Lexploria

Application No. 11826/85

Reinhard HELMERS

against

SWEDEN

REPORT OF THE COMMISSION

(adopted on 6 February 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. 17-36) .............. 3

A. The particular facts of the case

(paras. 17-27) ..................................... 3

B. Relevant domestic law

(paras. 28-36) ..................................... 5

a. The Penal Code ................................. 5

b. The Code of Judicial Procedure ................. 6

III. OPINION OF THE COMMISSION (paras. 37-61) ............... 9

A. Point at issue

(para. 37) ......................................... 9

B. Applicability of Article 6 of the Convention

(paras. 38-45) ..................................... 9

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

(paras. 46-61) ..................................... 11

APPENDIX I: History of the proceedings before

the Commission .............................. 14

APPENDIX II: Decision as to the admissibility of

the application ............................. 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, Reinhard Helmers, is a German citizen, born in

1930. He resides at Lund, Sweden.

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 proceedings relating to private criminal

prosecution instituted by the applicant. In these proceedings the

Court of Appeal (hovrätt) of Skåne and Blekinge considered the case

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 in the determination of his civil rights as guaranteed by

Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 6 February 1985 and

registered on 28 October 1985. On 14 March 1986 the Commission

declared inadmissible the applicant's complaints under Articles 9, 10,

13, 14, 17 and 25 of the Convention. The Commission furthermore

decided to give notice of the application, insofar as it concerned

Article 6 of the Convention, to the respondent Government in

accordance with Rule 42, para. 2 (b) of its Rules of Procedure without,

however, requesting the Government to submit observations.

6. On 10 December 1986 the Commission decided to adjourn the

further 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).

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

to submit written observations on the admissibility and merits of the

part of the application already communicated to them under Rule 42

para. 2 (b) of the Commission's Rules of Procedure.

8. The Government's observations were submitted on 20 October 1988

and the applicant's observations in reply were submitted on

15 December 1988 and 24 February 1989.

9. On 9 May 1989 the Commission declared admissible the

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

concerning the lack of a public hearing in the Court of Appeal. The

remainder of the applicant's complaints under Article 6 of the

Convention was declared inadmissible.

10. The parties were then invited to submit any additional

observations on the merits which they wished to make. The applicant

submitted additional observations on 27 July 1989, a copy of which was

transmitted to the Government. On 18 August 1989 the Government

informed the Commission that they did not find it necessary to submit

any further observations on the merits of the case.

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

accordance with Article 28 (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 11 May

and 8 October 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

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

13. The text of this Report was adopted on 6 February 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 30 April 1979 the applicant applied for an academic post at

the University of Lund. The applicant was not appointed for this post

and he claims that this was due to an alleged continued discrimination

on the basis of political libel. On 14 April 1980 the applicant

therefore made an appeal to the Swedish central university authority

where he explained what kind of irregularities had in his opinion

taken place. A university committee was to submit an opinion on the

appeal. In its certificate of 2 October 1980 the committee, in its

summing up of the applicant's appeal, stated inter alia that the

applicant had accused another colleague of having participated in the

administrative campaign against the applicant and of having been

rewarded for this with an appointment. The applicant considered that

he had been accused of a criminal offence by the contents of this

certificate in that he was alleged to have defamed a colleague as

corrupt, and the applicant thus took steps in order to have this

alleged defamation removed from the official record. For this purpose

the applicant reported the circumstances to the police. On

26 November 1980, however, the Chief District Prosecutor of Lund

decided not to pursue investigations relating to the offence which the

applicant alleged had been committed by those responsible for issuing

the certificate of 2 October 1980. This decision was upheld by the

Director of the regional public prosecution authority and subsequently

by the Prosecutor General.

18. In these circumstances the applicant decided to institute

private prosecution proceedings in the District Court (tingsrätt) of

Lund in accordance with Chapter 20, Section 8 of the Code of Judicial

Procedure against Mr. F. who had been a member of the committee

responsible for the certificate and Mrs. E. who had been the committee

secretary. In these proceedings the applicant accused Mr. F. and

Mrs. E. of defamation and false certification, thus allegedly

violating Chapter 5, Section 1 and Chapter 15, Section 11 of the Penal

Code (brottsbalken). He also accused Mrs. E. of having instigated

Mr. F. to commit a crime. Finally the applicant claimed damages for

defamation amounting to one Swedish crown in each case from Mr. F.

and Mrs. E.

19. The District Court of Lund held a public hearing in the case

on 9 September 1981. The applicant, Mr. F. and Mrs. E. as well as

their attorney were present and had the opportunity to address the

Court.

