CEDH · CASELAW;REPORTS;ENG — 15 mars 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. 11274/84                              Jan-Åke ANDERSSON                                   against                                     SWEDEN                             REPORT OF THE COMMISSION                            (adopted on 15 March 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. 17-30) ...............    3        A.   The particular facts of the case          (paras. 17-25) ......................................    3        B.   Relevant domestic law          (paras. 26-30) ......................................    5     III. OPINION OF THE COMMISSION (paras. 31-51).................    7        A.   Point at issue          (para. 31) ..........................................    7        B.   Applicability of Article 6 para. 1 of the Convention          (paras. 32-35) ......................................    7        C.   Compliance with Article 6 para. 1 of the Convention          (paras. 36-51) ......................................    8   Dissenting opinion of MM. H.G. Schermers and H. Danelius .....   12     APPENDIX I:      HISTORY OF THE PROCEEDINGS ...................   14     APPENDIX II:     DECISION AS TO THE ADMISSIBILITY .............   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 is a Swedish citizen, born in 1944.   He resides at Torsås, Sweden.   Before the Commission the applicant is represented by Mr.   Christer Arnewid, a lawyer practising in Göteborg.   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 appeal proceedings in the Court of Appeal (hovrätt) of Skåne and Blekinge in which the applicant's appeal against his conviction in a criminal case was dealt with 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 as guaranteed by Article 6 para. 1 of the Convention.   B.       The proceedings   5.       The application was introduced on 16 October 1984 and registered on 3 December 1984.   On 7 October 1985 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government without, however, requesting the Government to submit observations for the time being.   The Commission furthermore decided to adjourn the 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).   6.       On 9 July 1988 the Commission decided to invite the Government to submit written observations on the admissibility and merits of the application.   7.       The Government's observations were submitted on 25 October 1988 and the applicant's observations in reply were submitted on 27 April 1989.   8.       Legal aid under the Addendum to the Commission's Rules of Procedure was granted to the applicant on 3 November 1988.   9.       On 10 July 1989 the Commission decided to declare admissible the applicant's complaint under Article 6 para. 1 of the Convention which concerned the lack of a public hearing in the Court of Appeal. The remainder of the applicant's complaints was declared inadmissible.   10.      The parties were then invited to submit any additional observations on the merits which they wished to make.   On 4 September 1989 the Government informed the Commission that they did not intend to submit further observations on the merits of the case. No further observations were received from the applicant.   11.      After declaring the case admissible the Commission, acting in accordance with Article 28 para. 1 (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 25 July and 4 September 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               G. SPERDUTI               E. BUSUTTIL               A.S. GÖZÜBÜYÜK               A. WEITZEL               J.-C. SOYER               H.G. SCHERMERS               H. DANELIUS               G. BATLINER               H. VANDENBERGHE         Mrs.   G.H. THUNE         Sir.   Basil HALL         MM.    F. MARTINEZ               C.L. ROZAKIS         Mrs.   J. LIDDY         Mr.    L. LOUCAIDES   13.      The text of this Report was adopted on 15 March 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 26 February 1983 the applicant was stopped by the police while driving a tractor on a highway (motortrafikled) restricted to certain types of vehicles, not including a tractor.   The applicant was charged with a violation of Sections 139 and 144 of the Traffic Ordinance (vägtrafikkungörelsen) but, although he admitted the factual circumstances, he contested having violated any laws.   18.      The case was therefore brought before the District Court of Ronneby (Ronneby tingsrätt).   Before this Court the applicant requested the hearing of one of the policemen who had stopped him as well as the production of the official weather reports concerning the period in question.   Finally he asked the Court to appoint a defence counsel under the legal aid system since he was without sufficient means.   19.      On 8 June 1983 the Court refused to appoint counsel, the reason being that the case was very simple and that the applicant could not be regarded as being in need of legal assistance in order to be able to defend himself.   The applicant appealed against this decision to the Court of Appeal referring to the right to a fair trial in the light of the fact that his "opponent" was a professional prosecutor.   On 20 June 1983 the Court of Appeal upheld the District Court's decision.   This decision was not subject to appeal.   20.      The case against the applicant was heard by the District Court on 21 September 1983.   The applicant was heard as well as the policeman named by the applicant.   The Court, however, did not obtain the official weather reports.   After hearing the parties and after evaluating certain written evidence the District Court found the applicant guilty of the charge brought against him and sentenced him to pay a fine of 400 Swedish crowns.   