AS TO THE ADMISSIBILITY OF
Application No. 16511/90
by Carl Gustaf BJÖRKELUND
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 May 1995, the following members being present:
Mrs. G.H. THUNE, Acting President
MM. H. DANELIUS
G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 September 1989
by Carl Gustav BJÖRKELUND against Sweden and registered on
26 April 1990 under file No. 16511/90;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
8 February 1993 and the observations in reply submitted by the
applicant on 1 December 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as submitted by the parties, may be summarised as
follows.
The applicant is a Swedish citizen, born in 1935, and residing
in Elsinore, Denmark. He is an assistant professor of law by
profession.
A. The particular circumstances of the case
In 1970 the applicant became an assistant professor (docent) in
civil law at the University of Lund. The applicant also gave a number
of courses outside the University for a private organisation,
"Kursverksamheten i Lund", which provided him with substantial extra
income. In order for these courses to attract students, it was
necessary to have them approved by the Governing Board of the Legal
Department (institutionsstyrelsen - "the Board") at the University, a
body consisting of representatives of the students, the professors and
the administrative staff. The President of the Board was the Dean of
the Faculty, C.
The applicant's extra income from external courses stopped in
1979 as the Board decided not to approve his courses. As a result the
applicant's financial situation became difficult. He was declared
bankrupt in 1979 and C, who had accepted to stand surety for certain
bank loans, was forced to honour his surety engagements.
The applicant was indicted for fraud in connection with some of
his bank loans, but he was eventually acquitted of these charges in
1985.
In 1984 C approached the applicant in order to recover what he
had paid under his surety engagements. The applicant informed him,
however, that he was unable to pay for which reason C, on
24 April 1984, instituted proceedings in the District Court (tingsrätt)
of Lund. C claimed a total of 29,000 SEK plus interest referring to
three bank loans he had paid under the surety engagements. The
applicant did not reject C's claims as such but objected to the claims
being dealt with in the District Court of Lund as he did not consider
this court to be the correct forum following his move to Denmark. On
31 July 1984 the District Court rejected the forum objection,
indicating that an appeal against this decision was only possible in
connection with an appeal against the subsequent judgment on the merits
of the case.
The applicant's father died in November 1984 and on
20 December 1984 the applicant transferred his part of the inheritance
to his wife as payment for certain claims. On 21 December 1984 the
District Court ordered that the applicant's property should be attached
as security for C's claims.
On 4 January 1985 the applicant requested legal aid which was
granted by the Court on 28 February 1985.
On 20 May 1985 the District Court held the first preparatory
hearing. Both parties were present and represented by counsel.
C claimed a total of 29,099 SEK plus interest referring to the fact
that he had been forced to pay this amount under his surety engagement.
Again the applicant did not as such dispute that C had been forced to
pay the bank loans in question but he now presented counter-claims
totalling 29,750 SEK maintaining that C had caused him such a financial
loss due to the fact that C, as President of the Board in 1979, had
participated in deciding not to approve his external courses.
In the course of the examination of these claims the Court warned
the applicant of the consequences of attempting to delay the case by
presenting objections and counter-claims which were manifestly
ill-founded. After further discussions the parties reached an agreement
according to which the case could be settled if the applicant paid
17,500 SEK to C before 20 June 1985. The Court then adjourned the case
and called the parties to appear again on 16 September 1985.
It appears that the applicant and C could not agree on the
conditions for payment. The applicant deposited the amount of
17,500 SEK with the Enforcement Office (kronofogdemyndigheten) on
19 June 1985 and considered that he had thereby complied with the
conditions of the agreement, whereas C maintained that the agreement
was null and void as it had been reached on the basis of false
preconditions and since he had not received any money before
20 June 1985.
In these circumstances the applicant instituted proceedings on
3 July 1985 against C in the District Court of Lund claiming damages
for non-fulfilment of the agreement of 20 May 1985. He furthermore
requested the Court to attach C's property as security for his claims.
On 23 July 1985 the Court rejected the applicant's claim of
attachment, decided to join the two cases and called the parties to
another preparatory hearing on 16 September 1985.
On 16 September 1985 C appeared before the Court assisted by
counsel. The applicant did not appear but his counsel, who was present,
submitted that this did not constitute an obstacle to proceeding with
the case. C reiterated his original claims, maintained that the
agreement of 20 May 1985 was null and void and rejected the applicant's
claims for damages. Counsel for the applicant maintained that C was
liable to pay damages due to the fact that C had allegedly caused the
applicant a financial loss in his capacity as President of the Board
which refused to accept the applicant's external courses in 1979.
