Lexploria

Application No. 12631/87

Hans FEJDE

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 8 May 1990)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-15) ............................. 1

A. The application

(paras. 2-4) ....................................... 1

B. The proceedings

(paras. 5-10) ...................................... 1

C. The present Report

(paras. 11-15) ..................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 16-32) .............. 3

A. The particular facts of the case

(paras. 16-29) ..................................... 3

B. Relevant domestic law

(paras. 30-32) ..................................... 5

III. OPINION OF THE COMMISSION (paras. 33-53) ............... 8

A. Point at issue

(para. 33) ......................................... 8

B. Applicability of Article 6 para. 1 of the

Convention (paras. 34-37) .......................... 8

C. Compliance with Article 6 para. 1 of the

Convention (paras. 38-53) .......................... 9

Dissenting opinion of MM. G. Jörundsson and H. Danelius ..... 13

APPENDIX I: HISTORY OF THE PROCEEDINGS .................. 15

APPENDIX II: DECISION AS TO THE ADMISSIBILITY ............ 16

I. INTRODUCTION

1. The following is an outline of the case, as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, Hans Fejde, is a Swedish citizen, born in 1927.

He is a businessman and resides at Västra Frölunda, Sweden. Before the

Commission the applicant is represented by Mr. Christer Arnewid, a

lawyer practising in Göteborg.

3. The Government of Sweden are represented by their Agent,

Mr. Carl Henrik Ehrenkrona, Ministry for Foreign Affairs, Stockholm.

4. The case concerns the appeal proceedings in the Court of

Appeal for Western Sweden (hovrätten för Västra Sverige) in which the

applicant's appeal against his conviction in a criminal case was dealt

with without a public hearing in accordance with Chapter 51, Section 21

of the Swedish Code of Judicial Procedure (rättegångsbalken). The

applicant considers that this procedure violated his right to a public

hearing as guaranteed by Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 28 July 1986 and registered

on 18 December 1986. On 7 October 1988 the Commission decided in

accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give

notice of the application to the respondent Government, inviting them

to submit written observations on the admissibility and merits of the

case.

6. The Government's observations were submitted on 27 December 1988

and the applicant's observations in reply were submitted on 13 July 1989.

7. Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 17 March 1989.

8. On 4 October 1989 the Commission decided to declare admissible

the applicant's complaint under Article 6 para. 1 of the Convention

which concerned the lack of a public hearing in the Court of Appeal.

The remainder of the applicant's complaints was declared inadmissible.

9. The parties were then invited to submit any additional observations

on the merits which they wished to make. On 3 November 1989 the Government

informed the Commission that they did not intend to submit further

observations on the merits of the case. No further observations were

received from the applicant.

10. After declaring the case admissible the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. Consultations with the parties took

place between 12 October and 3 November 1989. The Commission now finds

that there is no basis upon which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir. Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

12. The text of this Report was adopted on 8 May 1990 and is now

transmitted to the Committee of Ministers of the Council of Europe in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of this Report, pursuant to Article 31 para. 1 of

the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

14. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the pleadings of the parties, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular facts of the case

16. Subsequent to the death of the applicant's stepfather his

mother moved house. At that time the applicant owned a removal firm

for which reason he was in charge of the removal. Among the furniture

was a saloon rifle which eventually was stored together with other

furniture at the applicant's property.

17. After some years the applicant's removal firm went bankrupt

and among the inventory the saloon rifle was found. It appears that

this was brought to the attention of the local police which

investigated the case and subsequently charged the applicant with a

violation of the Firearms Act (vapenlagen). The case was heard in the

District Court (tingsrätten) of Göteborg on 27 August 1984 where the

applicant had the opportunity to address the Court. In its judgment of

the same day the District Court stated:

(translation)

"(The applicant) has contested criminal liability and has made

the following statement: the weapon in question was owned by

RT, who was married to his mother. RT is dead. When (the

applicant's) mother moved house some ten years ago the weapon

ended up in (the applicant's) storage room together with

furniture for which there was no room in his mother's new

home. The weapon was found in the storage room in connection

with (the applicant's) bankruptcy. He was aware of the

weapon being there all the time but he did not think of it as

a weapon. The rifle lacks a breech-block and there was never any

ammunition. (The applicant) does not consider himself the owner

of the rifle since it is his mother, now 82 years old, who is

the formal owner of it.

