CEDH · CASELAW;REPORTS;ENG — 6 février 1990

.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 }  Application No. 11826/85   Reinhard HELMERS against SWEDEN   REPORT OF THE COMMISSION   (adopted on 6 February 1990)   TABLE OF CONTENTS                                                                 page   I.    INTRODUCTION (paras. 1-16) .............................    1        A.   The application          (paras. 2-4) .......................................    1        B.   The proceedings          (paras. 5-11) ......................................    1        C.   The present Report          (paras. 12-16) .....................................    2     II.   ESTABLISHMENT OF THE FACTS (paras. 17-36) ..............    3        A.   The particular facts of the case          (paras. 17-27) .....................................    3        B.   Relevant domestic law          (paras. 28-36) .....................................    5            a.   The Penal Code .................................    5            b.   The Code of Judicial Procedure .................    6     III. OPINION OF THE COMMISSION (paras. 37-61) ...............    9        A.   Point at issue          (para. 37) .........................................    9        B.   Applicability of Article 6 of the Convention          (paras. 38-45) .....................................    9        C.   Compliance with Article 6 para. 1 of the Convention          (paras. 46-61) .....................................   11     APPENDIX I:      History of the proceedings before                 the Commission ..............................   14   APPENDIX II:     Decision as to the admissibility of                 the application .............................   15     I.       INTRODUCTION   1.       The following is an outline of the case, submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant, Reinhard Helmers, is a German citizen, born in 1930.   He resides at Lund, Sweden.   3.       The Government of Sweden are represented by their Agent, Mr.   Hans Corell, Ambassador, Under-Secretary at the Ministry for Foreign Affairs, Stockholm.   4.       The case concerns the proceedings relating to private criminal prosecution instituted by the applicant.   In these proceedings the Court of Appeal (hovrätt) of Skåne and Blekinge considered the case without a public hearing in accordance with Chapter 51, Section 21 of the Swedish Code of Judicial Procedure (rättegångsbalken).   The applicant considers that this procedure violated his right to a public hearing in the determination of his civil rights as guaranteed by Article 6 para. 1 of the Convention.   B.       The proceedings   5.       The application was introduced on 6 February 1985 and registered on 28 October 1985.   On 14 March 1986 the Commission declared inadmissible the applicant's complaints under Articles 9, 10, 13, 14, 17 and 25 of the Convention.   The Commission furthermore decided to give notice of the application, insofar as it concerned Article 6 of the Convention, to the respondent Government in accordance with Rule 42, para. 2 (b) of its Rules of Procedure without, however, requesting the Government to submit observations.   6.       On 10 December 1986 the Commission decided to adjourn the further examination of the case pending the outcome of the case Ekbatani v.   Sweden brought before the European Court of Human Rights. The Court pronounced its judgment in this case on 26 May 1988 (Series A no. 134).   7.       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 para. 2 (b) of the Commission's Rules of Procedure.   8.       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.   9.       On 9 May 1989 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention concerning the lack of a public hearing in the Court of Appeal.   The remainder of the applicant's complaints under Article 6 of the Convention was declared inadmissible.   10.      The parties were then invited to submit any additional observations on the merits which they wished to make.   The applicant submitted additional observations on 27 July 1989, a copy of which was transmitted to the Government.   On 18 August 1989 the Government informed the Commission that they did not find it necessary to submit any further observations on the merits of the case.   11.      After declaring the case admissible the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 11 May and 8 October 1989.   The Commission now finds that there is no basis upon which such a settlement can be effected.   C.       The present Report   12.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES   13.      The text of this Report was adopted on 6 February 1990 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   14.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:           (i)    to establish the facts, and           (ii)   to state an opinion as to whether the facts found               disclose a breach by the State concerned of its               obligations under the Convention.   15.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   16.      The full text of the pleadings of the parties, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       The particular facts of the case   17.      On 30 April 1979 the applicant applied for an academic post at the University of Lund.   