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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> EKBATANI v. SWEDEN - 10563/83 [1988] ECHR 6 (26 May 1988)
URL: http://www.bailii.org/eu/cases/ECHR/1988/6.html
Cite as: ECLI:CE:ECHR:1988:0526JUD001056383, (1991) 13 EHRR 504, [1991] 13 EHRR 504, CE:ECHR:1988:0526JUD001056383, 13 EHRR 504, [1988] ECHR 6
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In the Ekbatani 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.
_______________
The European Court of Human Rights, taking its decision in plenary
session in pursuance of Rule 50 of the Rules of Court and composed of
the following judges:
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mr. Thór Vilhjálmsson,
Mrs. D. Bindschedler-Robert,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti,
Mr. B. Walsh,
Sir Vincent Evans,
Mr. C. Russo,
Mr. R. Bernhardt,
Mr. A. Spielmann,
Mr. J. De Meyer,
Mr. N. Valticos,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold,
Deputy Registrar,
Having deliberated in private on 29 January and on 28 April 1988,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was brought before the Court on 5 December 1986 by
the Government of the Kingdom of Sweden ("the Government") and seven
days later by the European Commission of Human Rights ("the
Commission"), within the period of three months laid down by
Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
("the Convention"). The case originated in an application
(no. 10563/83) against the Kingdom of Sweden lodged with the
Commission on 20 June 1983 by Mr. John Ekbatani, a citizen of the
United States of America, under Article 25 (art. 25).
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Kingdom of Sweden
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The purpose of the Government's application and of the
request was to obtain a decision as to whether or not the facts of the
case disclosed a breach by the respondent State of its obligations
under Article 6 (art. 6) of the Convention.
2. In response to the inquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he
wished to participate in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
3. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. G. Lagergren, the elected judge of Swedish
nationality (Article 43 of the Convention) (art. 43), and
Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)).
On 3 February 1987, the President of the Court drew by lot, in the
presence of the Registrar, the names of the five other members, namely
Mr. J. Cremona, Mr. F. Matscher, Mr. J. Pinheiro Farinha,
Mr. R. Bernhardt and Mr. J. Gersing (Article 43 in fine of the
Convention and Rule 21 § 4) (art. 43). Subsequently,
Mrs. D. Bindschedler-Robert and Mr. B. Walsh replaced Mr. Cremona and
Mr. Gersing, who were prevented from taking part in the consideration
of the case (Rules 22 § 1 and 24 § 1).
4. Mr. Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5). He ascertained, through the Registrar, the views of
the Agent of the Government, the Delegate of the Commission and the
lawyer for the applicant regarding the need for a written procedure
(Rule 37 § 1). Thereafter, in accordance with the Orders and
directions of the President of the Chamber, the following documents
were lodged at the registry:
- on 23 June 1987, the Government's memorial;
- on 21 October and 7 December 1987, various documents requested from
the Government;
- on 3 November 1987, the applicant's claims under Article 50
(art. 50) of the Convention.
5. On 7 August 1987, after consulting, through the Registrar, the
Agent of the Government, the Delegate of the Commission and the lawyer
for the applicant, the President directed that the oral proceedings
should open on 23 November 1987 (Rule 38).
6. On 6 November 1987, the Government submitted a document of its
own motion. On 16 and 23 November respectively, the applicant and the
Government lodged a number of documents in reply to provisional
questions put to them by the President of the Court.
7. The hearing was held in public at the Human Rights Building,
Strasbourg, on the appointed day. Immediately prior to its opening,
the Court had held a preparatory meeting.
There appeared before the Court:
- for the Government
Mr. H. Corell, Ambassador, Under-Secretary for
Legal and Consular Affairs,
Ministry for Foreign Affairs, Agent,
Ms. L. Moore, Legal Adviser, Ministry of Justice, Counsel;
- for the Commission
Mr. F. Ermacora, Delegate;
- for the applicant
Mr. C. Arnewid, advokat, Counsel.
The Court heard addresses by Mr. Corell for the Government, by
Mr. Ermacora for the Commission and by Mr. Arnewid for the applicant,
as well as their replies to its questions.
