AS TO THE ADMISSIBILITY OF

                    Application No. 16511/90

                    by Carl Gustaf BJÖRKELUND

                    against Sweden

     The European Commission of Human Rights (Second Chamber) sitting

in private on 17 May 1995, the following members being present:

          Mrs. G.H. THUNE, Acting President

          MM.  H. DANELIUS

               G. JÖRUNDSSON

               S. TRECHSEL

               J.-C. SOYER

               H.G. SCHERMERS

               F. MARTINEZ

               L. LOUCAIDES

               J.-C. GEUS

               M.A. NOWICKI

               I. CABRAL BARRETO

               J. MUCHA

               D. SVÁBY

          Ms.  M.-T. SCHOEPFER, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 29 September 1989

by Carl Gustav BJÖRKELUND against Sweden and registered on

26 April 1990 under file No. 16511/90;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     8 February 1993 and the observations in reply submitted by the

     applicant on 1 December 1993;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts, as submitted by the parties, may be summarised as

follows.

     The applicant is a Swedish citizen, born in 1935, and residing

in Elsinore, Denmark. He is an assistant professor of law by

profession.

A.   The particular circumstances of the case

     In 1970 the applicant became an assistant professor (docent) in

civil law at the University of Lund. The applicant also gave a number

of courses outside the University for a private organisation,

"Kursverksamheten i Lund", which provided him with substantial extra

income. In order for these courses to attract students, it was

necessary to have them approved by the Governing Board of the Legal

Department (institutionsstyrelsen - "the Board") at the University, a

body consisting of representatives of the students, the professors and

the administrative staff. The President of the Board was the Dean of

the Faculty, C.

     The applicant's extra income from external courses stopped in

1979 as the Board decided not to approve his courses. As a result the

applicant's financial situation became difficult. He was declared

bankrupt in 1979 and C, who had accepted to stand surety for certain

bank loans, was forced to honour his surety engagements.

     The applicant was indicted for fraud in connection with some of

his bank loans, but he was eventually acquitted of these charges in

1985.     In 1984 C approached the applicant in order to recover what he

had paid under his surety engagements. The applicant informed him,

however, that he was unable to pay for which reason C, on

24 April 1984, instituted proceedings in the District Court (tingsrätt)

of Lund. C claimed a total of 29,000 SEK plus interest referring to

three bank loans he had paid under the surety engagements. The

applicant did not reject C's claims as such but objected to the claims

being dealt with in the District Court of Lund as he did not consider

this court to be the correct forum following his move to Denmark. On

31 July 1984 the District Court rejected the forum objection,

indicating that an appeal against this decision was only possible in

connection with an appeal against the subsequent judgment on the merits

of the case.

     The applicant's father died in November 1984 and on

20 December 1984 the applicant transferred his part of the inheritance

to his wife as payment for certain claims. On 21 December 1984 the

District Court ordered that the applicant's property should be attached

as security for C's claims.

     On 4 January 1985 the applicant requested legal aid which was

granted by the Court on 28 February 1985.

     On 20 May 1985 the District Court held the first preparatory

hearing. Both parties were present and represented by counsel.

C claimed a total of 29,099 SEK plus interest referring to the fact

that he had been forced to pay this amount under his surety engagement.

Again the applicant did not as such dispute that C had been forced to

pay the bank loans in question but he now presented counter-claims

totalling 29,750 SEK maintaining that C had caused him such a financial

loss due to the fact that C, as President of the Board in 1979, had

participated in deciding not to approve his external courses.

     In the course of the examination of these claims the Court warned

the applicant of the consequences of attempting to delay the case by

presenting objections and counter-claims which were manifestly

ill-founded. After further discussions the parties reached an agreement

according to which the case could be settled if the applicant paid

17,500 SEK to C before 20 June 1985. The Court then adjourned the case

and called the parties to appear again on 16 September 1985.

