Lexploria

Application No. 11274/84

Jan-Åke ANDERSSON

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 15 March 1990)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-16) .............................. 1

A. The application

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

B. The proceedings

(paras. 5-11) ....................................... 1

C. The present Report

(paras. 12-16) ...................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 17-30) ............... 3

A. The particular facts of the case

(paras. 17-25) ...................................... 3

B. Relevant domestic law

(paras. 26-30) ...................................... 5

III. OPINION OF THE COMMISSION (paras. 31-51)................. 7

A. Point at issue

(para. 31) .......................................... 7

B. Applicability of Article 6 para. 1 of the Convention

(paras. 32-35) ...................................... 7

C. Compliance with Article 6 para. 1 of the Convention

(paras. 36-51) ...................................... 8

Dissenting opinion of MM. H.G. Schermers and H. Danelius ..... 12

APPENDIX I: HISTORY OF THE PROCEEDINGS ................... 14

APPENDIX II: DECISION AS TO THE ADMISSIBILITY ............. 15

I. INTRODUCTION

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

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

Commission.

A. The application

2. The applicant is a Swedish citizen, born in 1944. He resides

at Torsås, 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. Hans Corell, Ambassador, Under-Secretary at the Ministry for

Foreign Affairs, Stockholm.

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

Appeal (hovrätt) of Skåne and Blekinge 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 16 October 1984 and

registered on 3 December 1984. On 7 October 1985 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 without, however, requesting the Government to submit

observations for the time being. The Commission furthermore decided

to adjourn the examination of the case pending the outcome of the case

Ekbatani v. Sweden brought before the European Court of Human Rights.

The Court pronounced its judgment in this case on 26 May 1988

(Series A no. 134).

6. On 9 July 1988 the Commission decided to invite the Government

to submit written observations on the admissibility and merits of the

application.

7. The Government's observations were submitted on 25 October 1988

and the applicant's observations in reply were submitted on 27 April 1989.

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

Procedure was granted to the applicant on 3 November 1988.

9. On 10 July 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.

10. The parties were then invited to submit any additional

observations on the merits which they wished to make. On

4 September 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.

11. 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 25 July and 4 September 1989. The Commission now finds

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

C. The present Report

12. 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

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir. Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

13. The text of this Report was adopted on 15 March 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.

14. The purpose of the 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.

15. 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.

16. 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

17. On 26 February 1983 the applicant was stopped by the police

while driving a tractor on a highway (motortrafikled) restricted to

certain types of vehicles, not including a tractor. The applicant

was charged with a violation of Sections 139 and 144 of the Traffic

Ordinance (vägtrafikkungörelsen) but, although he admitted the factual

circumstances, he contested having violated any laws.

18. The case was therefore brought before the District Court of

Ronneby (Ronneby tingsrätt). Before this Court the applicant

requested the hearing of one of the policemen who had stopped him as

well as the production of the official weather reports concerning the

period in question. Finally he asked the Court to appoint a defence

counsel under the legal aid system since he was without sufficient

means.

19. On 8 June 1983 the Court refused to appoint counsel, the

reason being that the case was very simple and that the applicant

could not be regarded as being in need of legal assistance in order to

be able to defend himself. The applicant appealed against this

decision to the Court of Appeal referring to the right to a fair trial

in the light of the fact that his "opponent" was a professional

prosecutor. On 20 June 1983 the Court of Appeal upheld the District

Court's decision. This decision was not subject to appeal.

20. The case against the applicant was heard by the District

Court on 21 September 1983. The applicant was heard as well as the

policeman named by the applicant. The Court, however, did not obtain

the official weather reports. After hearing the parties and after

evaluating certain written evidence the District Court found the

applicant guilty of the charge brought against him and sentenced him

to pay a fine of 400 Swedish crowns. In its judgment the Court stated

as follows:

(translation submitted by the Government)

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

the following statement: He was on his way from Hässleholm to

Torsås driving a tractor he had just bought. He had travelled

with his father to Hässleholm that morning and they had then,

i.a., travelled the same distance but in the opposite

direction. The mist had been very dense already in the

morning and (the applicant) made no special observations as

regards the road during the trip. He is unaware of the

concept 'motortrafikled'. When he arrived on the

'motortrafikled' west of Karlshamn, it was so misty that he

saw no road signs that called for his attention. He was

therefore unaware of the character of the road he was driving

on and even if he had noticed a road sign indicating

'motortrafikled' he would not have known what restrictions

this would imply as regards traffic with certain vehicles.

Police officer Roger Bjurbrandt has been heard as a witness

but has not given any substantive information except that the

weather was normal in the area of Ronneby without any signs of

mist.