The Court finds that (the applicant) cannot avoid being held

responsible for the possession of the weapon, but that the

violation of the Firearms Act is of a minor character.

Accordingly no other punishment but a small fine is required."

18. The applicant was fined 300 Swedish crowns and in its judgment

the District Court also decided to forfeit the rifle. In doing this

the District Court referred to an official record containing the

decision to seize the rifle. In this record the object seized was

described as follows: "one piece of bullet rifle, manufacture FN,

calibre 22 LR, manufacturing number 314741, breech-block missing.

Weapon in cover."

19. On 4 September 1984 the applicant appealed against the

judgment to the Court of Appeal for Western Sweden. In his appeal the

applicant maintained that the police had not investigated the case

properly, that new information had appeared, that the judgment would

have a negative effect on his future life, that the Firearms Act had

been misinterpreted and he questioned whether he could at all be held

responsible. In particular the applicant pointed out that the owner

of the rifle was a son of his stepfather and not his mother and,

secondly, he maintained that the rifle could not be considered a

weapon within the meaning of the Firearms Act since the breech-block

was missing. In respect of the latter, he suggested to hear his

mother and his brother as witnesses in order to have established that

the rifle was without a breech-block.

20. On 23 October 1984 the applicant was informed by the Court of

Appeal that, according to Chapter 51, Section 21 of the Code of Judicial

Procedure, his case could be dealt with by the Court of Appeal without

an oral hearing. Therefore he was asked to state whether or not he

wanted such a hearing and, if so, what kind of evidence he would rely

upon.

21. In reply to the above, the applicant informed the Court of

Appeal on 24 October 1984 that, since he was without means, he would

like the Court to appoint counsel and, furthermore, he concluded that

this of course also meant that a hearing should take place with the

parties present. By letter of 15 February 1985 the applicant in addition

informed the Court of Appeal that he had been refused certain jobs as

attendant due to the fact that he had been found guilty by the District

Court. Accordingly he maintained that the case was no longer to be

considered as a trifle but that it was very important for him to have his

name cleared.

22. From notes made on the applicant's above letter by one of the

Court's officials it appears that the applicant was called by

telephone on 18 February 1985 and informed how the case would now

proceed. Furthermore it appears that the applicant, during a telephone

conversation on 4 March 1985, explained that he wished to have a

defence counsel appointed. The notes finally indicate that the

applicant did not maintain his request for the hearing of witnesses

since the question of the missing breech-block was no longer in

dispute.

23. By decision of 27 February 1985 the Court of Appeal refused to

appoint counsel for the applicant, finding no reasons to justify such

appointment. The applicant appealed against this decision to the

Supreme Court (Högsta domstolen) which, however, refused leave to

appeal on 19 June 1985.

24. In the meantime the applicant had received, on 6 March 1985, a

letter from the Court of Appeal informing him that, since the case could

be dealt with without an oral hearing, he had ten days to submit his

final written submissions. On 11 March 1985 the applicant sent a letter

to the Court of Appeal in which he maintained, inter alia, that the rifle

could not be considered a weapon within the meaning of the Firearms Act

since it had no breech-block. He suggested that his brother be heard as

a witness in order to substantiate that the rifle had never had a

breech-block while in the applicant's possession.

25. In this letter the applicant also complained of the Court of

Appeal's refusal to appoint counsel. The respondent Government have

submitted that the Court of Appeal did not regard the submissions of

11 March 1985 by the applicant as final submissions in the case. They were

regarded as an appeal against the Court's decision of 27 February 1985

on the question of defence counsel. The respondent Government submit

that these submissions were therefore forwarded to the Supreme Court and

did not form part of the case file of the Court of Appeal.

26. The case was examined by the Court of Appeal on 22 August 1985.

On this day the Court of Appeal also decided that an oral hearing in the

Court would be manifestly unnecessary and that the case therefore could

be dealt with without such a hearing in accordance with Chapter 51,

Section 21 of the Code of Judicial Procedure. It was decided that this

decision should be made public on the same day as the judgment was

delivered.

