DISSENTING OPINION OF JUDGE MORENILLA

1. To my regret I cannot agree with the reasoning which has led the majority to conclude that the applicant ’ s right to a "fair and public hearing", as guaranteed by Article 6 para. 1 (art. 6-1) of the Convention, was violated as a result of the refusal of the Court of Appeal of Skåne and Blekinge to grant his request for an oral hearing in the determination of his appeal. In my opinion, the particular circumstances of the case made such a hearing unnecessary and, consequently, I find no breach of Article 6 para. 1 (art. 6-1).

2. I agree with the majority that the applicant was defending his reputation when he instituted a prosecution for defamation and false statements against one of the members and the secretary of the university committee and claimed symbolic compensation. That committee had been responsible for issuing a certificate containing a summary of his previous appeal to the Swedish central university authority and Mr Helmers considered that that summary attributed to him an accusation of corruption against another candidate for the post which he had been holding for six years and to which the authorities had refused to re-nominate him.

The proceedings therefore concerned a "civil right" of the applicant who was acting as an alleged "injured" party in order to defend himself against what he regarded as an attack on his reputation; they thus fell within the scope of Article 6 para. 1 (art. 6-1) of the Convention (paragraph 29 of the judgment).

3. There is, however, a special feature in this case that has to be considered when deciding whether Article 6 para. 1 (art. 6-1) has been violated, namely that Mr Helmers chose to institute criminal proceedings in order to protect a civil right. The consequence is that Article 6 para. 1 (art. 6-1) also applies to the two defendants. The applicant ’ s decision to bring a private prosecution coupled with a claim for symbolic compensation, instead of bringing a civil action against the committee for issuing what he considered to be a defamatory summary of his allegations, could neither change the criminal nature of the proceedings he instituted nor extinguish or limit the rights of the defendants under Article 6 (art. 6) as a whole. In particular, they were entitled to a prompt determination by the Court of Appeal of the accusation which was still pending against them as a result of the applicant ’ s appeal against their acquittal by the District Court of Lund.

In this respect, since the Swedish Code of Judicial Procedure (Chapter 51, section 21) empowers the Court of Appeal to decide the case without a hearing "if the lower court has acquitted the accused" (see paragraph 20 of the judgment), Mr Helmers ’ claim of breach of Article 6 (art. 6) as a result of the Court of Appeal ’ s decision not to hold a public hearing seems inconsistent with his choice and constitutes a "venire contra actum proprium ".

4. On the necessity of an oral hearing in appeal or cassation proceedings the Court has laid down a consistent case-law based on a well-established distinction between "publicity" and "direct assessment of the evidence" by the superior judges: "The public character of proceedings before the judicial bodies referred to in Article 6 para. 1 (art. 6-1) protects litigants against an 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" (see, inter alia, the Sutter judgment of 22 February 1984, Series A no. 74, p. 12, para. 26). The direct assessment of the evidence by the deciding judge is, however, a guarantee which is related to the "immediacy principle" rather than to the public character of the hearing and, as such, is a matter that goes to the fairness of the procedure, inherent in the concept of " procès équitable ".

Accordingly, a public hearing is an essential requirement in the trial court - subject to the exceptions contemplated in Article 6 para. 1 (art. 6-1) - but in appeal and cassation proceedings its importance depends on the system of appeal under national law, on the scope of the appellate court ’ s powers, on the nature of the issue to be decided and on the manner in which the applicant ’ s interests were actually presented and protected before the appeal court. In this respect, the European Court has held in a number of cases that "provided that there has been a public hearing in the first instance, the absence of a public hearing before a second or third instance may be justified by the special features of the proceedings at issue" (see the Ekbatani judgment of 26 May 1988, Series A no. 134, p. 14, para. 31).

5. Thus, the Court has seen no necessity for an oral hearing, at the appellate or cassation level, when the superior court "determines solely issues of law" (see the Axen judgment of 8 December 1983, Series A no. 72, pp. 12-13, para. 28); in cassation proceedings, when "oral argument during a public hearing ... would not have provided any further guarantee of the fundamental principles underlying Article 6 (art. 6) [of the Convention]" (see the above-mentioned Sutter judgment, p. 13, para. 30); or when "the limited nature of the subsequent issue did not in itself call for oral argument at the public hearing or the personal appearance of the two men" (see the Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 22, para. 58).

In the Ekbatani case, which has some similarities with the present case and on which the majority has relied in arriving at its conclusion of violation (paragraphs 36-38 of the judgment), the Court found that such an oral hearing was required before a Swedish appeal court when deciding on the guilt or innocence of the defendant, but after declaring that:

"In the circumstances of the present case that question could not, as a matter of fair trial, have been properly determined without a direct assessment of the evidence given in person by the applicant - who claimed that he had not committed the act alleged to constitute the criminal offence ... - and by the complainant. Accordingly, the Court of Appeal ’ s re- examination of Mr Ekbatani ’ s conviction at first instance ought to have comprised a full re-hearing of the applicant and the complainant" (ibid., para. 32).