     It appears that the applicant and C could not agree on the

conditions for payment. The applicant deposited the amount of

17,500 SEK with the Enforcement Office (kronofogdemyndigheten) on

19 June 1985 and considered that he had thereby complied with the

conditions of the agreement, whereas C maintained that the agreement

was null and void as it had been reached on the basis of false

preconditions and since he had not received any money before

20 June 1985.

     In these circumstances the applicant instituted proceedings on

3 July 1985 against C in the District Court of Lund claiming damages

for non-fulfilment of the agreement of 20 May 1985. He furthermore

requested the Court to attach C's property as security for his claims.

     On 23 July 1985 the Court rejected the applicant's claim of

attachment, decided to join the two cases and called the parties to

another preparatory hearing on 16 September 1985.

     On 16 September 1985 C appeared before the Court assisted by

counsel. The applicant did not appear but his counsel, who was present,

submitted that this did not constitute an obstacle to proceeding with

the case. C reiterated his original claims, maintained that the

agreement of 20 May 1985 was null and void and rejected the applicant's

claims for damages. Counsel for the applicant maintained that C was

liable to pay damages due to the fact that C had allegedly caused the

applicant a financial loss in his capacity as President of the Board

which refused to accept the applicant's external courses in 1979.

Furthermore, he maintained that the case should be dismissed due to the

fact that C had not complied with the conditions of the agreement of

20 May 1985, which again had caused the applicant a further financial

loss for which he also claimed damages.

     After having heard the parties' submissions the presiding judge

asked the parties whether they agreed to proceed immediately to the

main hearing (omedelbar huvudförhandling).

     The applicant's counsel stated that he opposed such a hearing as

he intended to call a witness to testify regarding C's contacts with

"Kursverksamheten i Lund" in the summer of 1979. Furthermore, he might

have to adjust his claims in view of certain information which he had

received on the telephone from the Enforcement Office in the course of

the preparatory hearing. In addition, he  could not indicate his

client's position with regard to all of C's claims.

     C had no objection to proceeding with the case. He furthermore

maintained that the only purpose of the applicant's request to call a

witness was to further delay the proceedings as it was clear that C's

position on the Board in 1979 could not form the basis of any claim for

damages.

     On the basis of the above the Court decided to proceed with the

case. At the end of the hearing the presiding judge requested counsel

for the applicant to comment, on the latter's behalf, on the provisions

in the Code of Judicial Procedure (rättegångsbalken) which concern

sanctions for abuse of trial (rättegångsmissbruk). Counsel replied that

these provisions could not be commented upon.

     On 18 September 1985 the applicant submitted a letter to the

Court in which he explained that he had been unable to appear in court

on 16 September 1985 due to a stomach complaint and expressed his

astonishment as to the fact that the Court had referred to the

provisions of the Code of Judicial Procedure concerning abuse of trial.

In so far as this was correct he requested the Court to examine whether

he had been guilty of abuse of trial. He assumed that, if this was the

case, the Court would extensively state its reasons therefor.

     By judgment of 14 October 1985 the District Court ordered the

applicant to pay to C 29,099 SEK plus interest, being the amount C had

paid in order to honour his surety engagements. It furthermore rejected

the applicant's claims for damages. Finally, the Court ordered the

applicant to pay the costs of the proceedings and revoked the

applicant's grant of legal aid. As regards the question of abuse of

trial the Court stated as follows:

     (translation)

     "The claims and the grounds put forward by (the applicant)

     show that he did not wish to have a serious examination of

     the case. There is no other explanation for his behaviour

     than his wish to delay the proceedings and make them

     unpleasant for the other party.

     The presiding judge warned (the applicant and his counsel)

     in the course of the first hearing of the consequences of

     a behaviour which delayed the case.

     What has occurred justifies holding (the applicant) liable

     to a penalty (åläggas straffansvar) in accordance with

     Chapter 9, section 3, of the Code of Judicial Procedure for

     having attempted to delay the proceedings by making clearly

     unfounded allegations and objections."

     The penalty imposed was 50 day-fines of 20 SEK each.

     On 23 October 1985 the applicant appealed against the judgment

of the District Court to the Court of Appeal (hovrätten) of Skåne and

Blekinge. He requested firstly that the Court of Appeal quash the

judgment as the District Court was not the right forum. Secondly, he

requested that the judgment be quashed due to a procedural error

committed by the District Court in that it had proceeded to a hearing

of the case on 16 September 1985 despite the applicant's objections.