8. Following deliberations held on 26 November 1987, the Chamber,
by unanimous decision, relinquished jurisdiction in favour of the
plenary Court (Rule 50 of the Rules of Court).
9. On the President's instructions, the Registrar requested the
Commission to produce a number of documents, and these were supplied
on 7 December 1987. On 9 December, the Registrar received further
observations on Article 50 (art. 50) from the applicant.
10. Having taken note of the agreement of the Agent of the
Government and the concurring opinions of the Delegate of the
Commission and of the applicant, the Court decided on 29 January 1988
that the consideration of the case should continue without resumption
of the oral proceedings (Rule 26).
AS TO THE FACTS
I. Particular circumstances of the case
11. The applicant, Mr. John Ekbatani, was born in 1930. He is a
citizen of the United States of America and, at the time of the
domestic proceedings in question, he resided at Gothenburg.
12. The applicant came to Sweden in 1978 to do certain research
work at the University of Gothenburg. However, his initial plans did
not come to fruition and his financial situation forced him to look
for other work. In March 1981 he found a job at the Gothenburg
Tramway Company (Göteborgs Spårvägar). He was, however, obliged to
pass a Swedish driving test, since he only had an American driver's
licence. On 14 April 1981 he took the test but failed. This led to
an angry exchange of views on 7 May 1981 between the applicant and the
traffic assistant who had been in charge of the test; subsequently
the traffic assistant reported the incident to the police.
13. In August 1981 the applicant was questioned by the police
about the matter, and on 7 October 1981, he was charged with
threatening a civil servant in breach of Chapter 17, section 1 of the
Penal Code (brottsbalken).
14. During the trial hearing (huvudförhandling) before the City
Court of Gothenburg (Göteborgs tingsrätt) on 9 February 1982, both the
applicant and the traffic assistant were heard. On this testimony the
City Court in a judgment on the same day found the applicant guilty of
the charge brought against him and sentenced him to a fine of
600 Swedish Crowns (SEK). The costs of the proceedings were to be
borne by the State. At the City Court the applicant was assisted by
two public defence lawyers.
15. On 17 February 1982, the applicant appealed against this
judgment to the Court of Appeal for Western Sweden (hovrätten för
Västra Sverige) requesting acquittal as he claimed he had not
committed the criminal act of which he was accused. Before the Court
of Appeal, he was represented, first by a public defence lawyer and
later by a private counsel.
In his first written statement of evidence to the Court of Appeal on
18 June 1982, the applicant took it for granted that a hearing would
be held and requested that the traffic assistant appear in person
before the Court of Appeal.
On 20 July 1982, the public prosecutor declared that he did not wish
to adduce any new evidence. At the same time he applied for the case
to be dealt with without a hearing in the Court of Appeal. In the
event of a hearing he requested a rehearing of the testimony of both
the applicant and the traffic assistant.
In a new statement of evidence of 20 August 1982, the applicant's
counsel requested that a witness be heard. The witness was to inform
the Court about "the applicant as a person and his credibility". In
his reply of 16 September 1982, the public prosecutor did not oppose
the calling of this new witness if a hearing were to be held.
However, he asked that, in that event, three other new witnesses
should be heard to prove inter alia "Mr. Ekbatani's lack of
credibility and that the [traffic assistant's] statement of the course
of events on 7 May 1981 was correct".
The applicant's defence counsel, on 27 September 1982, objected to the
calling of these three new witnesses.
On 4 October 1982, the Court of Appeal informed the parties by means
of a written notice that, as the case might be determined without a
hearing, they were invited to file their final submissions in writing.
On 6 October 1982, the public prosecutor declared that he had no
objection to the Court of Appeal's giving judgment without a hearing.
He added that, if there was a hearing, he would insist on the
examination of the three new witnesses. On 19 October 1982, the
applicant's counsel stated his objection to the case being determined
on the basis of the case-file, on the ground that a hearing was
necessary for a thorough examination of the case. He also reiterated
his objections to the calling of the witnesses called for by the
prosecution. He added that, if the Court of Appeal should reach a
decision on the basis of the case-file and acquit the applicant, he
claimed reimbursement of his costs and expenses.