The applicant was not appointed for this post and he claims that this was due to an 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 by the contents of this certificate in that he was alleged to have defamed a colleague as corrupt, and the applicant thus took steps in order to have this alleged defamation removed from the official record.   For this purpose the applicant reported the circumstances to the police.   On 26 November 1980, however, the Chief District Prosecutor of Lund decided 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.   This decision was upheld by the Director of the regional public prosecution authority and subsequently by the Prosecutor General.   18.      In these circumstances the applicant decided to institute private prosecution proceedings in the District Court (tingsrätt) of Lund in accordance with Chapter 20, Section 8 of the Code of Judicial Procedure against Mr.   F. who had been a member of the committee responsible for the certificate and Mrs.   E. who had been the committee secretary.   In these proceedings the applicant accused Mr.   F. and Mrs.   E. of defamation and false certification, thus allegedly 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 for defamation amounting to one Swedish crown in each case from Mr.   F. and Mrs.   E.   19.      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 and had the opportunity to address the Court.   20.      On 19 November 1981 judgment was delivered by the District Court.   In its judgment the Court found that the wording of the committee certificate of 2 October 1980 was likely to expose the applicant to the 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.   Consequently, the applicant's private prosecution was rejected.   Due to this outcome of the private prosecution the compensation claim was dismissed.   21.      The applicant appealed against the judgment to the Court of Appeal of Skåne and Blekinge on 9 December 1981.   The grounds of appeal refer to the fact that the applicant had been prevented from ascertaining the identity of the author of the alleged libel as set out in the certificate of 2 October 1980.   Furthermore the grounds of appeal refer 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.   22.      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.   23.      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.   In particular he refers to four newspaper cuttings of articles written by third persons together with the press communiqué issued by the Secretary to the Commission on 15 March 1982, all relating to the applicant's previous application to the Commission, no. 8637/79, which was declared inadmissible on 10 March 1982.   The applicant requested the Court of Appeal to reject this evidence.   24.      On 23 September 1983 the Court of Appeal determined the case on the basis of the case file and without a public hearing.   The judgment was delivered on 28 November 1983.   25.      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 the disrespect of others. However, the Court found that both Mr.   F. and Mrs.   E. were bound to express themselves and that they had 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 acquittal of the criminal charges the claim for damages was dismissed.   26.      The applicant appealed against this judgment to the Supreme Court (Högsta domstolen) 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.   27.      On 21 December 1984 the Supreme Court refused the applicant leave to appeal.   B.       Relevant domestic law   a.       The Penal Code   28.      (Swedish)   "5 kap. 1 §:   Den som utpekar någon såsom brottslig eller klandervärd i sitt levnadssätt eller eljest lämnar uppgift som är ägnad att utsätta denne för andras missaktning, dömes för 'förtal' till böter.   Var han skyldig att uttala sig eller var det eljest med hänsyn till omständigheterna försvarligt att lämna uppgift i saken, och visar han att uppgiften var sann eller att han hade skälig grund för den, skall ej dömas till ansvar."   (Translation)   "Chapter 5, Section 1:   A person who points out someone as being a criminal or as reproachable for his mode of life, or otherwise gives information likely to expose him to the disrespect of others, shall be sentenced for defamation to pay a fine.   If he was in duty bound to express himself or if, considering the circumstances, the giving of information was defensible, and if he proved that the information was true or that he had reasonable grounds for it, he shall not be held responsible."   29.      (Swedish)   "15 kap. 11 §:   Lämnar någon i intyg eller annan urkund osann uppgift om vem han är eller om annat än egna angelägenheter eller upprättar någon för skens skull urkund rörande rättshandling, dömes, om åtgärden innebär fara i bevishänseende, för 'osant intygande' till böter eller fängelse i högst sex månader.   År brottet med hänsyn till att det innefattar missbruk av tjänsteställning eller eljest att anse som grovt, skall dömas till fängelse i högst två år."   (Translation)   "Chapter 15, Section 11:   If, in a certificate or other document, a person gives untrue information about his identity or about other than his own concerns, or if a person for the sake of appearances prepares a document concerning a judicial act, he shall, if the action jeopardises proof, be sentenced for false certification to pay a fine or to imprisonment for at most six months.   