     In the alternative the applicant requested the Court of Appeal

to accept his counter-claims, to annul the penalty for abuse of trial

and to reinstate him in his right to legal aid. Finally, the applicant

requested an oral hearing should the Court of Appeal decide to examine

the case on its merits and also permission to submit at a later stage

the evidence he intended to rely on.

     The applicant's forum objection was rejected by the Court of

Appeal by decision of 30 May 1986, which was pronounced on

18 June 1986. It was indicated that the decision could only be appealed

against in connection with the judgment on the merits. The Court then

directed the applicant to complete his petition with respect to the

grounds for the appeal and to specify his evidence.

     The applicant completed his appeal in a submission of

27 August 1986. He referred to his previous submissions of

23 October 1985 and maintained his position. As regards in particular

the penalty for abuse of trial the applicant maintained that he had not

had the possibility of defending himself and that the District Court

had not been able to substantiate the allegation that his objections

and counter-claims had been made with the intention of delaying the

case. The applicant did not in his submissions refer to any other

evidence or witnesses which he wanted the Court of Appeal to examine.

     While the case was pending before the Court of Appeal the

applicant submitted a complaint against the judge of the District Court

to the Parliamentary Ombudsman. By decision of 22 January 1988 the

Ombudsman found, noting that the case was still pending, that the

summons whereby the applicant had been called to appear in court on

16 September 1985 had been incorrectly drafted which, however, had been

of no importance to the case. Furthermore, the Ombudsman criticised the

fact that, on one occasion, the Court had not replied to a letter from

the applicant. Otherwise the Ombudsman did not find any reason to

criticise the judge in so far as the present case was concerned and

thus decided to take no further action.

     On 27 September 1988 the Court of Appeal pronounced judgment in

the case without having held an oral hearing. Its judgment reads as

follows:

     (translation)

     "Claims before the Court of Appeal

     Maintaining that the District Court was not empowered to

     proceed to a main hearing immediately following the

     preparatory hearing, (the applicant) has requeted that the

     Court of Appeal quash the judgment and refer the case back

     to the District Court for renewed examination. Secondly, he

     has claimed that the Court of Appeal accept his set-off

     defence and find that he cannot be required to pay (C) as

     requested. In the alternative (the applicant) has requested

     that the Court of Appeal limit his liability towards (C) to

     the amount on which the parties agreed in accordance with

     the settlement reached and that the Court of Appeal decide

     that (C) must pay damages for the losses (the applicant)

     has suffered due to (C's) breach of the settlement. (The

     applicant) has furthermore requested that the Court of

     Appeal revoke the attachment order, relieve him of the

     obligation to pay (C's) costs in respect of the District

     Court proceedings, oblige (C) to pay (the applicant's)

     costs in respect of his own work during the District Court

     proceedings, revoke the District Court's penalty in the

     form of day-fines for abuse of trial and quash the District

     Court's decision to revoke the grant of legal aid. Finally,

     (the applicant) has requested compensation for legal costs

     in the Court of Appeal.

     The Court of Appeal judgment

     The Court of Appeal finds, as did the District Court, that

     the case is obvious. Accordingly, the District Court was

     empowered to proceed as it did with the main hearing in a

     simplified way immediately following the preparatory

     hearing. It follows that (the applicant's) requests to

     quash the District Court judgment and to remit it to the

     District Court shall be rejected.

     Also (the applicant's) other grounds of appeal are, in so

     far as they concern the main claims, obviously unfounded.

     Thus, the judgment of the District Court shall be confirmed

     in these respects.

     Like the District Court the Court of Appeal finds that (the

     applicant) shall be liable to a penalty (ådömas

     straffansvar) pursuant to Chapter 9, section 3, of the Code

     of Judicial Procedure.

     For the reasons advanced by the District Court, and since

     it is not obviously unjust, the applicant's right to legal

     aid shall cease."

     Following this judgment the applicant applied for leave to appeal

to the Supreme Court (Högsta domstolen). In his submissions of

17 October and 1 December 1988 and of 5 February 1989 he maintained

inter alia his forum objection and his objections in respect of the

proceedings in the District Court. He furthermore complained that the

Court of Appeal had held no oral hearing and that he had not been

requested to submit his list of evidence.