6. I understand the Court ’ s decision in that case as establishing that an oral hearing is required in criminal appeals when, in order to determine properly the guilt or innocence of the person charged with a criminal offence, "a direct assessment of the evidence given in person by the plaintiff and by the complainant" is necessary. Accordingly, in my opinion, an oral hearing is not required when the case may be properly decided on evidence which is available in the case-file and is not contradicted by the parties, when the presence of the appellant and the respondent is not relevant for the outcome of the case, and when a substitute for oral argument by the parties is provided by written observations submitted in a procedure that complies fully with the rights of the defence and the principle of equality of arms. In these circumstances, a decision by an appeal court, taken in conformity with the law, not to hold an oral hearing does not infringe the rights of the parties under Article 6 para. 1 (art. 6-1) of the Convention.

All these conditions were satisfied in the present case. The points at issue before the Court of Appeal were: whether or not the summary of the applicant ’ s appeal to the central university authority reflected his allegations; whether or not that summary was defamatory; the composition of the committee responsible for issuing that document; and the actual criminal responsibility of the two defendants, having regard to their prescribed functions in that committee. Although they went to the merits of the case, all these points had to be determined by the appellate judges solely by reference to the written evidence available in the case-file (the committee ’ s certificate, the text of Mr Helmers ’ appeal, the composition of the committee) and the law applicable, and in the light of the written observations of the parties. An oral hearing was not necessary under the Ekbatani ruling and to grant the applicant ’ s request for one would only have resulted in a delay in the final determination of the defendants ’ case and of other cases pending in the Court of Appeal.

7. In the above-mentioned circumstances the national authorities enjoy a margin of appreciation when regulating, or deciding to dispense with, oral hearings in appeal proceedings. After all, Article 6 para. 1 (art. 6-1) of the Convention does not enshrine a right to have a case reviewed by a higher tribunal. Thus, it would be somewhat paradoxical if a State that affords such a right were held to be in violation of that Article (art. 6) if it empowered its courts of appeal to dispense with a hearing when they considered that it was not necessary for a fair disposal of the case, whilst another State, which does not allow appeals or allows only limited appeals (such as cassation proceedings), were to be seen as acting in accordance with the Convention.

In this connection, it should also be mentioned that Protocol No. 7 (P7) - which has been in force since 1 November 1990 and has now been ratified by Sweden -, when amplifying the list of rights defined in the Convention, confers, in Article 2 (P7-2), a right of appeal on everyone convicted of a criminal offence. However, it specifies that "the exercise of this right, including the grounds on which it may be exercised, shall be governed by law" and establishes exceptions, particularly "in regard to offences of minor character, as prescribed by law".

Consideration should also be given to the legal policy of the State concerned and to the need to dispose of appeals without undue delay. Many European States are facing very serious problems relating to an overburdening of their courts and a backlog in the system of justice particularly in criminal appeals. They are taking steps to simplify procedures in such a way that, while respecting the fundamental guarantees of Article 6 (art. 6) concerning a fair trial, the administration of criminal (and also civil) justice will be more expeditious and more able to play its deterrent role. This is the aim of Recommendation No. R (87) 18 of the Committee of Ministers of the Council of Europe on "The Simplification of Criminal Justice", which was made - as is said in its preamble - "having regard to the increase in the number of criminal cases referred to the courts and particularly those carrying minor penalties and the problems caused by the length of criminal proceedings".

8. Finally, in determining whether the decision of the Swedish Court of Appeal of Skåne and Blekinge to dispense with an oral hearing in the appeal in question was justified under Article 6 para. 1 (art. 6-1) of the Convention, the following further circumstances should be taken into consideration:

(a) The public character of the hearing at first instance has not been disputed. Nor was it disputed that under Swedish law all official documents are public and that everyone has in principle a right of access to the case-files in the Court of Appeal. Nor were the questions of protecting the applicant from a secret administration of justice or of the confidence of the citizens in their courts ever raised.

(b) Under the aforementioned Chapter 51, section 21, of the Swedish Code of Judicial Procedure, the Court of Appeal may, without a public hearing, determine the criminal charges against a person who has been acquitted by the District Court. In the present case the two accused did not request a hearing and did not object to the decision of the superior court to replace the hearing by written observations, the scope of which was unlimited.

(c) The fairness of the appeal proceedings, particularly the rights of the defence and the principle of equality of arms before an impartial court established by law, was ensured because the parties could - and in fact did - submit to the appellate court written observations on the facts and on the legal issues arising in the decision under appeal.

(d) Considering the nature of the issues to be decided by the appeal court (which did not require the presence of the appellant or that of the respondents in order to determine the guilt or innocence of the accused, since neither their credibility nor their personality had to be assessed), the absence of an oral hearing therefore did not adversely affect the interests of the applicant or the interests - which are equally protected by Article 6 (art. 6) of the Convention - of the accused.

[*]  The case is numbered 22/1990/213/275.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[1] Note by the Registrar: As amended by Article 11 of Protocol No. 8 (P8-11) to the Convention, which came into force on 1 January 1990 .

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 212-A of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.