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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> HELMERS v. SWEDEN - 11826/85 [1991] ECHR 44 (29 October 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/44.html
Cite as: (1993) 15 EHRR 285, [1991] ECHR 44, 15 EHRR 285
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In the case of Helmers v. Sweden*,
The European Court of Human Rights, taking its decision in
plenary session in pursuance of Rule 51 of the Rules of Court**
and composed of the following judges:
Mr J. Cremona, President,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Sir Vincent Evans,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 23 November 1990,
25 April 1991 and 26 September 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* 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.
_______________
PROCEDURE
1. The case was brought before the Court on 6 April 1990
by the European Commission of Human Rights ("the Commission")
and on 16 May 1990 by the Government of the Kingdom of Sweden
("the Government"), within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention"). It originated in an application
(no. 11826/85) against Sweden lodged with the Commission under
Article 25 (art. 25) by Mr Reinhard Helmers, a German citizen,
on 6 February 1985.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) ion whereby Sweden recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46).
The object of the request and of the application was to obtain
a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under
Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant
stated that he wished to take part in the proceedings and
sought leave to present his case himself with the assistance
of a lawyer (Rule 30 para. 1 in fine). On 19 June 1990 the
President granted his request as far as the written procedure
was concerned, and on 10 October 1990, in respect of the
public hearing also.
3. The Chamber to be constituted included ex officio
Mrs E. Palm, the elected judge of Swedish nationality (Article 43
of the Convention)1 (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 26 April
1990 the President of the Court drew by lot, in the presence
of the Registrar, the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert, Mr F.
Gölcüklü, Mr J. Pinheiro Farinha, Mr R. Bernhardt, Mr A.
Spielmann and Mr S.K. Martens (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
_______________
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.
_______________
4. The German Government, having been informed by the
Registrar of their right to intervene in the proceedings
(Article 48, sub-paragraph (b), of the Convention and Rule 33
para. 3 (b)) (art. 48-b), indicated in a letter of
30 April 1990 that they did not intend to do so.
5. Mr Ryssdal assumed the office of President of the
Chamber (Rule 21 para. 5) and, through the Registrar,
consulted the Agent of the Government, the Delegate of the
Commission and the applicant on the need for a written
procedure (Rule 37 para. 1). Thereafter, in accordance with
the President's orders, the Registrar received the applicant's
memorial on 20 August 1990, the Government's memorial on
3 September 1990, the appendices to the applicant's memorial on
5 October 1990 and certain documents from the Commission's
file on 16 October 1990. In a letter of 12 October 1990 the
Secretary to the Commission informed the Registrar that the
Delegate would submit his observations at the hearing.
6. Having consulted, through the Registrar, those who
would be appearing before the Court, the President directed on
11 October 1990 that the oral proceedings should open on
22 November 1990 (Rule 38). On 26 October he also granted a
request from the applicant for legal aid (Rule 4 of the
Addendum to the Rules of Court).
7. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had
held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr H. Corell, Ambassador, Under-Secretary
for Legal and Consular Affairs, Ministry
for Foreign Affairs, Agent;
(b) for the Commission
Mr J.A. Frowein, Delegate;
(c) the applicant and his counsel, Mr B. Malmlöf, advokat.
The Court heard addresses by Mr Corell for the Government, by
Mr Frowein for the Commission and by the applicant himself, as
well as their replies to its questions.
8. On 23 November 1990 the Chamber decided unanimously,
under Rule 51, to relinquish jurisdiction forthwith in favour
of the plenary Court. Having taken note of the Government's
agreement and the opinions of the Commission and the
applicant, the Court decided on 20 February 1991 to proceed to
judgment without holding a further hearing (Rule 26).
9. On 15 March 1991 the Commission filed a number of
documents which the Registrar had sought from it on the
President's instructions. On 8 April 1991 the applicant filed
certain additional documents with the President's
authorisation (Rule 37 para. 1, second sub-paragraph).
10. At the final deliberations Mr Cremona, the Vice-
President of the Court, replaced Mr Ryssdal as President, the
latter being unable to take part in the further consideration
of the case (Rule 9).