     On 6 April 1989 the Supreme Court refused leave to appeal.

B.   Relevant domestic law

     Provisions concerning the determination of civil cases before

district courts are found in Chapters 42 and 43 of the Code of Judicial

Procedure (hereinafter "the Code"). The main rule is that a case may

only be determined subsequent to the holding of a main hearing. There

are, however, some exceptions to that rule. Thus, the court may, inter

alia, issue a default judgment and a judgment based on a party's

consent to a claim during the preparatory stages of the proceedings

(Chapter 42, section 18).

     In some cases the court may hold a main hearing in a simplified

form with the consent of the parties. Such a main hearing may take

place immediately following a preparatory hearing. The court may also

hold an immediate main hearing regardless of the consent of the parties

if the appropriate resolution of the case is obvious to the court. The

relevant provision was subject to minor amendments in 1988. At the time

at issue in the present case, however, Chapter 42, section 20,

subsections 2 and 3, read as follows:

     (translation)

     "If the parties consent the main hearing may be held in a

     simplified form if no impediment of the kind referred to in

     Chapter 43, section 2, exists. Such a main hearing may take

     place immediately following the preparation or, provided

     that the same judge presides, within fifteen days of the

     final preparatory hearing. Regardless of the consent of the

     parties, a main hearing in the simplified form may be held

     immediately following the preparation if the case appears

     to be obvious.

     At a main hearing in the simplified form all the attendant

     circumstances at the session when the preparatory hearing

     was concluded shall be considered to have occurred also at

     the main hearing without a need to repeat it at the

     latter."

     According to Chapter 43, section 2, a main hearing shall be

cancelled and scheduled for a new date if a party who should be present

in person has appeared only through his counsel; if a witness or an

expert who should be examined fails to appear; if a party wants to

submit new, important arguments or to present new evidence, and it is

found that postponement is required in order to provide the adverse

party with a reasonable opportunity to meet the new arguments or

evidence; or if there is otherwise an impediment to immediate

examination and final determination of the case.

     There has been an opportunity for the court to conduct a main

hearing in a simplified form ever since the enactment of the Code in

1942. According to the travaux préparatoires, this procedure was

intended to be used in minor cases and cases which did not require an

extensive investigation. Furthermore, a simplified main hearing against

a party's wishes could only take place if it was manifest that the

circumstances invoked by the plaintiff could not lead to the granting

of his claim or if the defendant's repudiation of the claim was

manifestly ill-founded (cf. Nytt Juridiskt Arkiv (NJA) II 1943 p. 534).

     The provisions regarding an ordinary main hearing are in

principle applicable to a main hearing in a simplified form. However,

the court may be composed of one professional judge instead of three.

This entails a limitation of the possibility to hold a main hearing in

a simplified form in cases where there is a need for a more extensive

examination of evidence. Examination of evidence should only to a

limited extent be made by a single judge (Government Bill 1983/84:78

p. 69).

     The court has an obligation to ensure that a case is sufficiently

investigated and that irrelevant matters are not involved in the

examination (Chapter 43, section 4, of the Code). If the court finds

that a fact, which a party wishes to prove, is of no importance to the

case or that an item of evidence is unnecessary or evidently would be

of no relevance, the court shall reject it (Chapter 35, section 7, of

the Code).

     Provisions to the effect that a case may be determined in the

absence of a party are found in Chapter 44 of the Code. Section 6 of

that Chapter provides for the possibility to determine a case despite

the fact that the party, who has been ordered to appear in person, is

only present at the hearing through counsel or despite the fact that

the party is not present at all.

     It is for the court to decide at the time of the hearing whether

the personal presence of the party is in fact needed (cf. NJA II 1943

p. 536). According to general provisions concerning proceedings in

civil cases, a party shall attend a main hearing in a district court

in person, unless his presence can be assumed to be without importance

for the examination of the case (the Code, Chapter 11, section 5).

     Provisions concerning proceedings in civil cases before a court

of appeal are found in Chapter 50 of the Code. According to section 4

of that Chapter, an appeal petition shall contain certain information,

such as a specification of the evidence relied upon by the appellant.