If the crime is considered grave because it involves misuse of official position or for other reasons, imprisonment for at most two years shall be imposed." 30.      (Swedish)   "23 kap. 4 §:   Ansvar som i denna balk är stadgat för viss gärning skall ådömas ej blott den som utfört gärningen utan jämväl annan som främjat denna med råd eller dåd.   Den som ej är att anse såsom gärningsman dömes, om han förmått annan till utförandet, för anstiftan av brottet och eljest medhjälp därtill ..."   (Translation)   "Chapter 23, Section 4:   Punishment provided for in this Code shall be imposed not only on the person who committed the offence but also on anyone who furthered it by advice or deed.   A person who is not regarded as the offender shall, if he induced another to commit the offence, be punished for instigation of the crime or for being an accessory to the crime ..."   b.       The Code of Judicial Procedure   31.      (Swedish)   "20 kap. 8 §:   Målsäganden må ej väcka åtal för brott, som hör under allmänt åtal, med mindre han angivit brottet och åklagaren beslutat, att åtal ej skall äga rum ..."   (Translation)   "Chapter 20, Section 8:   The injured person may not institute criminal proceedings for offences which fall under public prosecution unless he has reported the offence and the prosecutor has decided not to prosecute ..."   32.      (Swedish)   "22 kap. 1 §:   Talan mot den misstänkte eller annan om enskilt anspråk i anledning av brott må föras i samband med åtal för brottet.   Upptages ej anspråket i samband med åtalet, skall talan föras i den för tvistemål stadgade ordningen."   (Translation)   "Chapter 22, Section 1:   A private claim against the suspect or a third person in consequence of an offence may be consolidated with the prosecution of the offence.   When the private claim is not entertained in conjunction with the prosecution, the claim shall be instituted in the manner prescribed for civil actions."   33.      (Swedish)   "22 kap. 7 §:   Föres talan om enskilt anspråk i anledning av brott i samband med åtalet och finnes, att den åtalade gärningen icke är straffbar, må talan dock prövas i målet."   (Translation)   "Chapter 22, Section 7:   If a private claim based upon an offence is consolidated with the prosecution and it is found that the act charged is not punishable, the private claim may nonetheless be adjudicated on the merits in the proceedings."   34.      (Swedish)   "51 kap. 21 §:   Hovrätten äge utan huvudförhandling företaga mål till avgörande, om talan av åklagaren föres allenast till den tilltalades förmån eller talan, som föres av den tilltalade, biträtts av motparten.   Har underrätten frikänt den tilltalade eller eftergivit påföljd för brottet eller funnit honom vara på grund av själslig abnormitet fri från påföljd eller dömt honom till böter eller fällt honom till vite och förekommer ej anledning till ådömande av svårare straff än nu sagts eller att ådöma annan påföljd, må målet avgöras utan huvudförhandling ..." *   (Translation)   "Chapter 51, Section 21:   The Court of Appeal may determine the case without a main 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 and there is no reason to impose a more severe sanction than those mentioned above or to impose any other sanction ..." *   35.      (Swedish)   "51 kap. 23 §:   Har vid huvudförhandlingen i underrätten rörande viss omständighet vittne eller sakkunning hörts inför rätten eller syn å stället hållits och beror avgörandet även i hovrätten av tilltron till den bevisningen, må ändring i underrättens dom i denna del ej ske annat än till den tilltalades förmån, med mindre beviset upptagits ånyo vid huvudförhandlingen i hovrätten eller ock synnerliga skäl föreligga, att dess värde är annat, än underrätten antagit."   (Translation)   "Chapter 51, Section 23:   If testimony of a witness or an expert was given at the main hearing in the lower court with respect to a particular circumstance, or if an inspection was made during the main hearing in the lower court, and the evaluation of such evidence is decisive for the outcome on appeal, the relevant part of the lower court judgment may not be changed by the Court of Appeal, except for the benefit of the defendant, unless the Court of Appeal takes the evidence again at a main hearing, or if extraordinary reasons justify the conclusion that the value of the evidence is other than that attached to it by the lower court."   ___________   *        This Section has subsequently been amended from 1 July 1984.         The amendment is, however, not relevant to the present case.     36.      (Swedish)   "51 kap. 25 §:   Ej må hovrätten i anledning av den tilltalades talan eller talan, som av åklagare föres till hans förmån, döma till brottspåföljd, som är att anse såsom svårare än den, vartill underrätten dömt.   Har den tilltalade av underrätten dömts till fängelse, äge hovrätten förordna om villkorlig dom, skyddstillsyn eller överlämnande till särskild vård, så ock jämte villkorlig dom, skyddstillsyn eller överlämnande till vård inom socialtjänsten döma till böter ävensom jämte skyddstillsyn döma till fängelse enligt 28 kap. 3 § brottsbalken.   