AS TO THE FACTS
I. Particular circumstances of the case
11. The applicant, Mr Reinhard Helmers, is a German
citizen. He is a university lecturer and resides in Lund in
Sweden.
12. In 1979 Mr Helmers was not selected for appointment to
an academic post at the University of Lund. As he considered
that the decision was discriminatory and that the recruitment
board had been biased, he appealed to the National Board of
Universities and Colleges (universitets- och högskoleämbetet,
"UHÄ"), which requested a specially established university
committee to submit a written opinion. In this opinion, which
was dated 2 October 1980, the committee stated, inter alia,
that in his appeal Mr Helmers had accused the person
eventually selected for the post, Mr L., of having obtained it
by means of secret pressure exercised on one of the members of
the recruitment board by a Professor E. (who had also taken
part in the recruitment procedure) as a reward for Mr L.'s
assistance in a campaign led by Professor E. against Mr Helmers.
On 10 December 1981 the Government, at last instance, rejected
the applicant's appeal against the appointment decision.
13. Meanwhile, the applicant, who considered that the
university committee's statement amounted to defamation, had
reported the matter to the police. However, the Chief
District Prosecutor of Lund chose not to pursue the
investigation and his decision was upheld on appeal,
ultimately by the Prosecutor General.
14. The applicant then decided to use his entitlement
under Chapter 20, section 8, of the Code of Judicial Procedure
(rättegångsbalken) to bring a private prosecution for
defamation or, alternatively, aggravated defamation (förtal or
grovt förtal, Chapter 5, sections 1 and 2, of the Criminal
Code, brottsbalken) and for making false statements (osant
intygande, Chapter 15, section 11, of the Criminal Code),
against one of the members of the special university
committee, Mr F., and against its secretary, Ms E. Ms E. was
also accused of having incited Mr F. to commit the offences
(Chapter 23, section 4, of the Criminal Code). The maximum
sentence prescribed by law for aggravated defamation was two
years' imprisonment.
Mr Helmers also availed himself of the possibility under
Chapter 22, section 1, of the Code of Judicial Procedure of
joining an action for damages to the private prosecution, and
he sought compensation in the amount of one Swedish krona from
each of the accused.
15. The Lund District Court (tingsrätten) held a public
hearing on 9 September 1981, at which the applicant and the
defendants had the opportunity to address the court.
On 19 November 1981 the court delivered its judgment. It
noted that the special committee's summary of Mr Helmers'
appeal satisfied the objective criteria of defamation in that
it was likely to discredit the applicant in the eyes of
others. However, the court found that neither Ms E. nor Mr F.
had incurred any criminal liability: Ms E. could not be held
responsible for the committee's statements as she had only
been the rapporteur and not a decision-taking member; it was
true that Mr F. had not been under any duty to make a
statement as he had not been present when the committee
examined Mr Helmers' appeal, but it had to be considered
justifiable for him, as a member of the committee, to join its
opinion. After examining the correctness of the summary, the
District Court concluded:
"It was not an easy task for the committee to summarise
Mr Helmers' long submissions which, in the opinion of the
court, were also difficult to interpret. The summary made
must therefore, as Mr F. and Ms E. have maintained, be
considered as a reasonable interpretation of what Mr Helmers
has put forward. In any event, it has not been established
that Mr F. knowingly made any untrue statements."
The District Court furthermore found no evidence to support
the allegation that Ms E. had made a false statement or
incited Mr F. to commit a criminal offence. The applicant's
private prosecution was accordingly dismissed and the claim
for compensation was also rejected.
16. On 9 December 1981 Mr Helmers appealed to the Court of
Appeal (Hovrätten) of Skåne and Blekinge. He submitted, inter
alia, the following.
The District Court had, contrary to well-established case-law,
excluded criminal liability on the part of Ms E. on the ground
that she had only been rapporteur and not a decision-taking
member of the committee.
