in Article 1 of this Act.  His position shall be comparable to that of a district prosecutor according to Article 18 of the Code of Criminal Procedure; accordingly, he and his staff shall have the same authorisation to conduct cases before a court as have district prosecutors and their staff under the second paragraph of Article 25 of that Act.  Where actions differ from those to be addressed by the special prosecutor under Article 1 of this Act, and involve offences of a different type, the Director of Public Prosecutions shall decide whether the special prosecutor is to handle the case or whether it is to be handled by another prosecutor.  Similarly, the Director of Public Prosecutions shall resolve other disputes that may arise regarding the extent of the powers of the special prosecutor and other prosecutors.  Furthermore, the special prosecutor shall obey the instructions of the Director of Public Prosecutions in accordance with the third paragraph of Article 21 of the Code of Criminal Procedure, as appropriate.

Article 3

The special prosecutor shall make public information on his shareholdings in financial companies which have been affected by government actions under the Act No. 125/2008, his liabilities towards those companies and his professional connections, and those of his spouse and close relatives, with those who have served in managerial positions in the financial companies referred to or those state bodies that come under investigation by the office. The same shall apply regarding other matters that may have an effect on the particular competence of the special prosecutor.  This information shall cover the five years immediately preceding the commencement of this Act, sums of money over ISK 5 million and also shares in excess of that amount in companies that held shares in the financial companies referred to on 1 September 2008.

Article 4

Police officers and legally-qualified employees of the special prosecutor shall exercise police powers in accordance with the first paragraph of Article 9 of the Police Act.  Other specialists employed by the office shall be empowered to take statements from suspects and witnesses during the investigation phase.

The special prosecutor may consult experts, domestic and foreign, as is considered necessary.

Article 5

The Director of Public Prosecutions may decide, subject to the conditions of the second paragraph of this Article and after receiving a proposal, backed with reasons, from the special prosecutor, that a person who takes the initiative on offering or submitting information or materials to the police or a prosecutor is not to be indicted even though the information or materials establish a likelihood that the person himself has committed an offence.

The conditions for a decision as provided for under the first paragraph of this Article are that the information or materials relate to an offence that comes under the investigative and prosecutory powers of the special prosecutor under this Act and that it is considered likely that the information or materials will lead to the investigation or proof of an offence, or constitute an important addition to evidence already obtained.  Furthermore, it shall be a condition for the application of this authorisation that there is a reasonable suspicion that the information or materials relate to a serious offence, that it is evident in advance that the guilt of the person supplying such things is considerably smaller than that of the person or persons against whom the materials or information are directed and that there is reason to believe that it would be difficult to adduce satisfactory proof of an offence without them.

Article 6

Other aspects of the functions of the office shall be subject to the provisions of the Police Act and the Code of Criminal Procedure where no provisions to the contrary are made in this Act.

Article 7

            After 1 January 2011, the Minister of Justice may, after obtaining the opinion of the Director of Public Prosecutions, propose that the office be abolished.  In that case, he shall submit a bill to this effect to the Althingi.  The functions of the office will then be transferred to the police or the public prosecutors in accordance with the general provisions of the Police Act and the Code of Criminal Procedure.

Article 8

This Act takes effect immediately.

Interim Provision

Until 1 January 2009, the special prosecutor shall have the same status in law as a commissioner of police; accordingly, he and his staff shall have the same authorisation to conduct cases before a court as have police commissioners and their staff under the second paragraph of Article 29 of the Code of Criminal Procedure. Furthermore, the special prosecutor shall be obliged to obey the instructions of the Director of Public Prosecutions in accordance with the fifth paragraph of Article 27 of that Act, as appropriate.