16. The Court of Appeal held no hearing and in its judgment
of 12 November 1982 simply stated: "The Court of Appeal confirms the
City Court's judgment."
17. On 7 December 1982, the applicant appealed to the Supreme
Court (högsta domstolen). He asked the Supreme Court either to quash
the Court of Appeal's decision and send the case back for a hearing,
or to acquit him, or to remit the sentence imposed.
In support of his claims he stated:
"The case concerns the credibility of Mr. Ekbatani and of the
aggrieved party. In support of his credibility, Mr. Ekbatani has
requested the hearing of a person who was not heard by the City Court.
The prosecutor has not objected to the hearing of the new witness by
the Court of Appeal. Since the case concerns new evidence of decisive
importance for the outcome of the case, the second sub-paragraph of
section 21 in Chapter 51 of the Code of Judicial Procedure
(rättegångsbalken) ought not to be applied. The preparatory work also
indicates that great consideration should be given to the wishes of
the parties even in the case of a fine and in particular to those of
the accused (Nytt Juridiskt Arkiv II 1943, pp. 670 et seq.). Also the
prosecutor requested the hearing of new evidence before the Court of
Appeal. For Mr. Ekbatani it is of great importance that he is not
sentenced without having received an opportunity to have the evidence
adduced by him tested. The Court of Appeal ought to make its own
assessment of Mr. Ekbatani. In addition, the holding of a hearing
would not lead to any major increase in the costs of the proceedings."
On 3 May 1983, the Supreme Court held:
"The Supreme Court finds no reason to grant leave to appeal, for which
reason the Court of Appeal's judgment shall stand."
18. Under the rules on public access to official documents,
contained in the Freedom of the Press Act (tryckfrihetsförordningen)
and the Secrecy Act (sekretesslagen, 1980:100), the case-files from
the courts involved were all available to the public.
II. Relevant domestic law
19. According to Chapter 21 of the Code of Judicial Procedure,
lower courts shall as a rule render judgment in criminal cases only
after the accused has been able to defend himself at an oral hearing.
Exceptions to this rule do however exist, particularly at appellate
level. Thus Chapter 51, section 21 of the Code of Judicial Procedure,
as applicable at the relevant time, stated that:
"the Court of Appeal may decide the case without a hearing if the
prosecutor appeals only for the benefit of the accused or if an appeal
lodged by the accused is supported by the opposing party.
The case may be decided without a hearing if the lower court has
acquitted the accused or discharged the offender or found him to be
exempted from punishment by virtue of mental abnormality or if it has
sentenced him to a fine or ordered him to pay a money penalty (vite)
and there is no reason to impose a more severe sanction than those
mentioned above or to impose any other sanction ..."
As of 1 July 1984 - and therefore after the facts of the present case -
this provision has been amended to read as follows in the relevant
parts (Svensk Författningssamling 1984:131):
"The Court of Appeal may dispose of an appeal on the merits without a
hearing,
1. if the prosecutor appeals only for the benefit of the accused,
2. if an appeal brought by the accused is supported by the opposing
party,
3. if the appeal is plainly unfounded, or
4. if no cause exists to hold the accused legally liable, or to
impose a sanction upon him, or to impose a sanction other than a fine
or conditional sentence, or a combination of such sanctions.
...
If, in a case referred to [above], a party has requested a hearing,
this shall take place unless manifestly unnecessary.
...
For a ruling not relating to the merits a hearing need not take
place."
20. The Court of Appeal has the power to review both questions of
law and of fact. However, there are certain limitations to the Court
of Appeal's full jurisdiction. Chapter 51, section 25 of the Code of
Judicial Procedure (as amended by Laws 1981: 22 and 228) contains a
rule proscribing reformatio in pejus in certain cases:
"In an appeal lodged by the accused, or by the prosecutor for the
benefit of the accused, the Court of Appeal may not sentence the
accused to a criminal sanction more severe than the one imposed by the
lower court. If the accused was sentenced by the lower court to
imprisonment, the Court of Appeal may order suspension of sentence,
probation or placing under special care; in addition to suspension of
sentence and to probation or placing under care within the social
service, the Court of Appeal may impose a fine or probation coupled
with imprisonment pursuant to Chapter 28, section 3, of the Penal
Code. When the lower court has ordered a sanction of the kind
referred to above, the Court of Appeal may impose a different kind of
sanction."