In its judgment the Court stated as follows:           (translation submitted by the Government)   "(The applicant) has contested criminal liability and has made the following statement:   He was on his way from Hässleholm to Torsås driving a tractor he had just bought.   He had travelled with his father to Hässleholm that morning and they had then, i.a., travelled the same distance but in the opposite direction.   The mist had been very dense already in the morning and (the applicant) made no special observations as regards the road during the trip.   He is unaware of the concept 'motortrafikled'.   When he arrived on the 'motortrafikled' west of Karlshamn, it was so misty that he saw no road signs that called for his attention.   He was therefore unaware of the character of the road he was driving on and even if he had noticed a road sign indicating 'motortrafikled' he would not have known what restrictions this would imply as regards traffic with certain vehicles. Police officer Roger Bjurbrandt has been heard as a witness but has not given any substantive information except that the weather was normal in the area of Ronneby without any signs of mist.   (The applicant) - who was driving in the manner alleged by the public prosecutor - drove a long distance by tractor and should therefore have paid particular attention to the rules applicable as regards the driving of such a vehicle. The fact that the weather was misty does not relieve him from his obligations as a driver.   He shall therefore be convicted in accordance with the charge against him."   21.      The applicant appealed against this judgment to the Court of Appeal of Skåne and Blekinge.   He maintained inter alia that the proceedings before the District Court had been "unbalanced" and that the judge had interrupted him over and over again, preventing him from making his statement as he found appropriate.   He also complained of the fine imposed.   22.      In reply to this appeal the prosecution submitted a written statement of 31 October 1983 in which it was maintained that the applicant had violated the Traffic Ordinance.   The prosecution refrained from requesting the hearing of the policeman as a witness and indicated that the case could be dealt with without a hearing before the Court of Appeal.   A copy of this statement was sent to the applicant by the Court of Appeal together with a covering letter of 2 November 1983 stating that the case could be dealt with without a hearing and that the applicant had two weeks to submit his statement in reply to the observations made by the prosecution.   In his written observations of 9 November 1983 the applicant stated inter alia that it would be of great interest to hear the policeman as a witness again and to examine the weather reports.   He furthermore requested that the hearing be held at Karlskrona and preferably not on a Thursday. Finally he requested free legal assistance since he needed it and could not afford to pay for counsel himself.   The Court of Appeal did not accede to the applicant's requests.   23.      The Court of Appeal gave judgment in the case on 10 February 1984.   Before this Court there was no public hearing and neither of the parties appeared before the Court.   In its judgment, which was not delivered in public but sent to the parties, the Court stated:           (translation)           "Court of Appeal judgment           The Court of Appeal upholds the District Court judgment.           The Court of Appeal rejects (the applicant's) request for         an official defence counsel.           Claims before the Court of Appeal.           (The applicant) has requested that the charges against         him be rejected.   The prosecution objects to a change.           (The applicant) has furthermore requested the         appointment of an official defence counsel.           The Court of Appeal's reasons           (The applicant's) rights before the Court of Appeal         can be secured without the appointment of an official         defence counsel.         From the photos submitted, it appears that the character as         a 'motortrafikled' of (the road in question) did appear from         appropriate and visible road signs at Stensnäs.   For this         reason and since (the applicant) nevertheless drove         the tractor on (the road) from Stensnäs to Sörby he         committed the offence with which he was charged by         the prosecution."   24.      The applicant subsequently asked the Supreme Court (Högsta domstolen) for leave to appeal against this judgment.   In his request he stated:           (translation)           "The proceedings before the Court of Appeal were of a very         unbalanced character.   The prosecution was free to submit         its arguments against the accused whereas the accused was         treated in a degrading manner.   The proceedings before the         Court of Appeal did not comply with what is stipulated in         the human rights and freedoms.   Since a judgment in Sweden         may be held against a person for the rest of his life it         would appear to be of great importance that the court         proceedings take place in a balanced manner and that every         person is treated equally."   25.      The Supreme Court refused leave to appeal on 26 April 1984.   B.       Relevant domestic law   26.      The relevant penal provisions of the traffic legislation are found in the 1972 Traffic Ordinance.   From Sections 139 and 144 it follows that tractors are not allowed on certain types of highways, i.a. "motortrafikled".   Persons violating these rules are, according to Section 164, liable to pay a fine, at most 1.000 Swedish crowns.   27.      Provisions regulating traffic signs are found in the 1978 Traffic Sign Ordinance (vägmärkesförordningen).   In Section 24 sign 1.4.3 is featured.   This sign indicates where the "motortrafikled" begins.   