It also provides that the appellant shall indicate what he intends to

prove by each specified item. The court shall request the appellant to

complete his petition if it does not comply with section 4 or is

otherwise incomplete.

     As a main rule, the petition shall be served upon the appellee

with a notice directing him to file a reply (Chapter 50, section 8).

However, the court of appeal may immediately pass judgment, without any

further communication with the parties, if it is manifest that the

petition is unfounded. According to the travaux préparatoires, this

possibility may be used mainly in cases where the appellant has lodged

his appeal against the judgment of the district court in order to

prevent that judgment from gaining legal force or for some other undue

purpose (cf. Government Bill 1983/84:78 p. 80).

     The court of appeal may determine a civil case on the basis of

the case-file, i.e. without holding an oral (main) hearing, in some

instances. Chapter 50, section 21, provides, inter alia, that the court

of appeal may dispose of an appeal on the merits without a main

hearing, if the appellant's claim is consented to, if it is obvious

that the claim is unfounded, if both parties have requested that the

appeal be disposed of on the merits without a main hearing or have

declared that they have no objection thereto.

     An appeal may always be decided on the merits without a main

hearing if it is plain that such a hearing is not required.

     When the court of appeal has decided that a case shall be

determined without an oral hearing, the parties shall be requested to

conclude their submissions in writing, unless it is obvious that they

have already done so (Chapter 50, section 22).

     Chapter 9 of the Code contains provisions with regard to certain

types of procedural offences. Sections 1-3 regulate abuse of trial

while section 5 encompasses, inter alia, improper behaviour in court.

A party who is found guilty of abuse of trial within the framework of

a civil case can only be punished in accordance with the Code.

Section 1 deals with the case where a party, against his better

judgment, initiates or causes the initiation of a civil action.

Section 2 concerns cases where a person, against his better judgment,

appeals against a judgment or a court order.

     Chapter 9, section 3, which is the relevant provision in the

present case, has undergone minor changes in 1992. However, at the

relevant time, the provision read as follows:

     (translation)

     "A party in a civil case, or an injured party in a criminal

     case, who endeavours to prolong the course of litigation by

     making clearly unfounded allegations or defences, by

     withholding evidence, or by any other improper measure, is

     punished by day-fines. What has been said of a party shall

     also apply to an intervenor, even if he does not have

     standing as a party."

     Liability according to Chapter 9, section 3, requires that a

party acts in an undue manner in order to delay the trial. Until

1 January 1992, the sanction for abuse of trial according to Chapter 9,

section 3, was so-called day-fines. They ranged from a minimum of one

fine to a maximum of 120 fines. Each fine was an amount of money

ranging from 10 SEK to 1,000 SEK depending on the financial situation

of the person concerned.

     The question of whether a person is guilty of abuse of trial is

dealt with by the court of its own accord (Chapter 19, section 5,

subsection 1, of the Code). The matter can only be dealt with during

the particular proceedings in which the abuse has taken place and only

by that court. The court is competent to examine the issue of abuse of

trial in the composition it had at the time when the offence took

place. The sanction for abuse of trial does not presuppose prosecution.

Nor is it necessary to issue a summons (Chapter 20, section 1 and

Chapter 45, section 2, subsection 1 of the Code). The court may

immediately decide on a sanction for abuse of trial by issuing a

decision during the course of the hearing. However, it may also make

a decision on this issue in its judgment or in a final decision

pertaining to the case.

     The Code of Judicial Procedure does not contain any provisions

according to which the sum of money a court has ordered a person to pay

for abuse of trial may be converted into a term of imprisonment. Such

matters are regulated in the 1979 Act on the Enforcement of Fines

(bötesverkställighetslagen, 1979:189). A conversion may happen but only

after a court has so decided in proceedings conducted according to the

rules governing public prosecution.

COMPLAINTS

     In respect of the proceedings in the District Court the applicant

complains, under Article 6 para. 1 of the Convention, that the dispute

with C was not determined by an impartial tribunal.

     In respect of the proceedings as a whole the applicant

furthermore complains that he did not have a fair hearing within the

meaning of Article 6 para. 1 of the Convention.

