CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 mai 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 11826/85                       by Reinhard HELMERS                       against Sweden             The European Commission of Human Rights sitting in private on 9 May 1989, the following members being present:                 MM. J.A. FROWEIN, Acting President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 6 February 1985 by Reinhard HELMERS against Sweden and registered on 28 October 1985 under file No. 11826/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The applicant is a Swedish citizen, born in 1930.   He is a university lecturer and resides at Lund, Sweden.           The applicant has previously brought two applications before the Commission.   His first application No. 8637/79 was declared inadmissible on 10 March 1982 for non-exhaustion of domestic remedies.   The second application No. 10484/83 was declared inadmissible on 2 July 1984 in part as being substantially the same as the first application, in part as being incompatible ratione materiae with the Convention and in part since he had failed to exhaust domestic remedies.           The facts of the present case, as submitted by the parties, may be summarised as follows.           On 30 April 1979 the applicant applied for an academic post at his university.   The applicant was not appointed for this post and he claims that this was due to alleged continued discrimination on the basis of political libel.   On 14 April 1980 the applicant therefore made an appeal to the Swedish Central University Authority where he explained what kind of irregularities had in his opinion taken place. A university committee was to submit an opinion on the appeal.   In its certificate of 2 October 1980 the committee, in its summing up of the applicant's appeal, stated inter alia that the applicant had accused another colleague of having participated in the administrative campaign against the applicant and of having been rewarded for this with an appointment.   The applicant considered that he had been accused of a criminal offence in that he was alleged to have defamed an innocent colleague as corrupt and thus took steps in order to have this alleged defamation removed from the official record.   For this purpose he notified the Prosecutor General who decided, on 10 March 1981, not to pursue investigations relating to the offence which the applicant alleged had been committed by those responsible for issuing the certificate of 2 October 1980.           The applicant then instituted private prosecution proceedings in the District Court (tingsrätt) of Lund against Mr.   F and Mrs.   E who had been members of the committee responsible for the certificate and the committee's secretary, respectively.   In the District Court the applicant accused Mr.   F and Mrs.   E of defamation and false certification, thus violating Chapter 5, Section 1 and Chapter 15, Section 11 of the Penal Code (brottsbalken).   He also accused Mrs.   E of having instigated Mr.   F to commit a crime.   Finally the applicant claimed damages amounting to 1 Swedish crown in either case from Mr.   F and Mrs.   E.           The District Court of Lund held a public hearing in the case on 9 September 1981.   The applicant, Mr.   F and Mrs.   E as well as their attorney were present.   After the hearing the presiding judge informed the parties and the public that the judgment of the Court would be held accessible to the public at the Court's clerical office on 19 November 1981 at 14.00 hours.           On 19 November 1981 the judgment of the District Court was available at the clerical office.   Furthermore it was mailed to the parties on the same day.   In its judgment the Court found that the wording of the committee's certificate of 2 October 1980 was likely to expose the applicant to disrespect of others.   However, as to Mrs.   E, the Court found that she could not be held responsible for the   statement of the committee as she was not a member of it.   Furthermore, the Court found no proof for the allegation that Mrs.   E had instigated Mr.   F to commit any crimes.   As regards Mr.   F the Court found that it was not proven that he had made any untrue statement contrary to his knowledge.   Due to this outcome of the private prosecution the compensation claim was dismissed.           The applicant appealed against this judgment on points of facts and law to the Court of Appeal (hovrätt) of Skåne and Blekinge on 9 December 1981.   The grounds of appeal referred to the fact that the applicant had been prevented from ascertaining the identity of the author of the alleged libel, to the allegedly unlawful reasons given for the decision which was based on extraneous material, mistakes of fact and "the false interpolation of quotations".   The applicant furthermore requested a public hearing before the Court of Appeal.           On 16 February 1982 the Court of Appeal sent the applicant's appeal petition and other documents to Mr.   F and Mrs.   E with a direction that they should reply.   Their reply to the Court was submitted on 11 March 1982.   It was forwarded to the applicant on 12 March 1982 together with a notice that the case could be decided without an oral hearing and that he had the possibility, within 14 days, to submit his conclusions to the Court of Appeal.   