Furthermore, he maintained that the case should be dismissed due to the
fact that C had not complied with the conditions of the agreement of
20 May 1985, which again had caused the applicant a further financial
loss for which he also claimed damages.
After having heard the parties' submissions the presiding judge
asked the parties whether they agreed to proceed immediately to the
main hearing (omedelbar huvudförhandling).
The applicant's counsel stated that he opposed such a hearing as
he intended to call a witness to testify regarding C's contacts with
"Kursverksamheten i Lund" in the summer of 1979. Furthermore, he might
have to adjust his claims in view of certain information which he had
received on the telephone from the Enforcement Office in the course of
the preparatory hearing. In addition, he could not indicate his
client's position with regard to all of C's claims.
C had no objection to proceeding with the case. He furthermore
maintained that the only purpose of the applicant's request to call a
witness was to further delay the proceedings as it was clear that C's
position on the Board in 1979 could not form the basis of any claim for
damages.
On the basis of the above the Court decided to proceed with the
case. At the end of the hearing the presiding judge requested counsel
for the applicant to comment, on the latter's behalf, on the provisions
in the Code of Judicial Procedure (rättegångsbalken) which concern
sanctions for abuse of trial (rättegångsmissbruk). Counsel replied that
these provisions could not be commented upon.
On 18 September 1985 the applicant submitted a letter to the
Court in which he explained that he had been unable to appear in court
on 16 September 1985 due to a stomach complaint and expressed his
astonishment as to the fact that the Court had referred to the
provisions of the Code of Judicial Procedure concerning abuse of trial.
In so far as this was correct he requested the Court to examine whether
he had been guilty of abuse of trial. He assumed that, if this was the
case, the Court would extensively state its reasons therefor.
By judgment of 14 October 1985 the District Court ordered the
applicant to pay to C 29,099 SEK plus interest, being the amount C had
paid in order to honour his surety engagements. It furthermore rejected
the applicant's claims for damages. Finally, the Court ordered the
applicant to pay the costs of the proceedings and revoked the
applicant's grant of legal aid. As regards the question of abuse of
trial the Court stated as follows:
(translation)
"The claims and the grounds put forward by (the applicant)
show that he did not wish to have a serious examination of
the case. There is no other explanation for his behaviour
than his wish to delay the proceedings and make them
unpleasant for the other party.
The presiding judge warned (the applicant and his counsel)
in the course of the first hearing of the consequences of
a behaviour which delayed the case.
What has occurred justifies holding (the applicant) liable
to a penalty (åläggas straffansvar) in accordance with
Chapter 9, section 3, of the Code of Judicial Procedure for
having attempted to delay the proceedings by making clearly
unfounded allegations and objections."
The penalty imposed was 50 day-fines of 20 SEK each.
On 23 October 1985 the applicant appealed against the judgment
of the District Court to the Court of Appeal (hovrätten) of Skåne and
Blekinge. He requested firstly that the Court of Appeal quash the
judgment as the District Court was not the right forum. Secondly, he
requested that the judgment be quashed due to a procedural error
committed by the District Court in that it had proceeded to a hearing
of the case on 16 September 1985 despite the applicant's objections.
In the alternative the applicant requested the Court of Appeal
to accept his counter-claims, to annul the penalty for abuse of trial
and to reinstate him in his right to legal aid. Finally, the applicant
requested an oral hearing should the Court of Appeal decide to examine
the case on its merits and also permission to submit at a later stage
the evidence he intended to rely on.
The applicant's forum objection was rejected by the Court of
Appeal by decision of 30 May 1986, which was pronounced on
18 June 1986. It was indicated that the decision could only be appealed
against in connection with the judgment on the merits. The Court then
directed the applicant to complete his petition with respect to the
grounds for the appeal and to specify his evidence.
The applicant completed his appeal in a submission of
27 August 1986. He referred to his previous submissions of
23 October 1985 and maintained his position. As regards in particular
the penalty for abuse of trial the applicant maintained that he had not
had the possibility of defending himself and that the District Court
had not been able to substantiate the allegation that his objections
and counter-claims had been made with the intention of delaying the
case. The applicant did not in his submissions refer to any other
evidence or witnesses which he wanted the Court of Appeal to examine.
While the case was pending before the Court of Appeal the
applicant submitted a complaint against the judge of the District Court
to the Parliamentary Ombudsman. By decision of 22 January 1988 the
Ombudsman found, noting that the case was still pending, that the
summons whereby the applicant had been called to appear in court on
16 September 1985 had been incorrectly drafted which, however, had been
of no importance to the case. Furthermore, the Ombudsman criticised the
fact that, on one occasion, the Court had not replied to a letter from
the applicant. Otherwise the Ombudsman did not find any reason to
criticise the judge in so far as the present case was concerned and
thus decided to take no further action.