PROCEEDINGS BEFORE THE COMMISSION
21. In his application lodged with the Commission on 20 June 1983
(no. 10563/83) the applicant made a number of complaints regarding
both his treatment by the Swedish authorities and the proceedings
before the Swedish courts at issue in the present case (see
paragraphs 11-17 above). He invoked Articles 2, 3, 6, 7, 13 and 14
(art. 2, art. 3, art. 6, art. 7, art. 13, art. 14) of the Convention.
22. On 5 July 1985, the Commission declared admissible "the
complaint that the applicant did not get a public hearing before the
Court of Appeal" and rejected the remainder of the complaints as
inadmissible. In its report of 7 October 1986 (made under Article 31)
(art. 31) the Commission expressed the opinion that there had been a
violation of Article 6 § 1 (art. 6-1) of the Convention (eleven votes
to one).
The full text of the Commission's opinion contained in the report is
reproduced as an annex to the present judgment.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)
23. The applicant complained that the Court of Appeal had decided
his case without a hearing. He alleged that this had constituted a
breach of Article 6 § 1 (art. 6-1) of the Convention, the relevant
parts of which read as follows:
"In the determination of ... any criminal charge against him, everyone
is entitled to a fair and public hearing ... by an independent and
impartial tribunal established by law. ..."
24. This provision was clearly applicable to the proceedings
brought against the applicant including those before the Court of
Appeal and this was not disputed. Criminal proceedings form an entity
and the protection afforded by Article 6 (art. 6) does not cease with the
decision at first instance; indeed, according to the Court's
consistent case-law a State which institutes courts of appeal or
cassation "is required to ensure that persons amenable to the law
shall enjoy before these courts the fundamental guarantees contained
in [this] Article" (art. 6) (as the most recent authority, see the
Monnell and Morris judgment of 2 March 1987, Series A no. 115,
p. 21, § 54).
25. With regard to proceedings at first instance it flows from the
notion of a fair trial that a person charged with a criminal offence
should, as a general principle, be entitled to be present at the trial
hearing (see the Colozza judgment of 12 February 1985, Series A
no. 89, pp. 14-15, §§ 27 and 29; see also the above-mentioned Monnell
and Morris judgment, Series A no. 115, p. 22, § 58). In the present
case this requirement was satisfied since the City Court determined
the criminal charges brought against the applicant only after it had
held a public hearing at which the applicant appeared, gave evidence
and argued his case (see paragraph 14 above). However, he did not
receive such a hearing before the Court of Appeal.
26. The Government maintained that only the fundamental guarantees
of Article 6 (art. 6) applied in the appeal proceedings and that these
did not include further oral hearings before courts of second
instance. In support of this view they invoked in particular
Article 2 of Protocol No. 7 (P7-2) and the statement in the
Explanatory Report to the said Protocol (P7) that the "modalities for the
exercise of the right [of appeal] and the grounds on which it may be
exercised [are] to be determined by domestic law" (H (84) 5 rev.,
p. 9, § 18).
Leaving aside the question of the authority of this Protocol (P7)
which has not yet entered into force, the Court recalls Article 7
(P7-7) thereof. According to this provision, Article 2 (P7-2) is to be
regarded as an addition to the Convention and all the provisions of
the Convention, including Article 60 (art. 60), are to apply
accordingly. Thus, the Explanatory Report states that "among those
provisions, attention is drawn in particular to Article 60 (art. 60)
under the terms of which 'Nothing in this Convention shall be
construed as limiting or derogating from any of the human rights and
fundamental freedoms which may be ensured under the laws of any High
Contracting Party or under any other agreement to which it is a Party'
.... The Protocol (P7) cannot be interpreted as prejudicing the
rights guaranteed in the Convention ..." (ibid., p. 13, § 43). Taking
both Articles (P7-7, art. 60) into account, the Court can find no
warrant for the view that the addition of this Protocol (P7) was
intended to limit, at the appellate level, the scope of the guarantees
contained in Article 6 (art. 6) of the Convention.