20. On 19 November 1981 judgment was delivered by the District

Court. In its judgment the Court found that the wording of the

committee certificate of 2 October 1980 was likely to expose the

applicant to the disrespect of others. However, as to Mrs. E. the Court

found that she could not be held responsible for the statement of the

committee as she was not a member of it. Furthermore, the Court found

no proof for the allegation that Mrs. E. had instigated Mr. F. to

commit any crimes. As regards Mr. F. the Court found that it was not

proven that he had made any untrue statement contrary to his

knowledge. Consequently, the applicant's private prosecution was

rejected. Due to this outcome of the private prosecution the

compensation claim was dismissed.

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

Appeal of Skåne and Blekinge on 9 December 1981. The grounds of

appeal refer to the fact that the applicant had been prevented from

ascertaining the identity of the author of the alleged libel as set

out in the certificate of 2 October 1980. Furthermore the grounds of

appeal refer to the allegedly unlawful reasons given for the decision

which was based on extraneous material, mistakes of fact and "the

false interpolation of quotations". The applicant furthermore

requested a public hearing before the Court of Appeal.

22. On 16 February 1982 the Court of Appeal sent the applicant's

appeal petition and other documents to Mr. F. and Mrs. E. with a

direction that they should reply. Their reply to the Court was

submitted on 11 March 1982. It was forwarded to the applicant on

12 March 1982 together with a notice that the case could be decided

without an oral hearing and that he had the possibility, within 14

days, to submit his conclusions to the Court of Appeal. The applicant

submitted his observations on 16 April 1982 and these were forwarded

to Mr. F. and Mrs. E. on the same day together with a notice similar to

the one that had been sent to the applicant on 12 March 1982.

23. Between April and November 1982 the parties handed in further

written submissions to the Court of Appeal. The applicant contends

that further evidence was introduced before the Court of Appeal by the

defendants, allegedly contrary to the Code of Judicial Procedure. In

particular he refers to four newspaper cuttings of articles written by

third persons together with the press communiqué issued by the

Secretary to the Commission on 15 March 1982, all relating to the

applicant's previous application to the Commission, no. 8637/79, which

was declared inadmissible on 10 March 1982. The applicant requested

the Court of Appeal to reject this evidence.

24. On 23 September 1983 the Court of Appeal determined the case on

the basis of the case file and without a public hearing. The judgment

was delivered on 28 November 1983.

25. In its judgment the Court of Appeal first rejected the

applicant's claim that the above-mentioned new evidence be rejected.

As to the merits of the case the Court found both Mr. F. and Mrs. E.

responsible for the contents of the certificate of 2 October 1980 and

that this was likely to expose the applicant to the disrespect of others.

However, the Court found that both Mr. F. and Mrs. E. were bound to

express themselves and that they had had reasonable grounds for the

statements in the certificate. Therefore, they could not be sentenced

for defamation. Neither could the charges for false certification

or for instigation of defamation or false certification be sustained.

Because of the acquittal of the criminal charges the claim for damages

was dismissed.

26. The applicant appealed against this judgment to the Supreme

Court (Högsta domstolen) referring to several provisions of procedural

law and legal writings in accordance with which he considered himself

entitled to a public hearing where the judgment on the merits given by

the Court of Appeal was based on new evidence, where individuals'

opinions were at stake, where the first instance judge had allegedly

demonstrated bias and where the applicant's claim for damages had to

be assessed.

27. On 21 December 1984 the Supreme Court refused the applicant

leave to appeal.

B. Relevant domestic law

a. The Penal Code

28. (Swedish)

"5 kap. 1 §: Den som utpekar någon såsom brottslig

eller klandervärd i sitt levnadssätt eller eljest lämnar

uppgift som är ägnad att utsätta denne för andras

missaktning, dömes för 'förtal' till böter.

Var han skyldig att uttala sig eller var det eljest med

hänsyn till omständigheterna försvarligt att lämna uppgift i

saken, och visar han att uppgiften var sann eller att han

hade skälig grund för den, skall ej dömas till ansvar."

(Translation)

"Chapter 5, Section 1: A person who points out someone

as being a criminal or as reproachable for his mode of life,

or otherwise gives information likely to expose him to the

disrespect of others, shall be sentenced for defamation to

pay a fine.

If he was in duty bound to express himself or if,

considering the circumstances, the giving of information was

defensible, and if he proved that the information was true

or that he had reasonable grounds for it, he shall not be

held responsible."