The same sign may also, but need not, be used as an introductory sign together with another sign indicating when the "motortrafikled" begins.   28.      The Code of Judicial Procedure in its Chapter 51, contains rules about appeals in criminal cases.   Such an appeal shall be brought before a court of appeal whose review of the case covers both facts and law.   29.      Chapter 51, Section 21 of the Code of Judicial Procedure concerning the proceedings before the Court of Appeal read at the relevant time:*           (Swedish)   "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.   _______________   *        This Section has subsequently been amended as from         1 July 1984.   The amendment is, however, not relevant         to the present case.     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)   "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 ..."   30.      Chapter 51, Section 25 concerning reformatio in pejus reads:           (Swedish)   "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)   "Upon an appeal lodged by the accused, or by the prosecutor for the benefit of the accused, the Court of Appeal may not sentence the accused to a criminal sanction more severe than the one imposed by the lower court.   If the accused was sentenced by the lower court to imprisonment, the Court of Appeal may order suspension of sentence, probation or placing under special care; in addition to suspension of sentence and to probation or placing under care within the social service, the Court of Appeal may impose a fine or probation coupled with imprisonment, pursuant to Chapter 28, Section 3 of the Penal Code.   When the lower court has ordered a sanction of the kind referred to above, the Court of Appeal may impose a different kind of sanction."   III.     OPINION OF THE COMMISSION   A.       Point at issue   31.      The issue to be determined in the present case is whether the proceedings before the Court of Appeal when it examined the applicant's appeal against the judgment of the District Court violated his right to a "fair and public hearing" as guaranteed by Article 6 para. 1 of the Convention.   B.       Applicability of Article 6 para. 1 (Art. 6-1) of the Convention   32.      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."   33.      It is not in dispute between the parties that the above provision applies to the appeal proceedings in question.   This also follows from the case-law of the Commission and the European Court of Human Rights according to which 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 (see notably Eur. Court H.R. Delcourt judgment of 17 January 1970, Series A no. 11, p. 13, para. 25, and Eur. Court H.R., Axen judgment of 8 December 1983, Series A no. 72, p. 12, para. 27).   Accordingly, although Article 6 (Art. 6) does not guarantee an appeal in criminal proceedings, the guarantees of Article 6 (Art. 6) continue to apply to the appeal proceedings where the opportunity to lodge an appeal in regard to the determination of a criminal charge is provided for under domestic law, since these proceedings form part of the whole proceedings which determine the criminal charge at issue.   34.      Furthermore, leaving aside the question of the authority of Protocol No. 7 to the Convention which had not yet entered into force at the time when the circumstances of the present case were examined in the domestic courts, the Commission recalls that the European Court of Human Rights has found no warrant for the view that the addition of this Protocol was intended to limit, at the appellate level, the scope of the guarantees contained in Article 6 (Art. 6) of the Convention (cf. Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A no. 134, p. 12, para. 26).   35.      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   36.      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.   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 particular circumstances of the case (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.   37.      In determining 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. above-mentioned Ekbatani judgment p. 13, para. 28).   38.      As regards the nature of the national appeal system the Commission recalls that it has, as well as the European 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 judgment (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 determines 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.   39.      The Commission had, in earlier cases, acknowledged that the absence of an oral procedure before appeal courts does not necessarily constitute a violation of Article 6 para. 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 (No. 7211/75, Dec. 6.10.76, D.R. 7 p. 104).   40.      The Commission and the European 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 (cf. the above-mentioned Ekbatani judgment, p. 14, para. 32).   41.      In the present case the Commission recalls that under Swedish law the case against the applicant was dealt with by the national courts as a "criminal" case, the applicant being the accused person. Furthermore, although the applicant did not dispute the factual circumstances of the case, he contested having violated any laws. Under the Swedish Code of Judicial Procedure the nature of the appeal was accordingly in principle a full appeal where the Court of Appeal was called upon to examine the case both as to the facts and the law.   42.      The scope of the Court of Appeal's powers are set out in Chapter 51, Section 21 of the Code of Judicial Procedure.   It follows from this provision in its wording at the relevant time 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 an 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.   43.      The Commission 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.   