Har underrätten meddelat förordnande som nu sagts, äge hovrätten döma till annan påföljd."   (Translation)   "Chapter 51, Section 25:   In an appeal lodged by the accused, or by the prosecutor for the benefit of the accused, the Court of Appeal may not sentence the accused to a criminal sanction more severe than the one imposed by the lower court.   If the accused were sentenced by the lower court to imprisonment, the Court of Appeal may order suspension of sentence, probation or placing under special care; in addition to suspension of sentence and to probation or placing under care within the social service, the Court of Appeal may impose a fine or probation coupled with imprisonment pursuant to Chapter 28, Section 3 of the Penal Code.   When the lower court has ordered a sanction of the kind referred to above, the Court of Appeal may impose a different kind of sanction."   III.     OPINION OF THE COMMISSION   A.       Point at issue   37.      The issue to be determined is whether the fact that there was no public hearing in the proceedings before the Court of Appeal when it determined the applicant's appeal against the judgment of the District Court violates his right to a "fair and public hearing" as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.   B.       Applicability of Article 6 (Art. 6) of the Convention   38.      Article 6 para. 1 (Art. 6-1) reads as follows:   "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."   39.      The Government contend primarily that the above provision is not applicable to the criminal proceedings instituted 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.   40.      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 procedure fulfilling the requirements of Article 6 must be available.   41.      The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention applies only to the determination of an applicant's "civil rights and obligations or of any criminal charge against him". As the applicant was not charged with having committed any criminal offence Article 6 para. 1 (Art. 6-1) would only be applicable in the present case if there was a dispute over a "right" of the applicant and if this "right" was of a "civil" nature.   42.      The Commission recalls that subsequent to the issuing of the certificate of 2 October 1980 the applicant considered that he had been accused of having committed a criminal offence in that he allegedly had defamed a colleague as corrupt.   The applicant considered such allegations as libel but as the public prosecutor refused to take any action the applicant instituted private criminal prosecution, inter alia charging Mr.   F. and Mrs.   E. with defamation. He also introduced in the same proceedings a civil claim against Mr.   F. and Mrs.   E.   In these circumstances the Commission is satisfied that there existed a veritable dispute in the case.   The applicant alleged that he had been the subject of libel and Mr.   F. and Mrs.   E. denied these allegations.   43.      The Commission also finds that the dispute concerned a "civil right".   This follows from the Commission's case-law according to which the right to enjoy a good reputation is a "civil right" (cf. No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91 and No. 8366/78, Dec. 8.3.79, D.R. 16 p. 196).   This view was accepted by the European Court of Human Rights in its judgment in the Golder case (Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18).   In addition, 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.   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.   44.      Accordingly, since the dispute between the parties concerned a "civil right" the applicant was entitled to have the case heard by a "tribunal" satisfying the conditions laid down in Article 6 para. 1 (Art. 6-1) of the Convention.   According to the case-law of the Commission and the European Court of Human Rights a State which institutes courts of appeal is required to ensure that persons amenable to the law shall enjoy before these Courts the fundamental guarantees contained in Article 6 (Art. 6) of the Convention.   The manner of application of this provision depends, however, on the circumstances of the case (cf. for example Eur. Court H.R., Axen judgment of 8 December 1983, Series A no. 72, p. 12, para. 27 with further references).   45.      It follows that Article 6 (Art. 6) applied, not only to the proceedings in the District Court but also to the proceedings in the Court of Appeal.   C.       Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   46.      It is established that the applicant had the opportunity to present his case in person in the District Court at a public hearing, in proceedings which were not at variance with Article 6 (Art. 6) of the Convention.   It is also established that the applicant did not have the same opportunity in the Court of Appeal as there was no public hearing.   As already indicated above it follows, however, from the case-law of the Commission and the European Court of Human Rights that the manner of application of Article 6 (Art. 6) to the proceedings before courts of appeal depends on the special features of the proceedings involved (cf. the above-mentioned Axen judgment p. 12, para. 27). The question before the Commission is therefore whether a departure from the principle that there should be a public hearing could, in regard to the proceedings before the Court of Appeal, be justified in the circumstances of the present case by the special features of the domestic proceedings viewed as a whole.   