The summary made by the special committee was untrue as a
matter of fact. The fact that one of the professors involved
in the recruitment procedure, Professor E., had for a long
time led a campaign against Mr Helmers had become a matter of
public knowledge throughout the whole of Europe, as could be
seen from legal textbooks, parliamentary documents, newspaper
articles and radio and television programmes. It was also
well-known that Professor E. had sought to have abolished the
subject for the teaching of which the impugned appointment
procedure took place and this was evidenced by, amongst other
things, a complaint to the Chancellor of Justice
(justitiekanslern) and an appeal by the students to UHÄ.
Mr Helmers claimed that in view of the above facts, his appeal
submissions to the UHÄ (see paragraph 12 above) could not
possibly be construed as anything more than a challenge, on
account of bias, of Professor E.'s involvement in the
appointment decision. He stated that this must have been
clear both to Ms E. and Mr F. and that they were thus both
guilty of defamation because of their libellous statement in
the committee's opinion.
He added that, even if the District Court had not found it to
be an easy task to summarise his submissions, the same could
not hold true for the defendants, who had been in possession
of all the documents in the appointment case for four months.
In this connection, he also pointed out that his appeal
submissions had referred to all the relevant facts and these
were well-known to those concerned at the university
department in question.
Finally, he requested the Court of Appeal to hold an oral
hearing.
17. On 11 March 1982 the Court of Appeal received Ms E.'s
and Mr F.'s reply to Mr Helmers' appeal. This reply was sent
to Mr Helmers the next day, together with a note indicating
that the case could be decided without an oral hearing and
that he had 14 days to file his pleadings with the court.
Mr Helmers submitted these on 16 April and they were forwarded to
the accused the same day, together with a note similar to the
one sent to Mr Helmers.
Between April and November 1982 the parties lodged a number of
further written observations with the court. Mr Helmers
claimed that some of the material submitted by the defendants
was irrelevant as it was a mere appeal to political prejudices
and he asked the court to refuse it. He referred in
particular to four newspaper articles written by others and a
press release issued by the Secretary to the European
Commission of Human Rights on 15 March 1982, all of which
material related to a previous application by Mr Helmers to
the Commission (no. 8637/79), which had been declared
inadmissible on 10 March 1982 (see paragraphs 24-25 below).
18. In a judgment of 28 November 1983 the Court of Appeal
decided the case on the basis of the written evidence, without
having held any public hearing. It rejected the applicant's
plea that some of the material submitted by the defendants
should be ruled inadmissible. As to the merits, the court
found both Mr F. and Ms E. responsible for the committee's
opinion of 2 October 1980, which it considered was likely to
discredit the applicant in the eyes of others. The judgment
went on to state:
"The scope of criminal liability for defamation is limited by
the provision contained in Chapter 5, section 1, second
sub-paragraph, of the Criminal Code. A person who has uttered
a defamatory statement is thus free from liability, inter
alia, if he was under a duty to make a statement and the
information given was true or had a reasonable foundation.
The legislature has included appointment cases among those in
which there may be a conflict between opposing interests.
The circumstances were such that both Mr F. and Ms E. were
under a duty to make a statement. The fact that Mr F. gave
his opinion only later is of no relevance in this context.
The summary must furthermore, just as the District Court
found, be considered as a reasonable précis of what Mr Helmers
put forward in his memorial supporting his appeal. Mr F. and
Ms E. therefore had a reasonable foundation for the
information they provided. Accordingly they cannot be
convicted of defamation. Nor can the Court uphold the
prosecution brought against them on the charge of having made
false statements or that brought against Ms E. on the charge
of having incited these offences.
As a result of this conclusion in respect of the defendants'
criminal liability, Mr Helmers' claim for damages must be
dismissed - just as the District Court found."
19. The applicant appealed to the Supreme Court (högsta
domstolen), claiming that a number of serious breaches of
procedural law had occurred at first instance and that
although he had pointed out these irregularities to the Court
of Appeal, it had given a judgment on the merits based on new
evidence without having held an oral hearing. In support of
his complaints Mr Helmers also invoked Article 6 (art. 6) of
the Convention and the serious and far-reaching consequences
the outcome of the proceedings would have for him.