However, in the present case no such question of a possible worsening of the applicant's situation arose, or could arise, since only the applicant appealed against the judgment of the District Court, and in view of the prohibition in Chapter 51, Section 25 of the Code of Judicial Procedure against reformatio in pejus, the Court of Appeal could not, in the absence of an appeal by the Public Prosecutor, increase the sentence imposed on the applicant by the District Court.   44.      The situation in the present case was accordingly that the Court of Appeal could decide to uphold the judgment pronounced by the District Court, or decide in the applicant's favour either by reducing the fine or by acquitting him.   45.      The Government have acknowledged that the proceedings before the Court of Appeal in the present case as well as in the above-mentioned Ekbatani case involved both questions of fact and questions of law.   They submit, however, that Swedish procedural law does not distinguish between questions of fact and questions of law and there are no rules restricting the scope of the proceedings in the courts of appeal in this respect.   This fact, however, does not automatically lead to the conclusion that there has been a violation of the Convention.   In the Government's view account ought to be taken, for example of the type of offence, to what extent the facts adduced are denied and whether they are relevant or not.   Furthermore the fact that Swedish courts of appeal have the power to review also the facts of the case should not be looked upon as a disadvantage for the accused.   The need for the personal appearance of the accused, and for an oral hearing, should be adjudged according to the way the case lies before the court in question.   The present case, the Government submit, is different from the above-mentioned Ekbatani case in that the applicant admitted the facts.   The main task for the Court of Appeal was accordingly to establish whether the act committed was punishable or not or whether the applicant should be exonerated from criminal liability.   In practice the task of the Court of Appeal was restricted to an interpretation of the legal rules involved.   An oral hearing where the applicant was present would not have added anything relevant to these proceedings, nor would a rehearing of the witness.   46.      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 principle of equality of arms was respected in that the applicant as well as the Public Prosecutor had the right to submit pleadings in writing and neither appeared in person before the Court of Appeal.   47.      The Commission notes 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 and was not in doing so limited in its competence in any way.   The limitations on the Court of Appeal's powers as a result of the prohibition against reformatio in pejus related only to sentencing and cannot therefore be considered to be relevant to the decisive question in the determination of the criminal charge, i.e. the question of guilt or innocence.   Furthermore, when determining this question 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 did so.   48.      The right of the accused to be present when a court determines whether or not he is to be found guilty of the criminal charges brought against him, and to be able to present to the court what he finds is of importance in this respect, is not only an additional guarantee that an endeavour will be made to establish the truth, but it also helps to ensure that the accused is satisfied that his case has been determined by a tribunal, the independence and impartiality of which he could verify.   Thereby justice is from the accused's point of view seen to be done.   Furthermore, the object and purpose of Article 6 (Art. 6) taken as a whole require that a person charged with a criminal offence has a right to take part in a hearing. Sub-paragraphs (c) and   (d) of paragraph 3 (Art. 6-3-c-d) guarantee the right to defend oneself in person and   to examine or have examined witnesses and such rights cannot be exercised without the accused being present (cf. also Eur. Court   H.R., Colozza and Rubinat judgment of 12 February 1985, Series A no. 89, p. 14, para. 27).   49.      The guarantee of a fair and public hearing in Article 6 para. 1 (Art. 6-1) of the Convention is one of the fundamental principles of any democratic society.   By rendering the administration of justice visible publicity contributes to the maintenance of confidence in the administration of justice.   The public nature of the hearings, where issues of guilt and innocence are determined, ensures that the public is duly informed and that the legal process is publicly observable.   50.      Thus, where a power as the one conferred on the Court of Appeal, as described above in para. 47, is exercised in proceedings which form a normal part of the determination of the criminal charge brought against the applicant, the Commission finds that Article 6 para. 1 (Art. 6-1) of the Convention requires that he should be allowed a hearing and to be present at such a hearing if he so requests.   Since he did not, however, obtain such a hearing Article 6 para. 1 (Art. 6-1) has been violated.   In these circumstances the Commission does not find it necessary to determine whether other elements of the proceedings in the Court of Appeal were at variance with this provision.   Conclusion   51.      The Commission concludes, by seventeen votes to two, 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   Dissenting opinion of MM. H.G. Schermers and H. Danelius           It follows from the case-law of the European Court of Human Rights that the absence of a public hearing before a court of appeal may be justified by the special features of the appeal proceedings. Thus, the Court has accepted that Article 6 para. 1 of the Convention did not require a public hearing in leave-to-appeal proceedings (Monnell and Morris judgment, Series A no. 115, p. 22, para. 58) and in proceedings involving only questions of law (Sutter judgment, Series A no. 74, p. 13, para. 30).           