JOINT DISSENTING OPINION OF JUDGE MATSCHER JOINED BY JUDGES BINDSCHEDLER-ROBERT AND GÖLCÜKLÜ

(Translation)

1. On the general problem of the need for a public hearing on appeal, I confirm entirely what I said in my dissenting opinion in the Ekbatani case (Series A no. 134, p. 19).

2. As regards the specific aspects of the present case, I agree with the position taken by Mrs Palm in her dissenting opinion.

JOINT CONCURRING OPINION OF JUDGES WALSH, RUSSO, SPIELMANN , DE MEYER, LOIZOU AND BIGI

The reasons stated in paragraphs 57 to 60 of the Commission ’ s report and summarised in paragraph 33 of the judgment suffice, in our view, to conclude that, in the present case, the appeal court ’ s examination of Mr Helmers ’ appeal required a public hearing of the parties concerned.

JOINT DISSENTING OPINION OF JUDGE PALM, JOINED BY JUDGES THOR VILHJALMSSON, BERNHARDT, MARTENS AND PEKKANEN

Taking as a starting point that Mr Helmers ’ private criminal prosecution for defamation and his action for damages (see paragraph 14 of the judgment) may, as far as his position under Article 6 (art. 6) is concerned, be put on a par with and considered equivalent to "civil" proceedings in which he was the plaintiff seeking damages for defamation (see paragraphs 29 and 30 of the judgment), I cannot share the conclusions which the majority of the members of the Court has drawn from the requirement of a "fair and public hearing".

Firstly, I consider that the majority ’ s reasoning, which is built on a precedent in a "criminal" case (the Ekbatani judgment), does not sufficiently take into account that in principle there exists a marked difference between "civil" cases and "criminal" cases in respect of the importance to be attached to a party being given the opportunity to be heard in person. That is because, generally speaking, in "civil" cases there is no need to assess a party ’ s credibility and only seldom any other reason why the court should hear a party in person, while in "criminal" cases this may be of great importance. Thus, I find that the specific objectives underlying the institution of criminal proceedings for the purpose of establishing a person ’ s guilt or innocence justify that such a person should enjoy greater possibilities of appearing in person than a party to "civil" proceedings. However, for present purposes the proceedings instituted by Mr Helmers before the Swedish courts have to be examined in the light of the requirements of "fairness" applicable to "civil" proceedings.

In addition, I do not share the majority ’ s opinion that his appeal "raised serious questions as to which facts were relevant, which facts had been proved and how the ‘ reasonable foundation ’ test should be applied" (see paragraph 38 of the judgment). To my mind, the relevant facts, i.e. the contents of Mr Helmers ’ appeal submissions to the "UHÄ", the special university committee ’ s summary thereof and the "notorious" facts regarding the animosities at the University (see paragraphs 16 and 17 of the judgment), were all unchallenged. Furthermore, Mr Helmers had been given the opportunity to argue his case in written submissions to the Court of Appeal as elaborately as he wished and his request for an oral hearing could have had no other relevant purpose than to be allowed to plead his case in person. Moreover, it must be taken into account that although the proceedings brought before the Court of Appeal were undoubtedly of importance for Mr Helmers, they were equally important for the defendants, who apparently did not desire an oral hearing. In these circumstances and taking into account that for the present purposes the proceedings brought by Mr Helmers have to be put on a par with "civil" proceedings and the fact that there had been a full hearing at first instance, as well as the proper margin of appreciation for the Court of Appeal, I find that this court did not violate the requirements implied in the notion of a "fair and public hearing" when it refused Mr Helmers ’ request for an oral hearing.

Accordingly, I find no violation of Article 6 para. 1 (art. 6-1) of the Convention in the present case.