27. On 2 October 1985 the Court of Appeal delivered its judgment in

the case, in which it stated:

(translation)

"(The applicant) has submitted to the Court of Appeal the same

information as was mentioned in the judgment of the District Court

and added: When (his stepfather) and his mother separated (his

stepfather) forgot the rifle at the mother's place of

residence at Furuby. Since (the applicant's stepfather) has

died it is his son ... who now owns the rifle.

It is undisputed that (the applicant) has been in possession

of the rifle without a permit. Regardless of how it came into

his possession and who owns it, he shall therefore be

convicted for having violated the Firearms Act. The sentence

should be as determined by the District Court.

The Court of Appeal, which accepts (the applicant's)

information as to how the rifle came into his possession,

finds that he is at least not the owner of it. The question of

confiscation of the rifle accordingly concerns a person who is

not accused in this case. The question of confiscation should

be directed against the owner of the rifle in accordance with

Section 17 of the Act of 1946 concerning the promulgation of a

new Code of Judicial Procedure. This has not happened in the

present case. The request for confiscation is therefore

rejected."

28. The applicant asked for leave to appeal against the judgment to

the Supreme Court. In his request for leave to appeal, the applicant

maintained that he had not violated the Firearms Act since the rifle

could not be considered a weapon as it had no breech-block. He

complained that the lower courts had disregarded this vital information

although he had pointed it out in his submissions and although he had

requested a hearing in order to hear witnesses in this respect.

Furthermore he maintained that the conviction had had unforeseeable

consequences for him.

29. On 3 March 1986 the Supreme Court refused leave to appeal.

B. Relevant domestic law

30. The Firearms Act contains specific rules for the control of

the right to possess and acquire firearms and ammunition. According to

Section 5 of the Firearms Act the possession of firearms is prohibited

unless a permit to this end has been granted. In Section 1 a definition

of the concept of firearms is found. It is provided, inter alia, that

a firearm is a weapon which can fire a bullet, shot, harpoon or other

projectile by means of gunpowder, carbonic acid, compressed air or

other similar means. The Firearms Act also provides that the

provisions apply accordingly to certain separate parts of a weapon,

e.g. a breech-block or barrel, and to weapons which are unusable if

the weapon would count as a firearm had it been usable. Anyone who

intentionally possesses a firearm without a permit is, according to

Section 37 of the Act, liable to imprisonment for a maximum period of

two years. If the act has been committed by negligence, or if the

offence is of a minor character, the offender is liable to pay a fine

or to imprisonment not exceeding six months.

31. Violations of the Firearms Act are considered criminal

offences and the Code of Judicial Procedure is thus applicable. By

virtue of this Code judgments in criminal matters shall as a rule be

rendered after a main oral hearing. This rule applies to proceedings

in the lower courts as well as in appeal courts. Exceptions to this

rule exist, however, at the appellate level. Thus Chapter 51, Section

21 of the Code of Judicial Procedure, as amended as from 1 July 1984,

reads as follows in the relevant parts:

"Hovrätten får avgöra mål utan huvudförhandling,

1. om talan av åklagaren förs endast till den tilltalades förmån,

2. om talan, som förs av den tilltalade, biträtts av motparten,

3. om det är uppenbart att vadetalan är ogrundad, eller

4. om det inte finns anledning att döma den tilltalade till

ansvar eller att ådöma honom påföljd eller döma honom till

annan påföljd än böter eller villkorlig dom eller sådana

påföljder i förening.

...

Har i fall som avses i första stycket en part begärt

huvudförhandling, skall sådan hållas, om det inte är uppenbart

obehövligt.

...

För prövning som inte avser själva saken behöver

huvudförhandling inte hållas."

(translation)

"The Court of Appeal may decide an appeal without a main hearing,

1. if the prosecutor appeals only for the benefit of the

accused,

2. if an appeal brought by the accused is supported by the

opposing party,

3. if the appeal is plainly unfounded, or

4. if no reason exists to hold the accused legally liable, or

to impose a sanction upon him, or to impose a sanction other

than a fine or a conditional sentence, or a combination of

such sanctions.

...

If, in a case referred to in the first paragraph, a party has

requested a main hearing, such a hearing shall be held unless

manifestly unnecessary.

...

For a ruling not related to the merits a main hearing need not

be held."