In the Ekbatani case, which concerned the question whether a public hearing had been required before a Swedish Court of Appeal, the European Court, after a detailed examination of the nature of the case and the powers of the Court of Appeal, concluded that in that case there had been no special features to justify a denial of a public hearing and of the applicant's right to be heard in person (Ekbatani judgment, Series A no. 134, p. 14, paras. 32-33).           In our opinion, however, the present case is so different from the Ekbatani case as to justify a different conclusion.   Our reasoning is as follows.           The applicant Ekbatani was charged with having threatened a civil servant, who was the complainant in the case.   Ekbatani denied the facts upon which the charge was based and presented a different version of what had happened.   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.   The Court of Appeal had to consider whether the evidence given by the complainant was sufficiently reliable to refute the different story told by Ekbatani or whether there still existed a doubt which would lead to Ekbatani's acquittal.   The Court of Appeal decided, without a hearing, to confirm the District Court's conviction.   The European Court of Human Rights considered that the question of the applicant'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 - who claimed that he had not committed the act alleged to constitute a criminal offence ... - and by the complainant".   Accordingly, the European 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" (para. 32 of the judgment).           The present case is in our view of a different character.   The facts upon which the applicant's conviction was based are not in dispute.   The applicant did not contest that he had driven a tractor on a highway ("motortrafikled") where such traffic was forbidden.   Nor did he contest that there had been, as also noted in the Court of Appeal's judgment, a road sign at the entrance of the highway at Stensnäs, although he did allege that certain other road signs warning of the approaching highway and indicating an alternative road had been missing.   His defence was essentially of a different nature.   He argued that the weather had been misty and that he had therefore not seen any road sign.   Consequently he did not know that the road was a highway ("motortrafikled") and even if he had been aware of this, he would not have known what traffic limitations this entailed.           In Swedish criminal procedure a review upon appeal is in principle a full review of the case.   Nevertheless, the particular grounds on which the appeal is based are an important element in the proceedings, and the Court of Appeal will in the first place examine whether these grounds are such as to lead to a reversal of the judgment of the lower court.   Insofar as relevant facts relating to the offence are not contested in the appeal, the Court of Appeal will normally find no reason to proceed to a new examination of these facts, in particular where - as in the present case - the facts are trivial and involve only a minor offence and where moreover the penalty is merely a modest fine.           From the Court of Appeal's judgment it must be concluded that the Court had found that neither the weather conditions nor the applicant's lack of knowledge about the traffic rules could relieve him of criminal responsibility for his act under the Traffic Ordinance. Indeed, the fact that the Court does not even discuss the matter in the judgment shows that the Court had no doubts whatsoever in this respect.   Consequently, there was no need to clarify these matters further at a public hearing.           Moreover, in regard to the act which constituted the offence there was no dispute.   The applicant never contested that he had driven the tractor on the highway or that there had been a road sign at the entrance of the highway indicating the character of the road. Consequently, no question of credibility or of assessment of conflicting evidence arose, which makes the case differ on an essential point from the Ekbatani case.           For these reasons, we consider that the features of the appeal proceedings in the present case were such as to justify the absence of a hearing.   We have therefore voted against the conclusion in para. 51 of the Report.   APPENDIX I   HISTORY OF THE PROCEEDINGS   Date                             Item ______________________________________________________________________     16 October 1984                  Introduction of the application   3 December 1984                  Registration of the application     Examination of admissibility   7 October 1985                   Commission's decision to give notice                                 of the application to the respondent                                 Government and 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   25 October 1988                  Submission of the Government's                                 observations   27 April 1989                    Submission of the applicant's                                 observations   10 July 1989                     Commission's decision to declare                                 part of the application admissible   Examination of the merits   9 December 1989                  Consideration of the state of                                 proceedings   6 March 1990                     Commission's deliberations on the                                 merits and final votes   15 March 1990                    Adoption of the Report