29. (Swedish)

"15 kap. 11 §: Lämnar någon i intyg eller annan urkund

osann uppgift om vem han är eller om annat än egna

angelägenheter eller upprättar någon för skens skull urkund

rörande rättshandling, dömes, om åtgärden innebär fara i

bevishänseende, för 'osant intygande' till böter eller

fängelse i högst sex månader. År brottet med hänsyn till

att det innefattar missbruk av tjänsteställning eller eljest

att anse som grovt, skall dömas till fängelse i högst två

Ã¥r."

(Translation)

"Chapter 15, Section 11: If, in a certificate or other

document, a person gives untrue information about his

identity or about other than his own concerns, or if a

person for the sake of appearances prepares a document

concerning a judicial act, he shall, if the action

jeopardises proof, be sentenced for false certification to

pay a fine or to imprisonment for at most six months. If

the crime is considered grave because it involves misuse of

official position or for other reasons, imprisonment for at

most two years shall be imposed."

30. (Swedish)

"23 kap. 4 §: Ansvar som i denna balk är stadgat för

viss gärning skall ådömas ej blott den som utfört gärningen

utan jämväl annan som främjat denna med råd eller dåd. Den

som ej är att anse såsom gärningsman dömes, om han förmått

annan till utförandet, för anstiftan av brottet och eljest

medhjälp därtill ..."

(Translation)

"Chapter 23, Section 4: Punishment provided for in this

Code shall be imposed not only on the person who committed the

offence but also on anyone who furthered it by advice or

deed. A person who is not regarded as the offender shall,

if he induced another to commit the offence, be punished for

instigation of the crime or for being an accessory to the

crime ..."

b. The Code of Judicial Procedure

31. (Swedish)

"20 kap. 8 §: Målsäganden må ej väcka åtal för brott,

som hör under allmänt åtal, med mindre han angivit brottet

och åklagaren beslutat, att åtal ej skall äga rum ..."

(Translation)

"Chapter 20, Section 8: The injured person may not

institute criminal proceedings for offences which fall under

public prosecution unless he has reported the offence and

the prosecutor has decided not to prosecute ..."

32. (Swedish)

"22 kap. 1 §: Talan mot den misstänkte eller annan om

enskilt anspråk i anledning av brott må föras i samband med

åtal för brottet. Upptages ej anspråket i samband med

åtalet, skall talan föras i den för tvistemål stadgade

ordningen."

(Translation)

"Chapter 22, Section 1: A private claim against the

suspect or a third person in consequence of an offence may

be consolidated with the prosecution of the offence. When

the private claim is not entertained in conjunction with the

prosecution, the claim shall be instituted in the manner

prescribed for civil actions."

33. (Swedish)

"22 kap. 7 §: Föres talan om enskilt anspråk i anledning

av brott i samband med åtalet och finnes, att den åtalade

gärningen icke är straffbar, må talan dock prövas i målet."

(Translation)

"Chapter 22, Section 7: If a private claim based upon an

offence is consolidated with the prosecution and it is found

that the act charged is not punishable, the private claim may

nonetheless be adjudicated on the merits in the proceedings."

34. (Swedish)

"51 kap. 21 §: 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.

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)

"Chapter 51, Section 21: The Court of Appeal may

determine the case without a main 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 and there is no reason to impose

a more severe sanction than those mentioned above or to

impose any other sanction ..." *

35. (Swedish)

"51 kap. 23 §: Har vid huvudförhandlingen i underrätten

rörande viss omständighet vittne eller sakkunning hörts inför

rätten eller syn å stället hållits och beror avgörandet även

i hovrätten av tilltron till den bevisningen, må ändring i

underrättens dom i denna del ej ske annat än till den

tilltalades förmån, med mindre beviset upptagits ånyo vid

huvudförhandlingen i hovrätten eller ock synnerliga skäl

föreligga, att dess värde är annat, än underrätten antagit."

(Translation)

"Chapter 51, Section 23: If testimony of a witness or

an expert was given at the main hearing in the lower court

with respect to a particular circumstance, or if an

inspection was made during the main hearing in the lower

court, and the evaluation of such evidence is decisive for

the outcome on appeal, the relevant part of the lower court

judgment may not be changed by the Court of Appeal, except

for the benefit of the defendant, unless the Court of Appeal

takes the evidence again at a main hearing, or if

extraordinary reasons justify the conclusion that the value

of the evidence is other than that attached to it by the

lower court."

___________

* This Section has subsequently been amended from 1 July 1984.

The amendment is, however, not relevant to the present case.

