AS TO THE ADMISSIBILITY OF

                      Application No. 11826/85

                      by Reinhard HELMERS

                      against Sweden

        The European Commission of Human Rights sitting in private

on 9 May 1989, the following members being present:

              MM. J.A. FROWEIN, Acting President

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             Mr.  F. MARTINEZ

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 6 February 1985

by Reinhard HELMERS against Sweden and registered on 28 October 1985

under file No. 11826/85;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a Swedish citizen, born in 1930.  He is a

university lecturer and resides at Lund, Sweden.

        The applicant has previously brought two applications before

the Commission.  His first application No. 8637/79 was declared

inadmissible on 10 March 1982 for non-exhaustion of domestic

remedies.  The second application No. 10484/83 was declared

inadmissible on 2 July 1984 in part as being substantially the same as

the first application, in part as being incompatible ratione materiae

with the Convention and in part since he had failed to exhaust

domestic remedies.

        The facts of the present case, as submitted by the parties,

may be summarised as follows.

        On 30 April 1979 the applicant applied for an academic post at

his university.  The applicant was not appointed for this post and he

claims that this was due to 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 in that he was alleged to have defamed an

innocent colleague as corrupt and thus took steps in order to have

this alleged defamation removed from the official record.  For this

purpose he notified the Prosecutor General who decided, on 10 March

1981, 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.

        The applicant then instituted private prosecution proceedings

in the District Court (tingsrätt) of Lund against Mr.  F and Mrs.  E who

had been members of the committee responsible for the certificate and

the committee's secretary, respectively.  In the District Court the

applicant accused Mr.  F and Mrs.  E of defamation and false

certification, thus 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 amounting to 1 Swedish crown in either case from Mr.  F

and Mrs.  E.

        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.  After the hearing the presiding judge informed

the parties and the public that the judgment of the Court would be

held accessible to the public at the Court's clerical office on

19 November 1981 at 14.00 hours.

        On 19 November 1981 the judgment of the District Court was

available at the clerical office.  Furthermore it was mailed to the

parties on the same day.  In its judgment the Court found that the

wording of the committee's certificate of 2 October 1980 was likely to

expose the applicant to 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.  Due to this outcome of the private prosecution the

compensation claim was dismissed.

        The applicant appealed against this judgment on points of

facts and law to the Court of Appeal (hovrätt) of Skåne and Blekinge

on 9 December 1981.  The grounds of appeal referred to the fact that

the applicant had been prevented from ascertaining the identity of the

author of the alleged libel, 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.

        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.

        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

(rättegångsbalken).  In particular he refers to newspaper cuttings of

articles written by third persons together with the press communiqué

issued by the Secretary to the Commission on 15 February 1982 in

relation to his application No. 8637/79.  The applicant requested the

Court of Appeal to reject this evidence.

        On 23 September 1983 the Court of Appeal determined the case

on the basis of the case file.  The judgment was available at the

Court's clerical office on 28 November 1983 and sent to the parties

the same day.

        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 disrespect of

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

to express themselves and that they 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 dismissal of the criminal charges the claim for

damages was also dismissed.

        The applicant appealed against this judgment to the Supreme

Court 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.

        On 21 December 1984 the Supreme Court, however, refused the

applicant leave to appeal against the judgment of the Court of Appeal.

COMPLAINTS

        As regards the proceedings in the District Court the applicant

complains that he was denied a fair hearing by an impartial tribunal

and that the judgment was not pronounced publicly as required by

Article 6 para. 1 of the Convention.  He maintains that the defendants

were unable to fulfil their legal duty to prove the truth of their

accusations and that the Court's reasons were unlawful and also inaccurate

in fact.  The applicant furthermore contends that the judge showed bias

and that the Court did not analyse the alleged offence under the

relevant provisions of the Criminal Code.  In particular as regards the

fairness of the proceedings the applicant refers to the fact that he

was prevented from ascertaining the identity of the author of the

alleged libellous accusation against him.

        As regards the proceedings in the Court of Appeal the

applicant also refers to Article 6 para. 1 of the Convention.  He

maintains that, as the proceedings on the merits were "secret" since

there was no public hearing at all, he cannot be considered as having

had a fair and public hearing within the meaning of this provision.