On 21 December 1984 the Supreme Court refused the applicant
leave to appeal.
II. The Code of Judicial Procedure
20. According to Chapter 21 of the Code of Judicial
Procedure, lower courts must not as a rule give judgment in
criminal cases until 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, as worded at the relevant time (it was
subsequently amended with effect from 1 July 1984), provided:
"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 ... "
21. The Court of Appeal has the power to review questions
both of law and of fact. However, there are some limits on
its jurisdiction. Section 23 of Chapter 51, for instance,
lays down that the Court of Appeal may not normally change the
lower court's assessment of the evidence to the disadvantage
of the accused without the evidence in question being produced
afresh before the Court of Appeal; Chapter 51, section 25 (as
amended by Laws 1981:22 and 228), also contains a rule
prohibiting the appellate court, in cases where the appeal is
lodged by the accused or by the prosecutor for the benefit of
the accused, from imposing a sentence which can be considered
more severe than that imposed at first instance.
PROCEEDINGS BEFORE THE COMMISSION
22. In his application (no. 11826/85) lodged with the
Commission on 6 February 1985 Mr Helmers alleged breaches of
Articles 6, 9, 10, 13, 14, 17 and 25 (art. 6, art. 9, art. 10,
art. 13, art. 14, art. 17, art. 25) of the Convention.
On 14 March 1986 and on 5 May 1989 the Commission declared all
his complaints inadmissible except that under Article 6
(art. 6) concerning the failure to hold a public hearing before the
Court of Appeal, which it accepted on the latter date. In its
report of 6 February 1990 (made under Article 31) (art. 31),
the Commission expressed the unanimous opinion that there had
been a violation of this provision. The full text of its
opinion is reproduced as an annex to this judgment*.
_______________
* 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.
_______________
AS TO THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 para. 1 (art. 6-1)
23. Before the Court the applicant alleged a number of
different violations of his rights under Article 6 para. 1
(art. 6-1) of the Convention, which reads:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing ... by [a] ... tribunal ... ."
A. Scope of the case
24. Mr Helmers first requested the Court to reopen his
earlier application (no. 8637/79, see paragraph 17 above).
This concerned, inter alia, certain restrictions on his right
of access to court, in particular regarding the possibility of
bringing a private prosecution against high level officials in
connection with a decision taken in 1974 not to appoint him to
a post at the University of Lund.
Mr Helmers maintained that the present application,
no. 11826/85, was a continuation and repetition of the earlier
one. The discrimination which he had allegedly suffered in
the appointment procedure in 1973-1974 was still effective.
Furthermore, the Commission had made a "grave judicial" error
in declaring part of the earlier application inadmissible for
non-exhaustion of domestic remedies because he had not brought
any private prosecution for defamation against the officials
concerned; in Mr Helmers' opinion these officials had been
protected by law from such prosecutions.
25. The Court recalls that, under the Convention, the
compass of the case before it is delimited by the Commission's
decision on admissibility (see, inter alia, the Powell and
Rayner judgment of 21 February 1990, Series A no. 172, pp. 13-14,
para. 29).
None of the above complaints was declared admissible by, or
indeed appears to have been raised before, the Commission in
the present case. Consequently, the Court does not have
jurisdiction to deal with them. Furthermore, a decision by
the Commission that an application is inadmissible is final
and not open to appeal.
26. As regards application no. 11826/85, the only
complaint declared admissible by the Commission concerned an
alleged breach of Article 6 (art. 6) of the Convention as a
result of the Court of Appeal's decision not to hold a public
hearing.
B. Applicability of Article 6 para. 1 (art. 6-1)
27. The "civil" character of the right to enjoy a good
reputation was not disputed before the Court and follows also
from established case-law (see the Golder judgment of
21 February 1975, Series A no. 18, p. 13, para. 27).
28. Nevertheless, the Government claimed that Article 6
para. 1 (art. 6-1) did not apply to the proceedings at issue
for the following reasons.