     Finally, with reference to Article 6 para. 3 of the Convention

the applicant complains that he was fined for abuse of trial without

having had the possibility of defending himself in person.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 29 September 1989 and

registered on 26 April 1990.

     On 14 October 1992 the Commission (Second Chamber) decided to

bring the application to the notice of the respondent Government and

invite them to submit written observations on its admissibility and

merits.

     The Government's observations were submitted on 4 February 1993.

     On 20 October 1993 the Commission decided in the particular

circumstances of the case to extend the time-limit for the submission

of the applicant's observations in reply until 1 December 1993.

     The applicant's observations were submitted on 1 December 1993.

THE LAW

1.   The applicant has raised a number of questions under Article 6

(Art. 6) of the Convention relating to his right to a fair hearing by

an impartial tribunal. Article 6 (Art. 6) reads, as far as relevant,

as follows:

     "1.  In the determination of his civil rights and

     obligations or of any criminal charge against him, everyone

     is entitled to a fair ... hearing ... by an ... impartial

     tribunal ... .

     ..."

     The applicant has raised in particular the question of the

impartiality of the presiding judge of the District Court.

     The Commission recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (Art. 6-1) must be determined according

to a subjective test, that is on the basis of the personal conviction

of a particular judge or jury in a given case, and also according to

an objective test, that is ascertaining whether the judge or the jury

offered guarantees sufficient to exclude any legitimate doubt in this

respect (cf. Eur. Court H.R., Fey judgment of 24 February 1993,

Series A no. 255, p. 12, para. 28). As regards the subjective test, the

Commission and the Court of Human Rights have constantly held that the

impartiality of a judge or a juror must be presumed until the contrary

is established (cf. for example, Eur. Court H.R., Le Compte, Van Leuven

and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25,

para. 58).

     In the present case the applicant maintains that the presiding

judge showed bias against him, exemplified by the judge's decision to

revoke the grant of legal aid, to order the applicant to pay C's

personal costs, to fine him for abuse of trial, to proceed with the

case despite counsel's objections and to refuse to lift the attachment

order concerning the applicant's property. Furthermore, the applicant

alleges that the judge did not give sufficient reasons for the

decisions taken and allegedly applied the provisions of the Code of

Judicial Procedure wrongly.

     The Commission finds that concerning the objective impartiality

appearances may be of a certain importance and account must be taken

of questions of internal organisation. In this respect the Commission

has found nothing in the actual organisation of the adjudication which

would reflect adversely on the District Court's or the presiding

judge's objective "impartiality". There remains the fact that the

applicant might not have seen the Court or the presiding judge as being

free from bias due to the fact that the dispute in question, as well

as associated points of legal aid, costs, etc. were determined against

him. However, the existence of such a sentiment on the part of a party

against whom the decisions are taken is not sufficient to establish a

lack of impartiality. The Commission has found no other evidence which

could raise doubt as to the impartiality of the District Court or the

presiding judge within the meaning of Article 6 (Art. 6) of the

Convention. It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-3) of the

Convention.

2.   The applicant also complains that he did not have a fair hearing

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

In support of this allegation the applicant refers to his above

hesitations against the proceedings in the District Court and to the

fact that the Court of Appeal did not ask him to submit his list of

evidence and subsequently decided the case without an oral hearing as

requested by him. In particular the applicant complains of the fact

that the District Court judge, on 16 September 1985, decided to proceed

with an immediate main hearing, something the applicant considers is

contrary to the provisions of the Code of Judicial Procedure as his

claims were not obviously unfounded, as he was not present and as he

wanted to call a witness. Furthermore, the applicant maintains that the

fairness of the hearing was affected by the decision to fine him for

abuse of trial.

     As regards the proceedings in the Court of Appeal the applicant

maintains, in particular, that the Court disregarded his wish to

present written and oral evidence and wrongfully classified the case

as being "obvious". Furthermore, he had expressly indicated that he

wanted an oral hearing in order to substantiate his claims.