27. The manner of application of Article 6 (art. 6)
to proceedings before courts of appeal does, however, depend on the
special features of the proceedings involved; account must be taken of
the entirety of the proceedings in the domestic legal order and of the
role of the appellate court therein (see, as the most recent
authority, the above-mentioned Monnell and Morris judgment, Series A
no. 115, p. 22, § 56).
28. The question before the Court is therefore whether a departure
from the principle that there should be a public hearing at which the
accused has the right to be present and argue his case, could, in
regard to the proceedings before the Court of Appeal, be justified in
the circumstances of the present case by the special features of the
domestic proceedings viewed as a whole (see, mutatis mutandis, the
Axen judgment of 8 December 1983, Series A no. 72, p. 12, § 28).
In deciding this question, the Court must have regard to the nature of
the Swedish appeal system, the scope of the Court of Appeal's powers
and the manner in which the applicant's interests were actually
presented and protected before the Court of Appeal (see, mutatis
mutandis, the above-mentioned Monnell and Morris judgment, Series A
no. 115, p. 22, § 56).
29. The Government claimed that, as the applicant had already
received a full and fair hearing within the meaning of Article 6
(art. 6) before the City Court, it was not necessary that he be
granted a complete second chance at the appellate level including the
right to appear in person at a hearing to argue his case. The
conclusive argument was, in their view, that the Court of Appeal could
not increase the sentence imposed because of the application in the
applicant's case of the provision prohibiting reformatio in pejus (see
paragraph 20 above). The requirement of fairness and the object and
purpose of Article 6 (art. 6) were said to be satisfied by the manner
in which the Court of Appeal had conducted its examination of the
case; in particular, there was equality of arms as between the
applicant and the prosecution, the Court of Appeal had before it all
relevant papers for determining the case, and, as regards publicity,
the full case-file was available to the public (see paragraph 18
above).
30. It is true that the Court of Appeal observed the principle of
"equality of arms". In particular, neither Mr. Ekbatani nor the
prosecutor was allowed to appear in person before it and both were
given equal opportunities to present their cases in writing. However,
the Court would recall that this principle is "only one feature of the
wider concept of a fair trial in criminal proceedings" (see, inter
alia, the above-mentioned Monnell and Morris judgment, Series A
no. 115, p. 94, § 62). The observance of this principle is therefore
not decisive in the Court's examination of the applicant's complaint.
31. The Court has on a number of occasions held that, provided
that there has been a public hearing at first instance, the absence of
"public hearings" before a second or third instance may be justified
by the special features of the proceedings at issue. Thus,
leave-to-appeal proceedings and proceedings involving only questions
of law, as opposed to questions of fact, may comply with the
requirements of Article 6 (art. 6), although the appellant was not
given an opportunity of being heard in person by the appeal or
cassation court (see, inter alia, the above-mentioned Monnell and
Morris judgment, Series A no. 115, p. 22, § 58 (leave to appeal) and
the Sutter judgment of 22 February 1984, Series A no. 74, p. 13, § 30
(court of cassation)). However, in the latter case, the underlying
reason was that the courts concerned did not have the task of
establishing the facts of the case, but only of interpreting the legal
rules involved.
32. Here, the Court of Appeal was called upon to examine the case
as to the facts and the law. In particular, it had to make a full
assessment of the question of the applicant's guilt or innocence
(see paragraph 20 above). The only limitation on its jurisdiction was
that it did not have the power to increase the sentence imposed by the
City Court.
However, the above-mentioned question was the main issue for
determination also before the Court of Appeal. 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
(see paragraph 15 above) - 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 rehearing of the
applicant and the complainant.
The limitations on the Court of Appeal's powers as a result of the
prohibition of reformatio in pejus related only to sentencing. They
cannot be considered to be relevant to the principal issue before the
Court of Appeal, namely the question of guilt or innocence. Neither
can the fact that the case-file was available to the public.