The applicant submitted his observations on 16 April 1982 and these were forwarded to Mr.   F and Mrs.   E on the same day together with a notice similar to the one that had been sent to the applicant on 12 March 1982.           Between April and November 1982 the parties handed in further written submissions to the Court of Appeal.   The applicant contends that further evidence was introduced before the Court of Appeal by the defendants, allegedly contrary to the Code of Judicial Procedure (rättegångsbalken).   In particular he refers to newspaper cuttings of articles written by third persons together with the press communiqué issued by the Secretary to the Commission on 15 February 1982 in relation to his application No. 8637/79.   The applicant requested the Court of Appeal to reject this evidence.           On 23 September 1983 the Court of Appeal determined the case on the basis of the case file.   The judgment was available at the Court's clerical office on 28 November 1983 and sent to the parties the same day.           In its judgment the Court of Appeal first rejected the applicant's claim that the above-mentioned new evidence be rejected. As to the merits of the case the Court found both Mr.   F and Mrs.   E responsible for the contents of the certificate of 2 October 1980 and that this was likely to expose the applicant to disrespect of others.   However, the Court found that both Mr.   F and Mrs.   E were bound to express themselves and that they had reasonable grounds for the statements in the certificate.   Therefore, they could not be sentenced for defamation.   Neither could the charges for false certification or for instigation of defamation or false certification be sustained. Because of the dismissal of the criminal charges the claim for damages was also dismissed.           The applicant appealed against this judgment to the Supreme Court referring to several provisions of procedural law and legal writings in accordance with which he considered himself entitled to a public hearing where the judgment on the merits given by the Court of Appeal was based on new evidence, where individuals' opinions were at stake, where the first instance judge had allegedly demonstrated bias and where the applicant's claim for damages had to be assessed.           On 21 December 1984 the Supreme Court, however, refused the applicant leave to appeal against the judgment of the Court of Appeal.   COMPLAINTS           As regards the proceedings in the District Court the applicant complains that he was denied a fair hearing by an impartial tribunal and that the judgment was not pronounced publicly as required by Article 6 para. 1 of the Convention.   He maintains that the defendants were unable to fulfil their legal duty to prove the truth of their accusations and that the Court's reasons were unlawful and also inaccurate in fact.   The applicant furthermore contends that the judge showed bias and that the Court did not analyse the alleged offence under the relevant provisions of the Criminal Code.   In particular as regards the fairness of the proceedings the applicant refers to the fact that he was prevented from ascertaining the identity of the author of the alleged libellous accusation against him.           As regards the proceedings in the Court of Appeal the applicant also refers to Article 6 para. 1 of the Convention.   He maintains that, as the proceedings on the merits were "secret" since there was no public hearing at all, he cannot be considered as having had a fair and public hearing within the meaning of this provision.           As regards the proceedings in the Supreme Court the applicant refers to the fact that this Court did not hold a public hearing, nor did it pronounce its judgment publicly.   Its fairness, independence and impartiality were not therefore "detectable".   The applicant also invokes Article 6 para. 1 of the Convention in regard to these proceedings.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 6 February 1985 and registered on 28 October 1985.           On 14 March 1986 the Commission decided to adjourn the examination of the applicant's complaints concerning the conformity of the defamation proceedings with the requirements of Article 6 of the Convention and to declare a number of other complaints under Articles 9, 10, 13, 14 17 and 25 of the Convention inadmissible.   The adjourned part of the application was communicated to the respondent Government under Rule 42 (2) (b) of the Commission's Rules of Procedure without, however, requesting the Government to submit observations.           On 10 December 1986 the Commission decided to adjourn the further examination of the case pending the outcome of the Ekbatani case brought before the European Court of Human Rights.   The Court pronounced its judgment in this case on 26 May 1988 (Series A no. 134).           On 9 July 1988 the Commission decided to invite the Government to submit written observations on the admissibility and merits of the part of the application already communicated to them under Rule 42 (2) (b) of the Commission's Rules of Procedure.           The Government's observations were submitted on 20 October 1988 and the applicant's observations in reply were submitted on 15 December 1988 and 24 February 1989. THE LAW   1.       