Firstly, Article 6 para. 1 (art. 6-1) did not enshrine any
right to bring a criminal prosecution against another person
and it was accordingly inapplicable to the private prosecution
instituted by Mr Helmers.
Secondly, although the provision applied, in principle, to a
civil suit for damages, the applicant had himself chosen to
have his civil action joined to the criminal proceedings and
dealt with in the manner prescribed for such proceedings: he
had thereby voluntarily accepted that Article 6 para. 1
(art. 6-1) would not be applicable.
In any event, the civil action had to be considered as purely
symbolic having regard to the fact that the applicant only
claimed 1 krona in damages from each of the accused.
Moreover, no civil right was at issue since there was no
dispute regarding this sum as such.
29. The Court notes first, like the Commission, that
although Article 6 para. 1 (art. 6-1) does not guarantee a
right for the individual to institute a criminal prosecution
himself, such a right was conferred on the applicant by the
Swedish legal system in order to allow him to protect his
reputation. Indeed, this remedy was referred to by the
Government, in the context of application no. 8637/79, as an
effective one for this purpose (see paragraph 24 above).
As to the effect of the symbolic nature of the claim for
damages, the existence of a dispute ("contestation")
concerning a "civil right" does not necessarily depend on
whether or not monetary damages are claimed; what is important
is whether the outcome of the proceedings is decisive for the
"civil right" at issue (see, inter alia, the Moreira de
Azevedo judgment of 23 October 1990, Series A no. 189,
p. 17, para. 66). This was certainly so in the
present case as the outcome of both the private prosecution
and the claim for damages depended on an assessment of the
merits of Mr Helmers' complaint that the accused had
unjustifiedly attacked and harmed his good reputation.
Article 6 para. 1 (art. 6-1) was accordingly applicable to the
joined proceedings.
30. Those appearing before the Court agreed that there was
such a close link between the outcome of the private
prosecution and the civil claim for damages that the former
was decisive for the latter. There is thus no reason to
distinguish between the two actions for the purposes of
examining the merits of the applicant's complaint.
C. Compliance with Article 6 para. 1 (art. 6-1)
31. The manner of application of Article 6 (art. 6) to
proceedings before courts of appeal depends 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 Ekbatani judgment of 26 May 1988,
Series A no. 134, p. 13, para. 27).
32. The Court notes at the outset that a public hearing
was held at first instance. As in several earlier cases, the
main question is whether a departure from the principle that
there should be such a hearing could, in the circumstances of
the case, be justified at the appeal stage by the special
features of the domestic proceedings viewed as a whole (see,
inter alia, the above-mentioned Ekbatani judgment, p. 13,
para. 28).
In order to decide this question, regard must be had to the
nature of the Swedish appeal system, to the scope of the Court
of Appeal's powers and to the manner in which the applicant's
interests were actually presented and protected before the
Court of Appeal particularly in the light of the nature of the
issues to be decided by it (ibid., p. 14, para. 33).
There was, however, disagreement between those appearing
before the Court as to how this test should be applied in the
circumstances of the present case.
33. The Commission observed that in the determination of
the applicant's civil rights in the present case the Court of
Appeal was called upon to examine the case as to both the
facts and the law. Furthermore, the Court of Appeal did not
base its examination exclusively on the District Court's file
since both parties were given the opportunity to submit new
evidence which it later accepted. The Commission concluded
that Article 6 para. 1 (art. 6-1) required that Mr Helmers
should be allowed a public hearing before the Court of Appeal
and to be present at such a hearing if he so requested.
In support of this conclusion the Commission recalled that the
public character of proceedings before the judicial bodies
referred to in Article 6 para. 1 (art. 6-1) protects litigants
against the administration of justice in secret with no public
scrutiny and is also one of the means whereby confidence in
the courts, superior and inferior, can be maintained; by
rendering the administration of justice visible, publicity
contributes to the achievement of the aim of Article 6 para. 1
(art. 6-1), namely a fair trial, the guarantee of which is one
of the fundamental principles of any democratic society,
within the meaning of the Convention. The Delegate stated
that an oral hearing was not only an additional guarantee that
an endeavour would be made to establish the truth, but also
helped to ensure that the accused, or the person conducting,
like Mr Helmers, a private prosecution to defend his
reputation, was satisfied that his case was being determined
by a tribunal, the independence and impartiality of which he
could verify.