(The applicant) - who was driving in the manner alleged by the

public prosecutor - drove a long distance by tractor and

should therefore have paid particular attention to the

rules applicable as regards the driving of such a vehicle.

The fact that the weather was misty does not relieve him from

his obligations as a driver. He shall therefore be convicted

in accordance with the charge against him."

21. The applicant appealed against this judgment to the Court of

Appeal of Skåne and Blekinge. He maintained inter alia that the

proceedings before the District Court had been "unbalanced" and that

the judge had interrupted him over and over again, preventing him from

making his statement as he found appropriate. He also complained of

the fine imposed.

22. In reply to this appeal the prosecution submitted a written

statement of 31 October 1983 in which it was maintained that the

applicant had violated the Traffic Ordinance. The prosecution

refrained from requesting the hearing of the policeman as a witness

and indicated that the case could be dealt with without a hearing

before the Court of Appeal. A copy of this statement was sent to the

applicant by the Court of Appeal together with a covering letter of

2 November 1983 stating that the case could be dealt with without a

hearing and that the applicant had two weeks to submit his statement

in reply to the observations made by the prosecution. In his written

observations of 9 November 1983 the applicant stated inter alia that

it would be of great interest to hear the policeman as a witness again

and to examine the weather reports. He furthermore requested that the

hearing be held at Karlskrona and preferably not on a Thursday.

Finally he requested free legal assistance since he needed it and

could not afford to pay for counsel himself. The Court of Appeal did

not accede to the applicant's requests.

23. The Court of Appeal gave judgment in the case on

10 February 1984. Before this Court there was no public hearing and

neither of the parties appeared before the Court. In its judgment,

which was not delivered in public but sent to the parties, the Court

stated:

(translation)

"Court of Appeal judgment

The Court of Appeal upholds the District Court judgment.

The Court of Appeal rejects (the applicant's) request for

an official defence counsel.

Claims before the Court of Appeal.

(The applicant) has requested that the charges against

him be rejected. The prosecution objects to a change.

(The applicant) has furthermore requested the

appointment of an official defence counsel.

The Court of Appeal's reasons

(The applicant's) rights before the Court of Appeal

can be secured without the appointment of an official

defence counsel.

From the photos submitted, it appears that the character as

a 'motortrafikled' of (the road in question) did appear from

appropriate and visible road signs at Stensnäs. For this

reason and since (the applicant) nevertheless drove

the tractor on (the road) from Stensnäs to Sörby he

committed the offence with which he was charged by

the prosecution."

24. The applicant subsequently asked the Supreme Court (Högsta

domstolen) for leave to appeal against this judgment. In his request

he stated:

(translation)

"The proceedings before the Court of Appeal were of a very

unbalanced character. The prosecution was free to submit

its arguments against the accused whereas the accused was

treated in a degrading manner. The proceedings before the

Court of Appeal did not comply with what is stipulated in

the human rights and freedoms. Since a judgment in Sweden

may be held against a person for the rest of his life it

would appear to be of great importance that the court

proceedings take place in a balanced manner and that every

person is treated equally."

25. The Supreme Court refused leave to appeal on 26 April 1984.

B. Relevant domestic law

26. The relevant penal provisions of the traffic legislation are

found in the 1972 Traffic Ordinance. From Sections 139 and 144

it follows that tractors are not allowed on certain types of highways,

i.a. "motortrafikled". Persons violating these rules are, according to

Section 164, liable to pay a fine, at most 1.000 Swedish crowns.

27. Provisions regulating traffic signs are found in the 1978

Traffic Sign Ordinance (vägmärkesförordningen). In Section 24 sign

1.4.3 is featured. This sign indicates where the "motortrafikled"

begins. The same sign may also, but need not, be used as an

introductory sign together with another sign indicating when the

"motortrafikled" begins.

28. The Code of Judicial Procedure in its Chapter 51, contains

rules about appeals in criminal cases. Such an appeal shall be

brought before a court of appeal whose review of the case covers both

facts and law.

29. Chapter 51, Section 21 of the Code of Judicial Procedure

concerning the proceedings before the Court of Appeal read at the

relevant time:*

(Swedish)

"Hovrätten äge utan huvudförhandling företaga mål till

avgörande, om talan av åklagaren föres allenast till den

tilltalades förmån eller talan, som föres av den

tilltalade, biträtts av motparten.

_______________

* This Section has subsequently been amended as from

1 July 1984. The amendment is, however, not relevant

to the present case.