33. Having regard to the entirety of the proceedings before the
Swedish courts, to the role of the Court of Appeal, and to the nature
of the issue submitted to it, the Court reaches the conclusion that
there were no special features to justify a denial of a public hearing
and of the applicant's right to be heard in person. Accordingly,
there has been a violation of Article 6 § 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
34. Article 50 (art. 50) of the Convention provides:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
The applicant sought financial compensation for pecuniary damage
allegedly suffered and reimbursement of costs and expenses. He made
no claim for non-pecuniary damage and this is not a matter which the
Court has to examine ex officio (see, inter alia, the Bouamar judgment
of 29 February 1988, Series A no. 129, p. 26, § 68).
A. Damage
35. The applicant originally claimed damages of 3.6 million SEK.
At the hearing his representative explained that the claim was based
on the applicant's strong feelings that the judgment of the Court of
Appeal had disrupted both his academic work and working life. After
the hearing the applicant withdrew this claim and proposed instead "a
liveable monthly pension ... with free access to doctors and health
insurance". The applicant also claimed reimbursement of the fine of
600 SEK imposed on him.
The Government contested both claims and indicated that they
considered that a finding of a violation would afford just
satisfaction to the applicant. The Commission's Delegate did not
express any opinion and stated that it was for the Court to take a
decision in the light of its case-law.
The Court cannot speculate on the outcome of the proceedings before
the Court of Appeal had that Court decided to allow the applicant to
take part in a public hearing. No causal link has thus been
established between the breach of the Convention found and the various
pecuniary losses alleged. The applicant's claims under this head must
therefore be rejected.
B. Costs and expenses
36. At the hearing, the applicant claimed in respect of costs and
expenses:
(a) 2,000 SEK for his private defence counsel in the proceedings
before the Court of Appeal;
(b) 500 SEK for his own personal expenses;
(c) 110,000 SEK for his representation before the Commission and the
Court.
The Government accepted only the third claim. The Commission did not
express any opinion.
37. Regarding the first claim, it seems that the assistance of
this private defence counsel was of importance for the applicant's
endeavours to be granted the right to be present at a hearing before
the Court of Appeal. Accordingly, these costs were necessarily
incurred with a view to preventing the breach of Article 6 § 1
(art. 6-1) of the Convention. The applicant's second claim being
intimately linked with the first, the Court concludes that the
applicant is entitled to recover the entirety of both claims.
38. The third claim was, with reference to the special
circumstances of the applicant's representation, accepted by the
Government. As a result the Court does not consider it necessary to
seek to assess the reasonableness thereof. The sum claimed, after
deduction of the 24,216.57 French francs (FF) already received from
the Council of Europe in respect of legal aid, is thus accepted.
FOR THESE REASONS, THE COURT
1. Holds by ten votes to six that Article 6 § 1 (art. 6-1)
has been violated;
2. Holds unanimously that the respondent State is to pay to the
applicant in respects of costs and expenses 112,500 SEK (one hundred
and twelve thousand five hundred Swedish crowns) less 24,216.57 FF
(twenty-four thousand, two hundred and sixteen French francs and
fifty-seven centimes), to be converted into Swedish crowns at the rate
applicable on the date of delivery of the present judgment;
3. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 26 May 1988.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
A declaration by Mr. Lagergren and, in accordance with Article 51 § 2
(art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court,
the following separate opinions are annexed to this judgment:
- dissenting opinion of Mr. Thór Vilhjálmsson;
- dissenting opinion of Mr. Matscher joined by Mrs. Bindschedler-Robert
and Mr. Gölcüklü;
- dissenting opinion of Mr. Pinheiro Farinha;
- dissenting opinion of Mr. Bernhardt.
Initialled: R.R.
Initialled: M.-A.E.
DECLARATION BY JUDGE LAGERGREN
It is to be assumed that under the new Swedish legislation (see
paragraph 19 of the judgment) breaches of the Convention of the kind
found in the present case will not occur again.
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.
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.