34. The Government argued that the scope of the superior
court's jurisdiction was not decisive in the way maintained by
the Commission. Thus, even when the court's jurisdiction
extended to both questions of law and questions of fact,
Article 6 para. 1 (art. 6-1) did not guarantee a right to an
oral hearing on appeal where - as here - the issues to be
decided were of an essentially legal character and there were
no relevant issues of fact in dispute requiring the
participation of the parties in person. This was especially
so where the offence at issue was only a minor one. In such
cases the effective control of the impartial administration of
justice was ensured, inter alia, by compliance with the
principle of equality of arms and through the public character
of the proceedings, in this instance by virtue of public
access to the case-file.
35. In the applicant's opinion, an oral hearing was
clearly required in his case: the Court of Appeal based its
judgment on new evidence and also reached its decision on
grounds different from those adopted by the District Court.
Recalling the prejudice he had suffered and the fact that the
accused risked a sentence of two years' imprisonment, he also
objected to the Government's description of the case as a
minor one.
Furthermore, public scrutiny of the Court of Appeal's handling
of the case was especially important as the Government had, so
he claimed, sought to influence the appeal proceedings by
taking their final decision in the appointment procedure just
after he had lodged his appeal (see paragraphs 12 and 16
above).
36. The Court fully recognises the value attaching to the
publicity of legal proceedings for reasons such as those
indicated by the Commission (see, inter alia, the Axen
judgment of 8 December 1983, Series A no. 72, p. 12, para.
25). However, even where a court of appeal has jurisdiction
to review the case both as to facts and as to law, the Court
cannot find that Article 6 (art. 6) always requires a right to
a public hearing irrespective of the nature of the issues to
be decided. The publicity requirement is certainly one of the
means whereby confidence in the courts is maintained.
However, there are other considerations, including the right
to trial within a reasonable time and the related need for
expeditious handling of the courts' case-load, which must be
taken into account in determining the necessity of a public
hearing at stages in the proceedings subsequent to the trial
at first instance.
Provided a public hearing has been held at first instance, the
absence of such a hearing before a second or third instance
may accordingly 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 Ekbatani
judgment, Series A no. 134, p. 14, para. 31).
37. In the above-mentioned Ekbatani case the Court was
called upon to examine how the "public hearing" requirement
should apply in appeal proceedings before a court with
jurisdiction as to both the facts and the law. Mr Ekbatani
denied the facts upon which the charge against him was
founded. However, he was convicted by the District Court on
the basis of the evidence given by the complainant. For the
Court of Appeal the crucial question therefore concerned the
credibility of the two persons involved. Nevertheless, the
Court of Appeal decided, without a public hearing, to confirm
the District Court's conviction. After an examination of the
particular circumstances of that case, the Court found that
the question of Mr Ekbatani's guilt or innocence "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 ... and by the complainant". Accordingly, the
Court considered that "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" (Series A no. 134, p. 14, para. 32).
38. In the present case, as in the Ekbatani case, the Court
of Appeal was called upon to examine both questions of fact
and questions of law (see paragraphs 16 and 21 above). In
particular, it had to make a full assessment of the
defendants' guilt or innocence.
In his notice of appeal, the applicant challenged a number of
the District Court's findings with respect to this question
(see paragraph 16 above). Thus, he maintained that the
rapporteur was also responsible under the law for the special
committee's allegedly defamatory statement. Furthermore,
relying on a number of facts not explicitly mentioned in his
appeal submissions in the appointment case, but which were
said to be generally known, at least in the circles concerned,
Mr Helmers disputed the District Court's view that the
committee's summary of his appeal was factually correct. He
also claimed that, having regard to their knowledge of the
situation obtaining at the University, the accused must have
wilfully sought to damage his reputation. He concluded that
there could not have been any "reasonable foundation" for the
libellous statement contained in the summary.
