DISSENTING OPINION OF JUDGE BERNHARDT

1.   It is undisputed that in the present case the criminal proceedings before the court of first instance (the City Court) satisfied all the requirements of Article 6 § 1 (art. 6-1) of the Convention.

2.   The States Parties to the Convention have a very broad discretion in providing or excluding appeals against criminal decisions, especially in minor cases like the present one, where only a fine of 600 Swedish crowns was imposed by the City Court. (This is confirmed by Protocol No. 7, which is not yet in force) (P7).

This discretion of States allows of several alternatives. They can exclude any form of appeal; they can confine appeals to questions of law; or they can provide a special procedure and special conditions for the admission of an appeal. I do not see any basic difference between these alternatives and the system adopted by Sweden in the present case: if the Appeal Court is satisfied, having regard to the files and the written submissions of the parties, that the decision of the court of first instance is correct - and if it does not propose to increase the sentence -, it can reject the appeal without a further hearing. This can, at least to a certain extent, be compared with a procedure whereby an appeal requires special leave; in any event, it does not afford fewer guarantees or less protection than the other alternatives mentioned earlier. The present decision of the European Court could even have adverse effects. States may restrict appeals in order to avoid difficulties of the kind which arose in this case.

3.   There is no doubt that other guarantees of a fair trial must be fulfilled in all appeal procedures, whether there is an oral hearing or not: equality of arms, the right to submit arguments in the written procedure, etc. In this respect, no defects are apparent in the present case.

[*]  Note by the Registrar: The case is numbered 23/1986/121/170. The second figure indicates the year in which the case was referred to the Court, and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.