32. Swedish appeal courts review criminal cases with respect to

law as well as facts. However, there are certain limitations to the

Court of Appeal's full jurisdiction. Chapter 51, Section 25 of the

Code of Judicial Procedure contains a prohibition against reformatio

in pejus in certain cases. This provision reads as follows:

"Ej må hovrätten i anledning av den tilltalades talan eller

talan, som av åklagare föres till hans förmån, döma till

brottspåföljd, som är att anse såsom svårare än den, vartill

underrätten dömt. Har den tilltalade av underrätten dömts till

fängelse, äge hovrätten förordna om villkorlig dom,

skyddstillsyn eller överlämnande till särskild vård, så ock

jämte villkorlig dom, skyddstillsyn eller överlämnande till

vård inom socialtjänsten döma till böter ävensom jämte

skyddstillsyn döma till fängelse enligt 28 kap. 3 §

brottsbalken. Har underrätten meddelat förordnande som nu

sagts, äge hovrätten döma till annan påföljd."

(translation)

"Upon an appeal lodged by the accused, or by the prosecutor for

the benefit of the accused, the Court of Appeal may not

sentence the accused to a criminal sanction more severe than

the one imposed by the lower court. If the accused was

sentenced by the lower court to imprisonment, the Court of

Appeal may order a suspension of sentence, probation or

placing under special care; in addition to suspension of

sentence and to probation or placing under care within the

social service, the Court of Appeal may impose a fine or

probation coupled with imprisonment, pursuant to Chapter 28,

Section 3 of the Penal Code. When the lower court has ordered

a sanction of the kind referred to above, the Court of Appeal

may impose a different kind of sanction."

III. OPINION OF THE COMMISSION

A. Point at issue

33. The issue to be determined in the present case is whether the

proceedings before the Court of Appeal when it examined the

applicant's appeal against the judgment of the District Court violated

his right to a "fair and public hearing" as guaranteed by Article 6

para. 1 (Art. 6-1) of the Convention.

B. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

34. Article 6 para. 1 (Art. 6-1) reads as follows:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and

public may be excluded from all or part of the trial in the

interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the

protection of the private life of the parties so require, or

to the extent strictly necessary in the opinion of the court

in special circumstances where publicity would prejudice the

interests of justice."

35. It is not in dispute between the parties that the above

provision applies to the appeal proceedings in question. This also

follows from the case-law of the Commission and the European Court of

Human Rights according to which a State which institutes courts of

appeal is required to ensure that persons amenable to the law shall

enjoy before these courts the fundamental guarantees contained in

Article 6 (Art. 6) of the Convention (see notably Eur. Court H.R.,

Delcourt judgment of 17 January 1970, Series A no. 11, p. 13, para.

25, and Eur. Court H.R., Axen judgment of 8 December 1983, Series A

no. 72, p. 12, para. 27). Accordingly, although Article 6 (Art. 6)

does not guarantee an appeal in criminal proceedings, the guarantees

of Article 6 (Art. 6) continue to apply to the appeal proceedings

where the opportunity to lodge an appeal in regard to the

determination of a criminal charge is provided for under domestic law,

since these proceedings form part of the whole proceedings which

determine the criminal charge at issue.

36. Furthermore, leaving aside the question of the authority of

Protocol No. 7 to the Convention which had not yet entered into force

at the time when the circumstances of the present case were examined

in the domestic courts, the Commission recalls that the European Court

of Human Rights has found no warrant for the view that the addition of

this Protocol was intended to limit, at the appellate level, the scope

of the guarantees contained in Article 6 (Art. 6) of the Convention

(cf. Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A no.

134, p. 12, para. 26).

37. It follows that Article 6 (Art. 6) applied, not only to the

proceedings in the District Court, but also to the proceedings in the

Court of Appeal.

C. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

38. It is established that the applicant had the opportunity to

present his case in person in the District Court at a public hearing,

in proceedings which were not at variance with Article 6 (Art. 6) of

the Convention. It is also established that the applicant did not

have the same opportunity in the Court of Appeal as there was no

public hearing. It follows, however, from the case-law of the

Commission and the European Court of Human Rights that the manner of

application of Article 6 (Art. 6) to the proceedings before courts of

appeal depends on the particular circumstances of the case (cf. the

above-mentioned Axen judgment p. 12, para. 27). The question before

the Commission is therefore whether a departure from the principle

that there should be a public hearing could, in regard to the

proceedings before the Court of Appeal, be justified in the

circumstances of the present case.