The points relied on by Mr Helmers went to the merits of the
case and, with the exception of the first, raised serious
questions as to which facts were relevant, which facts had
been proved and how the "reasonable foundation" test should be
applied. Furthermore, these points were determined by the
Court of Appeal at first instance in the case of Ms E.: the
lower court had found her not to be responsible as a matter of
law since she had not been a decision-taking member of the
committee.
In the light of these considerations and taking into account
the seriousness of what was at stake for the applicant, namely
his professional reputation and career, the Court finds that
the question of the defendants' guilt could not, as a matter
of fair trial, have been properly determined by the Court of
Appeal without a direct assessment of the evidence given in
person by Mr Helmers and by the defendants, who claimed that
they were innocent of the accusations brought against them.
39. 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 issues submitted to it, the Court
reaches the conclusion that there were no special features to
justify the Court of Appeal's 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 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
40. According to Article 50 (art. 50) of the Convention,
"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."
41. The applicant sought under this provision:
(a) 576,000 kronor as compensation for the salary loss said to
have resulted from a discriminatory refusal on the part of the
Government to apply to his case an "income guarantee contract"
("inkomstrygghetsavtalet") which the Government had entered
into with the unions in order, as the applicant put it, to
"guarantee degraded employees their old salary";
(b) compensation for the pension benefits corresponding to his
correct salary, together with interest;
(c) 300,000 kronor as compensation for the damage caused to
his reputation;
(d) 40,002 kronor, being the two kronor he had claimed from Mr F.
and Ms E. in the proceedings at issue and 40,000 kronor
claimed on identical grounds from the Chairman of the special
university committee in another set of proceedings for having
"depicted [the applicant] as a semi-criminal";
(e) 8,554 kronor, with interest, for his costs in the private
prosecution instituted against Ms E. and Mr F.;
(f) 6,280 kronor, with interest, for his costs in the private
prosecution against the Chairman of the special university
committee.
The applicant, who received legal aid before the Court, made
no claim for costs and expenses incurred in the Strasbourg
proceedings.
42. The Court agrees with the Government that the above
claims are based on facts and assumptions related to the
applicant's allegations of having been defamed and
discriminated against, whereas the violation found in the
present case concerns only the procedure followed before the
Court of Appeal. As the Court cannot speculate on whether the
Court of Appeal would have ruled in the applicant's favour had
a public hearing been held at the appeal stage, these claims
must be rejected except in so far as they cover the
non-pecuniary damage he suffered because of the refusal to
allow him such a hearing. The Court understands that the
applicant's claims under item (c) in the preceding paragraph
cover also such non-pecuniary damage. Making an assessment on
an equitable basis as is required by Article 50 (art. 50) of
the Convention, the Court awards him 25,000 kronor under this
head.
FOR THESE REASONS, THE COURT
1. Holds unanimously that it does not have jurisdiction to
examine the complaints in Mr Helmers' application no. 8637/79;
2. Holds by eleven votes to nine that there has been a
violation of Article 6 para. 1 (art. 6-1) of the Convention as
a result of the Court of Appeal's refusal to grant the
applicant's request for an oral hearing;
3. Holds unanimously that Sweden is to pay to the applicant,
within three months, 25,000 (twenty-five thousand) Swedish
kronor in respect of non-pecuniary damage;
4. Dismisses unanimously the remainder of the applicant's
claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
29 October 1991.
Signed: John CREMONA
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
following separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Matscher, joined by
Mrs Bindschedler-Robert and Mr Gölcüklü;
(b) concurring opinion of Mr Walsh, Mr Russo, Mr Spielmann,
Mr De Meyer, Mr Loizou and Mr Bigi;
(c) dissenting opinion of Mrs Palm, joined by Mr. Thór
Vilhjálmsson, Mr Bernhardt, Mr Martens and Mr Pekkanen;
(d) dissenting opinion of Mr Morenilla.
Initialled: J. C.
Initialled: M.-A. E.
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.
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.