The applicant has complained of a number of procedural errors allegedly committed during the court proceedings instituted by him as private criminal prosecution for defamation and the first question to be determined is thus whether Article 6 (Art. 6) of the Convention, on which the applicant relies, applies to such proceedings.           Article 6 para. 1 (Art. 6-1) of the Convention reads as follows:   "1.    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 within a reasonable time by an independent and impartial tribunal established by law.   Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."           The Government contend primarily that the above provision is not applicable to the criminal proceedings instigated by the applicant.           Furthermore, as regards the action for damages, the Government contend that the insignificant sum claimed provides a solid basis for assuming that the significance of the action for damages was entirely symbolic.   Taken together with the fact that there was no contestation as to the sum claimed as such, this implies that no civil right was at issue.           In the alternative the Government maintain that, had the criminal charge been dismissed, the claim for damages could nevertheless have been adjudicated on the merits in the proceedings. Consequently, although the question of the outcome of the defamation charge was of vital importance to the claim for damages, it was, as the case lay before the tribunals, nevertheless a separate issue to which Article 6 (Art. 6) is not applicable.   The Government contend therefore that the application should be declared inadmissible in its entirety, or at least as regards the criminal charges, ratione materiae for falling outside the scope of the Convention.           The applicant submits that the right to have libellous statements deleted from public records, especially if they serve as a means of discrimination, is a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Such statements are the primary attack on the right of the individual, an attack on his personal integrity, and it follows from the case-law of the Convention organs that the right to a good reputation is a civil right in respect of which a remedy fulfilling the requirements of Article 6 (Art. 6) must be available.           The Commission notes that the present case does not concern a criminal charge directed against the applicant.   Article 6 (Art. 6) of the Convention would accordingly only apply if the case concerned the determination of the applicant's civil rights within the meaning of this provision.   In this respect the Commission recalls the applicant's previous application no. 8637/79 where, in its decision on admissibility of 10 March 1982, it stated that the right to enjoy a good reputation and the right to have determined before a tribunal the justification of attacks on such reputation must be considered to be civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Furthermore the Commission stated that the applicant could institute a private criminal prosecution for defamation against the persons in question if he wished to do so and it was thus satisfied that this remedy, private criminal prosecution for defamation, would be a sufficient remedy under Article 6 para. 1 (Art. 6-1) of the Convention in order to have the justification of the alleged attacks upon the applicant's professional reputation determined by a tribunal.           The Commission has found no reason to deviate from the above views, and it follows that the present case concerns a civil right and that Article 6 (Art. 6) is applicable to the proceedings instituted by the applicant.   In particular the Commission has found no room for a separation of the issues of criminal liability and civil liability of the defendants as the Government seem to suggest but, as already indicated above, the issues to be determined will be examined exclusively by the standards applicable to a civil dispute as no criminal charge against the applicant is at hand.   2.       The applicant has complained that he was denied a fair hearing by an impartial tribunal in the District Court.   He maintains that the defendants were unable to fulfil their legal duty to prove the truth of their accusations and that the Court's reasons were unlawful and also inaccurate in fact.   The applicant furthermore contends that the judge showed bias and that the Court did not analyse the alleged offence under the relevant provisions of the Penal Code.   In particular as regards the fairness of the proceedings the applicant refers to the fact that he was prevented from ascertaining the identity of the author of the alleged libellous accusation agains him.           With regard to the judicial decision of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           The Commission has not, however, found any substantiated allegations in the applicant's submissions which could lead it to conclude that the District Court proceedings were unfair or the Court partial.   Especially the Commission has not found any indications that the Court when evaluating the information submitted by the parties during the oral hearing, acted arbitrarily or that the Court in other ways reached its decision unfairly.   