39. In determining this question, the Commission must have regard

to the nature of the national appeal system, the scope of the Court

of Appeal's powers and the manner in which the applicant's interests

were actually presented and protected before the Court of Appeal (cf.

Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A no. 134,

p. 13, para. 28).

40. As regards the nature of the national appeal system the

Commission recalls that it has, as well as the European Court of Human

Rights, on a number of occasions held that, provided that there has

been a public hearing at first instance, the absence of a public

hearing before a second or third instance may be justified in certain

circumstances. The Commission refers in this respect to the above-

mentioned Axen judgment (p. 12, para. 28) and the Sutter case (Eur.

Court H.R., Sutter judgment of 22 February 1984, Series A no. 74, p. 13,

para. 30). In both cases the Court found no breach of Article 6

(Art. 6). In the Axen case the reason was that the first instance

court and the appeal court had heard the case in public and the German

Federal Court (Bundesgerichtshof), which determines solely issues of

law, could - short of holding hearings - only dismiss the appeal on

points of law. In the Sutter case the Court of Cassation had not ruled

on the merits of the case and had dismissed Mr. Sutter's appeal in a

judgment devoted solely to the interpretation of the legal provisions

concerned.

41. The Commission had, in earlier cases, acknowledged that the

absence of an oral procedure before appeal courts does not necessarily

constitute a violation of Article 6 para. 1 (Art. 6-1). For example,

it decided so in the case of the dismissal of appeals on points of law

in criminal proceedings by the German Federal Court (No. 599/59, Dec.

14.12.61, Collection 8 p. 12), and by the Court of Appeal

(Kammergericht) in Berlin (No. 1169/61, Dec. 24.9.63, Yearbook 6 p.

520), and of the dismissal by the Swiss Federal Court of an appeal

(No. 7211/75, Dec. 6.10.76, D.R. 7 p. 104).

42. The Commission and the European Court of Human Rights have on

the other hand held that where a court of appeal is called upon to

examine a case as to the facts and the law and has to make a full

assessment of the question of guilt and innocence, it cannot, as a

matter of fair trial, determine such questions without a direct

assessment of the evidence given in person by the accused, who claims

that he has not committed the act alleged to constitute a criminal

offence (cf. the above-mentioned Ekbatani judgment, p. 14, para. 32).

43. In the present case the Commission recalls that under Swedish

law the case against the applicant was dealt with by the national

courts as a "criminal" case, the applicant being the accused person.

Furthermore, the applicant disputed ever having possessed a weapon

within the meaning of the Firearms Act and he contested having violated

any laws. Under the Swedish Code of Judicial Procedure the nature of

the appeal was accordingly in principle a full appeal where the Court

of Appeal was called upon to examine the case both as to the facts and

the law.

44. The scope of the Court of Appeal's powers are set out in

Chapter 51, Section 21 of the Code of Judicial Procedure as amended as

from 1 July 1984 (para. 31 above). It follows from this provision,

inter alia, that where no reason appears for the Court of Appeal to

sentence a person to a more severe sentence than a fine, a conditional

sentence or a combination of such sanctions the Court of Appeal is not

obliged to hold an oral hearing regarding the appeal but can base its

judgment exclusively on the case file and the written submissions of

the parties. It is an optional procedure and the Court of Appeal is

not supposed to resort to it if a hearing can be expected to give the

Court a better basis for deciding on the appeal. Furthermore, an oral

hearing shall be held at the request of either party unless the Court

finds it manifestly unnecessary.

45. The Commission notes that under Chapter 51, Section 21 the

Court of Appeal may, without a public hearing, convict a person who has

been acquitted by the District Court and may, without a public hearing,

impose a higher fine on the defendant than the one imposed by the

District Court. However, in the present case no such question of a

possible worsening of the applicant's situation arose, or could arise,

since only the applicant appealed against the judgment of the District

Court, and in view of the prohibition of reformatio in pejus in

Chapter 51, Section 25 of the Code of Judicial Procedure, the Court

of Appeal could not, in the absence of an appeal by the Public

Prosecutor, increase the sentence imposed on the applicant by the

District Court.