36. (Swedish)

"51 kap. 25 §: 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)

"Chapter 51, Section 25: In 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 were 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

37. The issue to be determined is whether the fact that there was

no public hearing in the proceedings before the Court of Appeal when

it determined the applicant's appeal against the judgment of the

District Court violates 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 (Art. 6) of the Convention

38. 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."

39. The Government contend primarily that the above provision is

not applicable to the criminal proceedings instituted by the applicant.

Furthermore, as regards the action for damages, the Government contend

that the insignificant sum claimed provides a solid basis for assuming

that the significance of the action for damages was entirely symbolic.

Taken together with the fact that there was no contestation as to the

sum claimed as such, this implies that no civil right was at issue.

In the alternative the Government maintain that, had the criminal

charge been dismissed, the claim for damages could nevertheless have

been adjudicated on the merits in the proceedings. Consequently,

although the question of the outcome of the defamation charge was of

vital importance to the claim for damages, it was, as the case lay

before the tribunals, nevertheless a separate issue to which Article 6

(Art. 6) is not applicable.

40. The applicant submits that the right to have libellous

statements deleted from public records, especially if they serve as a

means of discrimination, is a civil right within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. Such statements are

the primary attack on the right of the individual, an attack on his

personal integrity, and it follows from the case-law of the Convention

organs that the right to a good reputation is a civil right in respect

of which a procedure fulfilling the requirements of Article 6 must be

available.

41. The Commission recalls that Article 6 para. 1 (Art. 6-1) of

the Convention applies only to the determination of an applicant's

"civil rights and obligations or of any criminal charge against him".

As the applicant was not charged with having committed any criminal

offence Article 6 para. 1 (Art. 6-1) would only be applicable in the

present case if there was a dispute over a "right" of the applicant

and if this "right" was of a "civil" nature.

42. The Commission recalls that subsequent to the issuing of the

certificate of 2 October 1980 the applicant considered that he had

been accused of having committed a criminal offence in that he

allegedly had defamed a colleague as corrupt. The applicant

considered such allegations as libel but as the public prosecutor

refused to take any action the applicant instituted private criminal

prosecution, inter alia charging Mr. F. and Mrs. E. with defamation.

He also introduced in the same proceedings a civil claim against Mr. F.

and Mrs. E. In these circumstances the Commission is satisfied that

there existed a veritable dispute in the case. The applicant alleged

that he had been the subject of libel and Mr. F. and Mrs. E. denied

these allegations.

43. The Commission also finds that the dispute concerned a "civil

right". This follows from the Commission's case-law according to

which the right to enjoy a good reputation is a "civil right" (cf.

No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91 and No. 8366/78, Dec. 8.3.79,

D.R. 16 p. 196). This view was accepted by the European Court of

Human Rights in its judgment in the Golder case (Eur. Court H.R.,

Golder judgment of 21 February 1975, Series A no. 18). In addition,

the Commission recalls the applicant's previous application no. 8637/79

where, in its decision on admissibility of 10 March 1982, it stated

that the right to enjoy a good reputation and the right to have

determined before a tribunal the justification of attacks on such

reputation must be considered to be civil rights within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. The Commission stated

that the applicant could institute a private criminal prosecution for

defamation against the persons in question if he wished to do so and

it was thus satisfied that this remedy, private criminal prosecution

for defamation, would be a sufficient remedy under Article 6 para. 1

(Art. 6-1) of the Convention in order to have the justification of the

alleged attacks upon the applicant's professional reputation

determined by a tribunal.

44. Accordingly, since the dispute between the parties concerned a

"civil right" the applicant was entitled to have the case heard by a

"tribunal" satisfying the conditions laid down in Article 6 para. 1

(Art. 6-1) of the Convention. According to the case-law of the

Commission and the European Court of Human Rights 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. The

manner of application of this provision depends, however, on the

circumstances of the case (cf. for example Eur. Court H.R., Axen

judgment of 8 December 1983, Series A no. 72, p. 12, para. 27 with

further references).

45. 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

46. 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. As already indicated above 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 special features of the proceedings

involved (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 by the special features of the

domestic proceedings viewed as a whole.

47. In deciding 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).

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

Commission recalls that it has, as well as the 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 case (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 determined 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.

