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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: [1991] ECHR 44, 15 EHRR 285, (1993) 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.