        As regards the proceedings in the Supreme Court the applicant

refers to the fact that this Court did not hold a public hearing, nor

did it pronounce its judgment publicly.  Its fairness, independence and

impartiality were not therefore "detectable".  The applicant also

invokes Article 6 para. 1 of the Convention in regard to these

proceedings.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 6 February 1985 and

registered on 28 October 1985.

        On 14 March 1986 the Commission decided to adjourn the

examination of the applicant's complaints concerning the conformity of

the defamation proceedings with the requirements of Article 6 of the

Convention and to declare a number of other complaints under Articles

9, 10, 13, 14 17 and 25 of the Convention inadmissible.  The adjourned

part of the application was communicated to the respondent Government

under Rule 42 (2) (b) of the Commission's Rules of Procedure without,

however, requesting the Government to submit observations.

        On 10 December 1986 the Commission decided to adjourn the

further examination of the case pending the outcome of the Ekbatani

case brought before the European Court of Human Rights.  The Court

pronounced its judgment in this case on 26 May 1988 (Series A

no. 134).

        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 (2)

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

        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.

THE LAW

1.      The applicant has complained of a number of procedural errors

allegedly committed during the court proceedings instituted by him as

private criminal prosecution for defamation and the first question to

be determined is thus whether Article 6 (Art. 6) of the Convention, on which

the applicant relies, applies to such proceedings.

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

        The Government contend primarily that the above provision is

not applicable to the criminal proceedings instigated 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.  The Government contend therefore

that the application should be declared inadmissible in its entirety,

or at least as regards the criminal charges, ratione materiae for

falling outside the scope of the Convention.

        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 remedy fulfilling the

requirements of Article 6 (Art. 6) must be available.

        The Commission notes that the present case does not concern a

criminal charge directed against the applicant.  Article 6 (Art. 6) of the

Convention would accordingly only apply if the case concerned the

determination of the applicant's civil rights within the meaning of

this provision.  In this respect 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.  Furthermore 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.

        The Commission has found no reason to deviate from the above views, and

it follows that the present case concerns a civil right and that Article 6

(Art. 6) is applicable to the proceedings instituted by the applicant.  In

particular the Commission has found no room for a separation of the issues of

criminal liability and civil liability of the defendants as the Government seem

to suggest but, as already indicated above, the issues to be determined will be

examined exclusively by the standards applicable to a civil dispute as no

criminal charge against the applicant is at hand.

2.      The applicant has complained that he was denied a fair hearing by an

impartial tribunal in the District Court.  He maintains that the defendants

were unable to fulfil their legal duty to prove the truth of their accusations

and that the Court's reasons were unlawful and also inaccurate in fact.  The

applicant furthermore contends that the judge showed bias and that the Court

did not analyse the alleged offence under the relevant provisions of the Penal

Code.  In particular as regards the fairness of the proceedings the applicant

refers to the fact that he was prevented from ascertaining the identity of the

author of the alleged libellous accusation agains him.

        With regard to the judicial decision of which the applicant complains,

the Commission recalls that, in accordance with Article 19 (Art. 19) of the

Convention, its only task is to ensure the observance of the obligations

undertaken by the Parties in the Convention.  In particular, it is not

competent to deal with an application alleging that errors of law or fact have

been committed by domestic courts, except where it considers that such errors

might have involved a possible violation of any of the rights and freedoms set

out in the Convention.  The Commission refers, on this point, to its

established case-law (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,

236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

        The Commission has not, however, found any substantiated allegations in

the applicant's submissions which could lead it to conclude that the District

Court proceedings were unfair or the Court partial.  Especially the Commission

has not found any indications that the Court when evaluating the information

submitted by the parties during the oral hearing, acted arbitrarily or that the

Court in other ways reached its decision unfairly.  There is furthermore

nothing to show that the Court was partial or influenced by irrelevant

elements.

Viewing the proceedings in the District Court as a whole the Commission thus

concludes that there is no appearance of a violation of Article 6 (Art. 6) of

the Convention and 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.