There is furthermore nothing to show that the Court was partial or influenced by irrelevant elements.   Viewing the proceedings in the District Court as a whole the Commission thus concludes that there is no appearance of a violation of Article 6 (Art. 6) of the Convention and it follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           As regards the proceedings in the District Court the applicant also complains that the judgment was not pronounced publicly and refers to Article 6 para. 1 (Art. 6-1) of the Convention also in this respect. The Commission considers, however, that this complaint is inadmissible for the following reasons.           It is established case-law that the words "pronounced publicly" in Article 6 para. 1 (Art. 6-1) should not be interpreted literally (see inter alia Eur.   Court H.R., Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 43, para. 91 and the references there).   In each case the final publication of the judgment under the domestic law must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6 para. 1 (Art. 6-1) in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding a right to a fair hearing.           Furthermore it is set out in the Court's judgment in Pretto and Others of 8 December 1983 (Series A no. 71, p. 12, para. 26) that the Member States of the Council of Europe have a longstanding tradition of recourse to other means besides oral reading for making public the judgments or other decisions of their courts, in particular deposit in a registry accessible to the public.           In the present case the proceedings concern private prosecution for alleged defamation where the applicant was the "injured" party.   Judgment was delivered, not by an oral reading in open court, but by keeping the judgment available to everyone as from the date of delivery at the Court's registry. The judgment was published in full and thus not limited to the operative part. In addition to keeping the judgment publicly available at the registry, the judgment was also sent to the applicant by mail.   In these circumstances the Commission finds that the object of ensuring scrutiny of the judiciary by the public with a view to safeguarding the right to a fair hearing was achieved.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       As regards the proceedings in the Court of Appeal the applicant has complained that he did not get a fair and public hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention as the proceedings on the merits were "secret" since there was no public hearing.           The Government have argued that, insofar as Article 6 (Art. 6) is applicable, the right to a hearing before the Court of Appeal should be considered in the light of the circumstances of the case in question which in this case would lead to the conclusion that the applicant's rights under Article 6 (Art. 6) were not violated.           The Commission has made a preliminary examination of the above aspect and has found that it raises serious issues as to the interpretation and application of Article 6 (Art. 6) of the Convention which are of such complexity that the determination of these issues should depend on a full examination of their merits.   It follows that this part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.   4.       The Commission has finally considered the applicant's complaint under Article 6 (Art. 6) of the Convention that he did not get a fair hearing before the Supreme Court when this Court refused to grant him leave to appeal.           In this respect the Commission recalls that the right to appeal does not feature among the rights and freedoms guaranteed by the Convention.   No provision of the Convention, therefore, requires the High Contracting Parties to grant persons under their jurisdiction an appeal to a Supreme Court.   If a High Contracting Party makes provision for such an appeal it is entitled to prescribe the rules by which this appeal shall be governed and fix the conditions under which it may be brought (cf.   No. 3775/68, Dec. 5.2.70, Collection 31 p. 16; No. 6916/75, Dec. 12.3.76, D.R. 6 p. 101).           The Commission is of the opinion that, when a Supreme Court determines, in a preliminary examination of a case, whether or not the conditions required for granting leave to appeal have been fulfilled, it is not making a decision relating to "civil rights and obligations" (cf.   No. 10515/83, Dec. 2.10.84, D.R. 40 p. 258).   It follows that Article 6 (Art. 6) of the Convention does not apply to the proceedings in which the Swedish Supreme Court, without entering on the merits, refused the applicant leave to appeal against the judgment of the Court of Appeal.           This part of the application is thus incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).           For these reasons, the Commission           DECLARES ADMISSIBLE, without prejudging the merits of the         case, the applicant's complaint that he did not get a "fair and         public hearing", within the meaning of Article 6 of the         Convention, before the Court of Appeal;             DECLARES INADMISSIBLE the remainder of the application.       Deputy Secretary to the Commission      Acting President of the Commission               (J. RAYMOND)                               (J.A. FROWEIN)