Har underrätten frikänt den tilltalade eller eftergivit

påföljd för brottet eller funnit honom vara på grund av

själslig abnormitet fri från påföljd eller dömt honom till

böter eller fällt honom till vite och förekommer ej

anledning till ådömande av svårare straff än nu sagts eller

att ådöma annan påföljd, må målet avgöras utan

huvudförhandling ..."

(translation)

"The Court of Appeal may decide the case without a hearing if

the prosecutor appeals only for the benefit of the accused or

if an appeal lodged by the accused is supported by the

opposing party.

The case may be decided without a hearing if the lower court

has acquitted the accused or discharged the offender or found

him to be exempted from punishment by virtue of mental

abnormality or if it has sentenced him to a fine or ordered

him to pay a money penalty (vite) and there is no reason to

impose a more severe sanction than those mentioned above or to

impose any other sanction ..."

30. Chapter 51, Section 25 concerning reformatio in pejus reads:

(Swedish)

"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 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

31. 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 of the Convention.

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

32. 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."

33. 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.

34. 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).

35. 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

36. 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.

37. 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.

above-mentioned Ekbatani judgment p. 13, para. 28).

38. 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 Federal

Court of Justice, 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.

39. 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 in certain circumstances.

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

(Bundesgerichtshof) (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).

40. 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).

41. 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, although the applicant did not dispute the factual

circumstances of the case, 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.

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

Chapter 51, Section 21 of the Code of Judicial Procedure. It follows

from this provision in its wording at the relevant time that if a

person has been acquitted by the District Court, or has been sentenced

by the District Court to a fine, and there appears to be no reason for

the Court of Appeal to sentence this person to a more severe sentence

than a fine, 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.

43. 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 sentenced person than that which

was 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 in

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

reformatio in pejus, 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.

44. 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.

45. The Government have acknowledged that the proceedings before

the Court of Appeal in the present case as well as in the

above-mentioned Ekbatani case involved both questions of fact and

questions of law. They submit, however, 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 court in question. The present case, the Government

submit, is different from the above-mentioned Ekbatani case in that

the applicant admitted the facts. The main task for the Court of

Appeal was accordingly to establish whether the act committed was

punishable or not or whether the applicant should be exonerated from

criminal liability. 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, nor would a rehearing of the witness.

46. 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.

47. 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 against 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 indeed did so.

48. 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-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).

49. The guarantee of a fair and 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 the

administration of justice. 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.

50. Thus, where a power as the one conferred on the Court of

Appeal, as described above in para. 47, 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

51. 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. H.G. Schermers 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. The

facts upon which the applicant's conviction was based are not in

dispute. The applicant did not contest that he had driven a tractor

on a highway ("motortrafikled") where such traffic was forbidden. Nor

did he contest that there had been, as also noted in the Court of

Appeal's judgment, a road sign at the entrance of the highway at

Stensnäs, although he did allege that certain other road signs warning

of the approaching highway and indicating an alternative road had been

missing. His defence was essentially of a different nature. He

argued that the weather had been misty and that he had therefore not

seen any road sign. Consequently he did not know that the road was a

highway ("motortrafikled") and even if he had been aware of this, he

would not have known what traffic limitations this entailed.

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.

From the Court of Appeal's judgment it must be concluded that

the Court had found that neither the weather conditions nor the

applicant's lack of knowledge about the traffic rules could relieve

him of criminal responsibility for his act under the Traffic Ordinance.

Indeed, the fact that the Court does not even discuss the matter in

the judgment shows that the Court had no doubts whatsoever in this

respect. Consequently, there was no need to clarify these matters

further at a public hearing.

Moreover, in regard to the act which constituted the offence

there was no dispute. The applicant never contested that he had

driven the tractor on the highway or that there had been a road sign

at the entrance of the highway indicating the character of the road.

Consequently, no question of credibility or of assessment of conflicting

evidence arose, which makes the case differ on an essential point from

the Ekbatani case.

For these reasons, 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. 51

of the Report.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

16 October 1984 Introduction of the application

3 December 1984 Registration of the application

Examination of admissibility

7 October 1985 Commission's decision to give notice

of the application to the respondent

Government and to adjourn the

further examination of the case

9 July 1988 Commission's decision to invite the

Government to submit observations on

admissibility and merits of the

application

25 October 1988 Submission of the Government's

observations

27 April 1989 Submission of the applicant's

observations

10 July 1989 Commission's decision to declare

part of the application admissible

Examination of the merits

9 December 1989 Consideration of the state of

proceedings

6 March 1990 Commission's deliberations on the

merits and final votes

15 March 1990 Adoption of the Report

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ANDERSSON v. SWEDEN

ANDERSSON v. SWEDEN

LEXI