        As regards the proceedings in the District Court the applicant also

complains that the judgment was not pronounced publicly and refers to Article 6

para. 1 (Art. 6-1) of the Convention also in this respect. The Commission

considers, however, that this complaint is inadmissible for the following

reasons.

        It is established case-law that the words "pronounced publicly" in

Article 6 para. 1 (Art. 6-1) should not be interpreted literally (see inter

alia Eur.  Court H.R., Campbell and Fell judgment of 28 June 1984, Series A no.

80, p. 43, para. 91 and the references there).  In each case the final

publication of the judgment under the domestic law must be assessed in the

light of the special features of the proceedings in question and by reference

to the object pursued by Article 6 para. 1 (Art. 6-1) in this context, namely

to ensure scrutiny of the judiciary by the public with a view to safeguarding a

right to a fair hearing.

        Furthermore it is set out in the Court's judgment in Pretto and Others

of 8 December 1983 (Series A no. 71, p. 12, para. 26) that the Member States of

the Council of Europe have a longstanding tradition of recourse to other means

besides oral reading for making public the judgments or other decisions of

their courts, in particular deposit in a registry accessible to the public.

        In the present case the proceedings concern private prosecution for

alleged defamation where the applicant was the "injured" party.  Judgment was

delivered, not by an oral reading in open court, but by keeping the judgment

available to everyone as from the date of delivery at the Court's registry.

The judgment was published in full and thus not limited to the operative part.

In addition to keeping the judgment publicly available at the registry, the

judgment was also sent to the applicant by mail.  In these circumstances the

Commission finds that the object of ensuring scrutiny of the judiciary by the

public with a view to safeguarding the right to a fair hearing was achieved.

        It follows that this part of the application is also manifestly

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

Convention.

3.      As regards the proceedings in the Court of Appeal the applicant has

complained that he did not get a fair and public hearing within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention as the proceedings on the merits

were "secret" since there was no public hearing.

        The Government have argued that, insofar as Article 6 (Art. 6) is

applicable, the right to a hearing before the Court of Appeal should be

considered in the light of the circumstances of the case in question which in

this case would lead to the conclusion that the applicant's rights under

Article 6 (Art. 6) were not violated.

        The Commission has made a preliminary examination of the above aspect

and has found that it raises serious issues as to the interpretation and

application of Article 6 (Art. 6) of the Convention which are of such

complexity that the determination of these issues should depend on a full

examination of their merits.  It follows that this part of the application

cannot be regarded as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.  No other ground for declaring it

inadmissible has been established.

4.      The Commission has finally considered the applicant's complaint under

Article 6 (Art. 6) of the Convention that he did not get a fair hearing before

the Supreme Court when this Court refused to grant him leave to appeal.

        In this respect the Commission recalls that the right to appeal does

not feature among the rights and freedoms guaranteed by the Convention.  No

provision of the Convention, therefore, requires the High Contracting Parties

to grant persons under their jurisdiction an appeal to a Supreme Court.  If a

High Contracting Party makes provision for such an appeal it is entitled to

prescribe the rules by which this appeal shall be governed and fix the

conditions under which it may be brought (cf.  No. 3775/68, Dec. 5.2.70,

Collection 31 p. 16; No. 6916/75, Dec. 12.3.76, D.R. 6 p. 101).

        The Commission is of the opinion that, when a Supreme Court determines,

in a preliminary examination of a case, whether or not the conditions required

for granting leave to appeal have been fulfilled, it is not making a decision

relating to "civil rights and obligations" (cf.  No. 10515/83, Dec. 2.10.84,

D.R. 40 p. 258).  It follows that Article 6 (Art. 6) of the Convention does not

apply to the proceedings in which the Swedish Supreme Court, without entering

on the merits, refused the applicant leave to appeal against the judgment of

the Court of Appeal.

        This part of the application is thus 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

        DECLARES ADMISSIBLE, without prejudging the merits of the

        case, the applicant's complaint that he did not get a "fair and

        public hearing", within the meaning of Article 6 of the

        Convention, before the Court of Appeal;

        DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission     Acting President of the Commission

      (J. RAYMOND)                              (J.A. FROWEIN)