49. The Commission had already, in earlier cases, acknowledged that

the absence of an oral procedure before appeal courts does not

constitute a violation of Article 6 para. 1 (Art. 6-1) 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 (recours en réforme)

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

50. The Commission also recalls its partial decision on the

admissibility of Application No. 9315/81 (Dec. 15.7.83, D.R. 34

p. 96), where it found that there was no overriding right for an

appellant to be present before an appeal court in a criminal case

where there was no power for this court to increase the appellant's

sentence. The Commission concluded that the reasons given for the

Appeal Court's rejection of the applicant's appeal were based on

objective conclusions, which were derived from an examination of the

case-file which was before it, and did not involve a direct assessment

of the applicant's personality. In these circumstances and having

regard to the fact that he was represented in the proceedings by

counsel, the applicant's right to a fair determination of the criminal

charge against him was not prejudiced by his absence from the

proceedings before the Appeal Court.

51. The Commission and the 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, and the

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

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

law the case was dealt with by the national courts as a "criminal"

case, the applicant assuming the role of prosecutor. Furthermore, the

Commission recalls that there was indeed a dispute as to whether the

act committed constituted a criminal offence. The "civil" claim for

damages was based on the allegation that Mr. F. and Mrs. E. were guilty

of defamation and the outcome in regard to the claim for damages depended

on the outcome of the defamation charges. Under the Swedish Code of

Judicial Procedure, the nature of the appeal was in principle a full

appeal where the Court of Appeal was called upon to examine the case as

to the facts and the law.

53. As far as the scope of the Court of Appeal's powers are

concerned these are set out in Chapter 51, Section 21 of the Code of

Judicial Procedure then in force. It follows from this provision 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 a public 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.

54. The Commission also 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. Since the applicant in his

capacity as "private prosecutor" appealed against the judgment of the

District Court the Court of Appeal could accordingly convict and

sentence Mr. F. and Mrs. E. regardless of the District Court judgment

and regardless of the prohibition in Chapter 51, Section 25 of the

Code of Judicial Procedure against reformatio in pejus.

55. The respondent Government have submitted that the latitude of

the Court of Appeal was limited by the demands made by the parties.

The Commission finds, however, that such "limitation" is quite a

normal feature as regards civil claims and cannot therefore

constitute a reason for deviating from the guarantee of a public

hearing as secured by Article 6 para. 1 (Art. 6-1) of the Convention.

56. 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 publicity requirement

was fulfilled in that, in principle, all official documents were public

and that anyone at any time could visit the Court of Appeal and see

all the documents in the case. Furthermore they submit that the

parties had unlimited possibilities to develop and plead the case in

writing and that the examination of the case in question was in fact

limited to the application of the law where a hearing would not have

added anything of value to the case.

57. It is true 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, a question which in the circumstance of the present case

was of vital importance to the determination of the applicant's civil

right at issue. This the Court of Appeal could determine without any

limitations.

58. Furthermore 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 to

submit new evidence which, in spite of the applicant's protest, was

accepted by the Court.

59. As the Commission and the European Court of Human Rights have

held earlier, the public character of proceedings before the judicial

bodies referred to in Article 6 para. 1 (Art. 6-1) protects litigants

against the administration of justice in secret with no public

scrutiny; it is also one of the means whereby confidence in the

courts, superior and inferior, can be maintained. By rendering the

administration of justice visible, publicity contributes to the

achievement of the aim of Article 6 para. 1 (Art. 6-1), namely a fair

trial, the guarantee of which is one of the fundamental principles of

any democratic society, within the meaning of the Convention (cf. the

above-mentioned Axen judgment, p. 12, para. 25).

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

Appeal is exercised in proceedings which form part of the

determination of the applicant's civil right, the Commission finds

that Article 6 para. 1 (Art. 6-1) of the Convention requires that he

should be allowed a public hearing and to be present at such a hearing

if he so requests. However, since he did not, regardless of his

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

violated.

Conclusion

61. The Commission concludes unanimously 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)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

______________________________________________________________________

6 February 1985 Introduction of the application

28 October 1985 Registration of the application

Examination of admissibility

14 March 1986 Commission's decision to declare part

of the application inadmissible and

to give notice of the application,

insofar as it concerned Article 6

of the Convention, to the

respondent Government

10 December 1986 Commission's decision 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

20 October 1988 Submission of the Government's

observations

15 December 1988)

24 February 1989) Submission of the applicant's

observations

9 May 1989 Commission's decision to declare

part of the application admissible

Examination of the merits

27 July 1989 Submission of the applicant's

observations on the merits

7 October 1989 Consideration of the state of

proceedings

6 February 1990 Commission's deliberations on the

merits, final votes and adoption

of the Report

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HELMERS v. SWEDEN

HELMERS v. SWEDEN

LEXI