46. The situation in the present case was accordingly that the

Court of Appeal could decide to uphold the judgment pronounced by the

District Court, or decide in the applicant's favour either by

reducing the fine or by acquitting him.

47. The Government have acknowledged that the proceedings before

the Court of Appeal involve both questions of fact and questions of

law. They submit that Swedish procedural law does not distinguish

between questions of fact and questions of law and there are no rules

restricting the scope of the proceedings in the courts of appeal in

this respect. This fact, however, does not automatically lead to the

conclusion that there has been a violation of the Convention. In the

Government's view account ought to be taken, for example, of the type

of offence, to what extent the facts adduced are denied and whether

they are relevant or not. Furthermore the fact that Swedish courts of

appeal have the power to review also the facts of the case should not

be looked upon as a disadvantage for the accused. The need for the

personal appearance of the accused, and for an oral hearing, should be

adjudged according to the way the case lies before the appeal court in

question. The present case, the Government submit, is different from

the above-mentioned Ekbatani case in that the facts were undisputed.

The main task for the Court of Appeal was accordingly to establish

whether the act committed was punishable or not. In practice the task

of the Court of Appeal was restricted to an interpretation of the legal

rules involved. An oral hearing where the applicant was present would

not have added anything relevant to these proceedings.

48. Finally as regards the manner in which the applicant's

interests were actually presented and protected before the Court of

Appeal the Government have submitted that the principle of equality of

arms was respected in that the applicant as well as the Public

Prosecutor had the right to submit pleadings in writing and neither

appeared in person before the Court of Appeal.

49. The Commission notes that both parties in the present case had

equal opportunities to present their case in writing. However, the

Court of Appeal was called upon to examine the case as to the facts

and the law. It had to make a full assessment of the question of

guilt or innocence and was not in doing so limited in its competence

in any way. The limitations on the Court of Appeal's powers as a

result of the prohibition of reformatio in pejus related only to

sentencing and cannot therefore be considered to be relevant to the

decisive question in the determination of the criminal charge, i.e.

the question of guilt or innocence. Furthermore, when determining

this question the Court of Appeal did not base its examination

exclusively on the District Court file. Both parties were given the

opportunity to submit further written observations and the applicant

indeed did so.

50. The right of the accused to be present when a court determines

whether or not he is to be found guilty of the criminal charges

brought against him, and to be able to present to the court what he

finds is of importance in this respect, is not only an additional

guarantee that an endeavour will be made to establish the truth, but

it also helps to ensure that the accused is satisfied that his case

has been determined by a tribunal, the independence and impartiality

of which he could verify. Thereby justice is from the accused's

point of view seen to be done. Furthermore, the object and purpose of

Article 6 (Art. 6) taken as a whole require that a person charged with

a criminal offence has a right to take part in a hearing.

Sub-paragraphs (c) and (d) of paragraph 3 (Art. 6-3-c, 6-3-d)

guarantee the right to defend oneself in person and to examine or have

examined witnesses and such rights cannot be exercised without the

accused being present (cf. also Eur. Court H.R., Colozza and Rubinat

judgment of 12 February 1985, Series A no. 89, p. 14, para. 27).

51. The guarantee of a public hearing in Article 6 para. 1

(Art. 6-1) of the Convention is one of the fundamental principles of

any democratic society. By rendering the administration of justice

visible publicity contributes to the maintenance of confidence in it.

The public nature of the hearings, where issues of guilt and innocence

are determined, ensures that the public is duly informed and that the

legal process is publicly observable.

52. Where a power as the one conferred on the Court of Appeal, as

described above in para. 49, is exercised in proceedings which form a

normal part of the determination of the criminal charge brought against

the applicant, the Commission finds that Article 6 para. 1 (Art. 6-1)

of the Convention requires that he should be allowed a hearing and to

be present at such a hearing if he so requests. Since he did not,

however, obtain such a hearing Article 6 para. 1 (Art. 6-1) has been

violated. In these circumstances the Commission does not find it

necessary to determine whether other elements of the proceedings in

the Court of Appeal were at variance with this provision.

Conclusion

53. The Commission concludes, by seventeen votes to two, that

there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission President of the Commission

H.C. KRÜGER C.A. NØRGAARD

Dissenting opinion of MM. G. Jörundsson and H. Danelius

It follows from the case-law of the European Court of Human

Rights that the absence of a public hearing before a court of appeal

may be justified by the special features of the appeal proceedings.