47.      In deciding this question, the Commission must have regard to the nature of the national appeal system, the scope of the Court of Appeal's powers and the manner in which the applicant's interests were actually presented and protected before the Court of Appeal (cf. Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A no. 134, p. 13, para. 28).   48.      As regards the nature of the national appeal system the Commission recalls that it has, as well as the Court of Human Rights, on a number of occasions held that, provided that there has been a public hearing at first instance, the absence of a public hearing before a second or third instance may be justified in certain circumstances.   The Commission refers in this respect to the above-mentioned Axen case (p. 12, para. 28) and the Sutter case (Eur. Court H.R., Sutter judgment of 22 February 1984, Series A no. 74, p. 13, para. 30).   In both cases the Court found no breach of Article 6 (Art. 6). In the Axen case the reason was that the first instance court and the appeal court had heard the case in public and the Federal Court of Justice, which determined solely issues of law, could - short of holding hearings - only dismiss the appeal on points of law.   In the Sutter case the Court of Cassation had not ruled on the merits of the case and had dismissed Mr. Sutter's appeal in a judgment devoted solely to the interpretation of the legal provisions concerned.   49.      The Commission had already, in earlier cases, acknowledged that the absence of an oral procedure before appeal courts does not constitute a violation of Article 6 para. 1 (Art. 6-1) in certain circumstances.    For example, it decided so in the case of the dismissal of appeals on points of law in criminal proceedings by the German Federal Court (Bundesgerichtshof) (No. 599/59, Dec. 14.12.61, Collection 8 p. 12), and by the Court of Appeal (Kammergericht) in Berlin (No. 1169/61, Dec. 24.9.63, Yearbook 6 p. 520), and of the dismissal by the Swiss Federal Court of an appeal (recours en réforme) (No. 7211/75, Dec. 6.10.76, D.R. 7 p. 104).   50.      The Commission also recalls its partial decision on the admissibility of Application No. 9315/81 (Dec. 15.7.83, D.R. 34 p. 96), where it found that there was no overriding right for an appellant to be present before an appeal court in a criminal case where there was no power for this court to increase the appellant's sentence.   The Commission concluded that the reasons given for the Appeal Court's rejection of the applicant's appeal were based on objective conclusions, which were derived from an examination of the case-file which was before it, and did not involve a direct assessment of the applicant's personality.   In these circumstances and having regard to the fact that he was represented in the proceedings by counsel, the applicant's right to a fair determination of the criminal charge against him was not prejudiced by his absence from the proceedings before the Appeal Court.   51.      The Commission and the Court of Human Rights have on the other hand held that where a court of appeal is called upon to examine a case as to the facts and the law and has to make a full assessment of the question of guilt and innocence, it cannot, as a matter of fair trial, determine such questions without a direct assessment of the evidence given in person by the accused, who claims that he has not committed the act alleged to constitute a criminal offence, and the complainant (cf. the above-mentioned Ekbatani judgment, p. 14, para. 32).   52.      In the present case the Commission recalls that under Swedish law the case was dealt with by the national courts as a "criminal" case, the applicant assuming the role of prosecutor.   Furthermore, the Commission recalls that there was indeed a dispute as to whether the act committed constituted a criminal offence.   The "civil" claim for damages was based on the allegation that Mr.   F. and Mrs.   E. were guilty of defamation and the outcome in regard to the claim for damages depended on the outcome of the defamation charges.   Under the Swedish Code of Judicial Procedure, the nature of the appeal was in principle a full appeal where the Court of Appeal was called upon to examine the case as to the facts and the law.   53.      As far as the scope of the Court of Appeal's powers are concerned these are set out in Chapter 51, Section 21 of the Code of Judicial Procedure then in force.   It follows from this provision that if a person has been acquitted by the District Court, or has been sentenced by the District Court to a fine, and there appears to be no reason for the Court of Appeal to sentence this person to a more severe sentence than a fine, the Court of Appeal is not obliged to hold a public oral hearing regarding the appeal but can base its judgment exclusively on the case-file and the written submissions of the parties.   It is an optional procedure and the Court of Appeal is not supposed to resort to it if a hearing can be expected to give the Court a better basis for deciding on the appeal.   54.      