     Accordingly, the applicant considers, having regard to the case

as a whole, that he was not afforded a fair hearing within the meaning

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

     The Government point out that the proceedings in question

concerned C's attempt to recover the sums he had been forced to pay

under his surety engagements and that it is evident that the applicant

resorted to any possible means by which he could hope to prevent a

judgment in C's favour. The Government contend that there were

well-founded reasons to proceed with a main hearing on

16 September 1985 despite the applicant's absence or counsel's

protests. They refer in particular to C's right to have the dispute

determined within a reasonable time and to the fact that the applicant

was present during the first preparatory hearing on 20 May 1985, that

counsel for the applicant had announced that the latter's absence on

16 September 1985 did not prevent the preparatory hearing from taking

place, that no further evidence was produced by the plaintiff and that,

therefore, the determination of the case by the District Court was

based solely on points of law. Furthermore the Government maintain that

the decision to fine the applicant for abuse of trial was a separate

issue of no relevance to the outcome of the civil suit itself.

     As regards the proceedings in the Court of Appeal the Government

point out that according to established case-law an oral hearing in the

appeal court is not always required as other considerations may justify

its omission. In the present case the Government refer to the fact that

an oral hearing was held in the District Court and that the issue to

be decided was of a fairly legal character. The applicant failed to

mention which evidence he wished to rely on and his physical attendance

was not essential. Furthermore, the Government point out that the

applicant had the opportunity to submit further written observations,

and the appeal did not raise any questions of fact or law which could

not adequately be resolved on the basis of the case-file. In these

circumstances the Government maintain, having regard to the Contracting

States' discretion as regards the choice of means to ensure compliance

with Article 6 (Art. 6) of the Convention, that the applicant was

afforded a fair hearing within the meaning of this provision.

     The Commission recalls that the question whether a hearing

conforms with the standard laid down by Article 6 para. 1

(Art. 6-1) of the Convention must be decided on the basis of the court

proceedings as a whole including, in the present case, not only the

proceedings in the District Court but also those of the Court of

Appeal. Following the granting of legal aid to the applicant a court

hearing was held on 20 May 1985 in the District Court where the parties

and their counsel  were present. It is clear from the minutes of this

hearing that C's claim and the applicant's counter-claims were

thoroughly discussed. It is also clear that the Court decided to

adjourn the case and ordered the parties to reappear on

16 September 1985, an order which was repeated by the Court on

23 July 1985 after it was clear that no settlement had been achieved.

On 16 September 1985 the applicant did not appear but his counsel

expressly stated this did not constitute an obstacle to proceeding with

the case. C's claims and the applicant's counter-claims were discussed

once more following which the parties finalised their pleadings.

     Having regard to the above the Commission finds that the

applicant was afforded a public hearing before the District Court

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Furthermore, the Commission finds that the applicant was afforded ample

opportunity to present to the Court everything which in his opinion was

of importance to the case. The Commission notes that the applicant

maintains that the District Court could not, under the Code of Judicial

Procedure, proceed directly to a main hearing. However, even assuming

this to be the case, this would not constitute in itself a violation

of the Convention (cf. Eur. Court of H.R., Oberschlick judgment of

23 May 1991, Series A no. 204, p. 23, para. 42). Furthermore, the

Commission does not find that the Court, in its refusal to adjourn the

case on 16 September 1985 went beyond its discretion in respect of the

question of taking evidence. The applicant's remaining hesitations

against the proceedings in the District Court do not, in the

Commission's view, disclose any appearance of a violation of the right

to a fair hearing.

     As regards the proceedings in the Court of Appeal it is true that

the Court decided the case on the basis of the case-file, thereby

refusing the applicant's request for an oral hearing, as the Court

found that the case was obvious. The Commission recognises the value

attaching to the publicity of legal proceedings, but even where a court

of appeal has jurisdiction to review, as in the present case, both

facts and law Article 6 (Art. 6) does not always require a public

hearing irrespective of the nature of the issues to be determined (cf.

Eur. Court H.R., Helmers judgment of 29 October 1991, Series A no.

212-A, p. 16, para. 36). Provided a public hearing has been held at

first instance, the absence of such a hearing before a court of second

or third instance may accordingly be justified by the special features

of the proceedings at issue. Having regard to these features as

submitted the Commission finds that the applicant's appeal in respect

of his dispute with C did not raise any questions of fact or law which

could not be adequately resolved on the basis of the case-file. The

Court of Appeal could, as a matter of fair hearing, properly decide to

examine the appeal without the applicant having a right to present his

arguments at a public hearing also in this Court.