Thus, the Court has accepted that Article 6 para. 1 of the Convention

did not require a public hearing in leave-to-appeal proceedings

(Monnell and Morris judgment, Series A no. 115, p. 22, para. 58) and

in proceedings involving only questions of law (Sutter judgment,

Series A no. 74, p. 13, para. 30).

In the Ekbatani case, which concerned the question whether a

public hearing had been required before a Swedish Court of Appeal, the

European Court, after a detailed examination of the nature of the case

and the powers of the Court of Appeal, concluded that in that case

there had been no special features to justify a denial of a public

hearing and of the applicant's right to be heard in person (Ekbatani

judgment, Series A no. 134, p. 14, paras. 32-33).

In our opinion, however, the present case is so different from

the Ekbatani case as to justify a different conclusion. Our reasoning

is as follows.

The applicant Ekbatani was charged with having threatened a

civil servant, who was the complainant in the case. Ekbatani denied

the facts upon which the charge was based and presented a different

version of what had happened. However, he was convicted by the

District Court on the basis of the evidence given by the complainant.

For the Court of Appeal the crucial question therefore concerned the

credibility of the two persons involved. The Court of Appeal had to

consider whether the evidence given by the complainant was

sufficiently reliable to refute the different story told by Ekbatani

or whether there still existed a doubt which would lead to Ekbatani's

acquittal. The Court of Appeal decided, without a hearing, to confirm

the District Court's conviction. The European Court of Human Rights

considered that the question of the applicant's guilt or innocence

"could not, as a matter of fair trial, have been properly determined

without a direct assessment of the evidence given in person by the

applicant - who claimed that he had not committed the act alleged to

constitute a criminal offence ... - and by the complainant". Accordingly,

the European Court considered that "the Court of Appeal's re-examination

of Mr. Ekbatani's conviction at first instance ought to have comprised

a full rehearing of the applicant and the complainant" (para. 32 of

the judgment).

The present case is in our view of a different character

insofar as no question of credibility or of assessment of conflicting

evidence arose. The District Court found it established that the

saloon rifle had been in the applicant's possession, and this was not

contested by the applicant. Nor did the applicant claim to have been

the holder of a licence under the Firearms Act. The Court of Appeal

found those uncontested facts to be sufficient to lead to a finding of

guilt.

The facts upon which the applicant based his defence, namely

that he had not been the owner of the rifle and that the breech-block

of the rifle had been missing, were, as the courts saw it, irrelevant

since they could not relieve the applicant of responsibility under

the Firearms Act.

In Swedish criminal procedure a review upon appeal is in

principle a full review of the case. Nevertheless, the particular

grounds on which the appeal is based are an important element in the

proceedings, and the Court of Appeal will in the first place examine

whether these grounds are such as to lead to a reversal of the

judgment of the lower court. Insofar as relevant facts relating to

the offence are not contested in the appeal, the Court of Appeal will

normally find no reason to proceed to a new examination of these

facts, in particular where - as in the present case - the facts are

trivial and involve only a minor offence and where moreover the

penalty is merely a modest fine.

Consequently, there was no need in the present case for

clarification of any facts in the proceedings before the Court of

Appeal. The questions raised in the appeal were legal in character.

They were, in particular, whether the possessor of a firearm, who is

not at the same time its owner, is responsible under the Firearms Act,

and whether the Firearms Act is applicable to a rifle whose breech-block

is missing.

In these circumstances, we consider that the features of the appeal

proceedings in the present case were such as to justify the absence of

a hearing. We have therefore voted against the conclusion in para. 53

of the Report.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

28 July 1986 Introduction of the application

18 December 1986 Registration of the application

Examination of admissibility

7 October 1988 Commission's decision to give notice

of the application to the respondent

Government

27 December 1988 Submission of the Government's

observations

13 July 1989 Submission of the applicant's

observations

4 October 1989 Commission's decision to declare

part of the application admissible

Examination of the merits

10 February 1990 Consideration of the state of

proceedings

8 May 1990 Commission's deliberations on the

merits, final votes and adoption

of the Report

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FEJDE v. SWEDEN

FEJDE v. SWEDEN

LEXI