The Commission also notes that under Chapter 51, Section 21 the Court of Appeal may, without a public hearing, convict a person who has been acquitted by the District Court and may, without a public hearing, impose a higher fine on the sentenced person than that which was imposed by the District Court.   Since the applicant in his capacity as "private prosecutor" appealed against the judgment of the District Court the Court of Appeal could accordingly convict and sentence Mr.   F. and Mrs.   E. regardless of the District Court judgment and regardless of the prohibition in Chapter 51, Section 25 of the Code of Judicial Procedure against reformatio in pejus.   55.      The respondent Government have submitted that the latitude of the Court of Appeal was limited by the demands made by the parties. The Commission finds, however, that such "limitation" is quite a normal feature as regards civil claims and cannot therefore constitute a reason for deviating from the guarantee of a public hearing as secured by Article 6 para. 1 (Art. 6-1) of the Convention.   56.      Finally as regards the manner in which the applicant's interests were actually presented and protected before the Court of Appeal the Government have submitted that the publicity requirement was fulfilled in that, in principle, all official documents were public and that anyone at any time could visit the Court of Appeal and see all the documents in the case.   Furthermore they submit that the parties had unlimited possibilities to develop and plead the case in writing and that the examination of the case in question was in fact limited to the application of the law where a hearing would not have added anything of value to the case.   57.      It is true that both parties in the present case had equal opportunities to present their case in writing.   However, the Court of Appeal was called upon to examine the case as to the facts and the law.   It had to make a full assessment of the question of guilt or innocence, a question which in the circumstance of the present case was of vital importance to the determination of the applicant's civil right at issue.   This the Court of Appeal could determine without any limitations.   58.      Furthermore the Court of Appeal did not base its examination exclusively on the District Court file.   Both parties were given the opportunity to submit further written observations and indeed to submit new evidence which, in spite of the applicant's protest, was accepted by the Court.   59.      As the Commission and the European Court of Human Rights have held earlier, 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; it 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 (cf. the above-mentioned Axen judgment, p. 12, para. 25).   60.      Thus, where a power as the one conferred on the Court of Appeal is exercised in proceedings which form part of the determination of the applicant's civil right, the Commission finds that Article 6 para. 1 (Art. 6-1) of the Convention requires that he should be allowed a public hearing and to be present at such a hearing if he so    requests.   However, since he did not, regardless of his request, obtain such a hearing Article 6 para. 1 (Art. 6-1) has been violated.           Conclusion   61.      The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     Secretary to the Commission                President of the Commission               (H.C. KRÜGER)                              (C.A. NØRGAARD)   APPENDIX I   HISTORY OF THE PROCEEDINGS   Date                             Item ______________________________________________________________________   6 February 1985                  Introduction of the application   28 October 1985                  Registration of the application   Examination of admissibility   14 March 1986                    Commission's decision to declare part                                 of the application inadmissible and                                 to give notice of the application,                                 insofar as it concerned Article 6                                 of the Convention, to the                                 respondent Government   10 December 1986                 Commission's decision to adjourn the                                 further examination of the case     9 July 1988                      Commission's decision to invite the                                 Government to submit observations on                                 admissibility and merits of the                                 application   20 October 1988                  Submission of the Government's                                 observations   15 December 1988) 24 February 1989)                Submission of the applicant's                                 observations   9 May 1989                       Commission's decision to declare                                 part of the application admissible   Examination of the merits   27 July 1989                     Submission of the applicant's                                 observations on the merits   7 October 1989                   Consideration of the state of                                 proceedings   6 February 1990                  Commission's deliberations on the                                 merits, final votes and adoption           &#