DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

To my regret, I am unable to agree with the majority of the Court in this case. I have come to the conclusion that it concerns a minor offence and that Article 6 (art. 6) of the Convention does not require a full rehearing of an applicant and a complainant in such circumstances.

There is no reason to go into the facts of the case in order to show that the offence with which the applicant was charged was indeed a minor one. A reference to the judgment suffices.

Article 6 (art. 6) of the Convention sets out the right to a fair trial "within a reasonable time". Justice without delay is an important human right in all cases, big and small. This is so not only for the parties concerned but also for society as a whole, because it contributes to the successful operation of the court system. Experience shows that measures are often needed to facilitate the work of the courts. Some States have accordingly enacted special procedural rules for minor cases. To me it seems important to keep in mind that this is in accordance with, and not in contravention of, the purpose of Article 6 (art. 6) of the European Convention on Human Rights, which is to guarantee a fair trial by a tribunal.

In accordance with the relevant Swedish rules of procedure applicable in the case of Mr. Ekbatani , he was given a hearing by a court of first instance. It is clear and undisputed that this hearing fulfilled the requirements of Article 6 (art. 6). The Appeal Court applied a procedural rule permitting it to dispense with a full rehearing of the defendant and the complainant. This Court decided the case on the basis of the documents transmitted from the court of first instance and the written submissions presented to it on behalf of the prosecuting authorities and the defendant.

In my opinion, it is not in the interest of justice to deny to appellate courts the possibility of dispensing with a full rehearing of a case concerning a minor offence, even when they are called upon to decide both questions of fact and of law. As to the circumstances of the present case, the procedural guarantees enjoyed by the applicant can only be properly assessed if the domestic proceedings are viewed as a whole. Having done this, I find that the applicant was given a fair trial by the Swedish courts. The fact that the case-file was at all times available to the public and that the relevant procedural rules precluded reformatio in pejus strengthens this conclusion.

Accordingly, I find no violation of Article 6 (art. 6) in this case.

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

(Translation)

To my regret, I am unable to agree either with the reasoning or with the conclusions of the majority of the Court regarding the alleged violation of Article 6 § 1 (art. 6-1) of the Convention in this case. My reasons are as follows.

1.   The applicant had the benefit of proceedings before the court of first instance that satisfied all the requirements of Article 6 (art. 6): he had every opportunity to put forward his defence; the proceedings were oral and public; the court took its decision after having made the inquiries into the facts that it considered necessary; no objection was raised as regards the independence and impartiality of the court, which was established by law. Furthermore, the defendant was assisted by a lawyer and the costs of the proceedings were borne by the State.

The defendant did, of course, protest his innocence, but the assessment of the evidence and the proper application of national law is not subject to review by the Convention institutions in so far as the proceedings whereby the criminal charge was determined satisfied the requirements of Article 6 (art. 6).

2.   Swedish law gives a defendant a limited right of appeal, and this goes beyond what is required by Article 6 (art. 6); furthermore, not even Article 2 of Protocol No. 7 (P7-2) will require that an appeal to a higher tribunal should be available, since in this instance the offence was "of a minor character".

The limitation on the appeal procedure is that the appellate court can decide the case without a hearing where it does not consider one to be necessary, that is to say where the appeal court, in its unfettered assessment of the evidence and after studying the written pleadings submitted by the defendant and the prosecution, accepts the facts as established by the court below and shares that court ’ s view of the law.

In addition to all this there is the prohibition of reformatio in pejus where the appeal has been lodged only by the defendant; in other words, in these circumstances the appellate court can only confirm the sentence passed by the trial court or vary it in the defendant ’ s favour.

In my view, all this accords with the requirements of Article 6 (art. 6). Where the law of the State in question affords a right of appeal (which goes beyond the requirements of Article 6) (art. 6), there is no obligation for the appeal procedure to be designed in such a way as to give the defendant the maximum opportunity of having the sentence that has been passed on him by the trial court varied in his favour.

Nor do I consider it necessary, for the purposes of the instant case, to examine in more detail the criteria which must in general be satisfied by an appeal procedure provided for in national law if it is to meet the requirements of Article 6 (art. 6).

3.   Perhaps I may be allowed to add an argument based on legal policy. In the instant case, the conviction was for an offence which would be described as being "of a minor character" under the second paragraph of Article 2 of Protocol No. 7 (P7-2) and one for which that provision does not even require that there should be an appeal to a higher tribunal.

It is in the interests of sound administration of justice that in a case of this kind, where an appeal procedure is nonetheless afforded by national law, it should be limited to a review of the sentence passed by the trial court in order to ascertain that there was no serious error of fact or of substantive law or any procedural impropriety. There must therefore be a number of restrictions on such an appeal procedure (leave to appeal, decision on the basis of written evidence alone, limiting of the appeal to points of law and grounds of nullity), as it would otherwise not serve the needs of rapid, economic administration of justice in general. Moreover, in the second sentence of its first paragraph Protocol No. 7 (P7) allows for restrictions on appeals, even in respect of offences not described as being of a minor character.

DECLARATION BY JUDGE PINHEIRO FARINHA

(Translation)

I concur with Judge Matscher ’ s dissenting opinion, set out above, with the exception of paragraph 3.