     Likewise the Commission does not consider that the Court in any

way prevented the applicant from submitting lists of evidence or other

material which he found to be of relevance. Being well versed in the

routines of judicial procedure the applicant had ample opportunity to

present his list of evidence, something which he did not do despite the

fact that the case was pending before the Court of Appeal for quite

some time.

     Thus, having regard to the entirety of the proceedings before the

Swedish courts and to the nature of the dispute between the applicant

and C, the Commission finds no appearance of a violation of the

applicant's right to a fair hearing within the meaning of Article 6

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

     It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.   The applicant also complains, with reference to Article 6 para. 3

(Art. 6-3) of the Convention, that he was fined for abuse of trial.

Article 6 para. 3 (Art. 6-3) of the Convention reads as follows:

     "Everyone charged with a criminal offence has the following

     minimum rights:

     a.   to be informed promptly, in a language which he

     understands and in detail, of the nature and cause of the

     accusation against him;

     b.   to have adequate time and facilities for the

     preparation of his defence;

     c.   to defend himself in person or through legal

     assistance of his own choosing or, if he has not sufficient

     means to pay for legal assistance, to be given it free when

     the interests of justice so require;

     d.   to examine or have examined witnesses against him and

     to obtain the attendance and examination of witnesses on

     his behalf under the same conditions as witnesses against

     him;

     e.   to have the free assistance of an interpreter if he

     cannot understand or speak the language used in court."

     The applicant maintains that the fine was imposed without his

having had the possibility of defending himself in person. He refutes

the courts' findings that he attempted to delay the proceedings and

also that his objections and counter-claims were unfounded.

Furthermore, the applicant submits that he was represented by a member

of the Swedish Bar Association in the proceedings for which reason he

should not have been personally liable.

     The Government maintain that Article 6 (Art. 6) is not applicable

to the proceedings in question or, in the alternative, that the

applicant's complaints under this provision are manifestly ill-founded.

They argue that under Swedish law abuse of trial offences are not

considered to constitute criminal offences and their determination

rather constitutes an examination in the exercise of judicial control

of the proper administration of justice. The sanction does not

presuppose prosecution and is not entered in the criminal register. It

cannot be applied to any person other than a party to a court case and

the issue is dealt with by the particular court in question of its own

accord. Finally, neither the penalty nor the rather theoretical

possibility of a term of imprisonment can make the sanction a

"criminal" one. In the alternative the Government maintain that in so

far as relevant the applicant was afforded all the guarantees set out

in Article 6 para. 3 (Art. 6-3) of the Convention.

     The Commission considers that rules enabling a court to sanction

disorderly conduct in proceedings before it are a common feature of

legal systems of the Contracting States. Such rules and sanctions are

derived from the indispensable power of a court to ensure the proper

and orderly functioning of its own proceedings. Measures ordered by the

courts under such rules are more akin to the exercise of disciplinary

powers than to the imposition of a punishment for commission of a

criminal offence and the courts may need to respond to such conduct

even if it is neither necessary nor practicable to bring a criminal

charge against the person concerned.

     In the present case the applicant was sanctioned under Chapter 9

of the Code of Judicial Procedure, which applies only to inappropriate

behaviour during court proceedings by a person attending or taking part

in the proceedings but not to acts by a person falling outside the

circle of persons concerned by this chapter. It is for the court

sitting in the particular proceedings in which the misconduct has

occurred to examine, of its own accord, whether the misconduct violates

the provisions of the Code of Judicial Procedure in question. In these

circumstances the Commission finds that the kind of proscribed conduct

for which the applicant was fined falls outside the ambit of Article 6

(Art. 6) (cf. Eur. Court H.R., Ravnsborg judgment of 23 March 1994,

Series A no. 283-B, pp. 29-30, paras. 33-34).

     It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

        Secretary to                    Acting President of

     the Second Chamber                  the Second Chamber

      (M.-T. SCHOEPFER)                        (G.H. THUNE)