On 27 September 1988 the Court of Appeal pronounced judgment in
the case without having held an oral hearing. Its judgment reads as
follows:
(translation)
"Claims before the Court of Appeal
Maintaining that the District Court was not empowered to
proceed to a main hearing immediately following the
preparatory hearing, (the applicant) has requeted that the
Court of Appeal quash the judgment and refer the case back
to the District Court for renewed examination. Secondly, he
has claimed that the Court of Appeal accept his set-off
defence and find that he cannot be required to pay (C) as
requested. In the alternative (the applicant) has requested
that the Court of Appeal limit his liability towards (C) to
the amount on which the parties agreed in accordance with
the settlement reached and that the Court of Appeal decide
that (C) must pay damages for the losses (the applicant)
has suffered due to (C's) breach of the settlement. (The
applicant) has furthermore requested that the Court of
Appeal revoke the attachment order, relieve him of the
obligation to pay (C's) costs in respect of the District
Court proceedings, oblige (C) to pay (the applicant's)
costs in respect of his own work during the District Court
proceedings, revoke the District Court's penalty in the
form of day-fines for abuse of trial and quash the District
Court's decision to revoke the grant of legal aid. Finally,
(the applicant) has requested compensation for legal costs
in the Court of Appeal.
The Court of Appeal judgment
The Court of Appeal finds, as did the District Court, that
the case is obvious. Accordingly, the District Court was
empowered to proceed as it did with the main hearing in a
simplified way immediately following the preparatory
hearing. It follows that (the applicant's) requests to
quash the District Court judgment and to remit it to the
District Court shall be rejected.
Also (the applicant's) other grounds of appeal are, in so
far as they concern the main claims, obviously unfounded.
Thus, the judgment of the District Court shall be confirmed
in these respects.
Like the District Court the Court of Appeal finds that (the
applicant) shall be liable to a penalty (ådömas
straffansvar) pursuant to Chapter 9, section 3, of the Code
of Judicial Procedure.
For the reasons advanced by the District Court, and since
it is not obviously unjust, the applicant's right to legal
aid shall cease."
Following this judgment the applicant applied for leave to appeal
to the Supreme Court (Högsta domstolen). In his submissions of
17 October and 1 December 1988 and of 5 February 1989 he maintained
inter alia his forum objection and his objections in respect of the
proceedings in the District Court. He furthermore complained that the
Court of Appeal had held no oral hearing and that he had not been
requested to submit his list of evidence.
On 6 April 1989 the Supreme Court refused leave to appeal.
B. Relevant domestic law
Provisions concerning the determination of civil cases before
district courts are found in Chapters 42 and 43 of the Code of Judicial
Procedure (hereinafter "the Code"). The main rule is that a case may
only be determined subsequent to the holding of a main hearing. There
are, however, some exceptions to that rule. Thus, the court may, inter
alia, issue a default judgment and a judgment based on a party's
consent to a claim during the preparatory stages of the proceedings
(Chapter 42, section 18).
In some cases the court may hold a main hearing in a simplified
form with the consent of the parties. Such a main hearing may take
place immediately following a preparatory hearing. The court may also
hold an immediate main hearing regardless of the consent of the parties
if the appropriate resolution of the case is obvious to the court. The
relevant provision was subject to minor amendments in 1988. At the time
at issue in the present case, however, Chapter 42, section 20,
subsections 2 and 3, read as follows:
(translation)
"If the parties consent the main hearing may be held in a
simplified form if no impediment of the kind referred to in
Chapter 43, section 2, exists. Such a main hearing may take
place immediately following the preparation or, provided
that the same judge presides, within fifteen days of the
final preparatory hearing. Regardless of the consent of the
parties, a main hearing in the simplified form may be held
immediately following the preparation if the case appears
to be obvious.
At a main hearing in the simplified form all the attendant
circumstances at the session when the preparatory hearing
was concluded shall be considered to have occurred also at
the main hearing without a need to repeat it at the
latter."
According to Chapter 43, section 2, a main hearing shall be
cancelled and scheduled for a new date if a party who should be present
in person has appeared only through his counsel; if a witness or an
expert who should be examined fails to appear; if a party wants to
submit new, important arguments or to present new evidence, and it is
found that postponement is required in order to provide the adverse
party with a reasonable opportunity to meet the new arguments or
evidence; or if there is otherwise an impediment to immediate
examination and final determination of the case.
There has been an opportunity for the court to conduct a main
hearing in a simplified form ever since the enactment of the Code in
1942. According to the travaux préparatoires, this procedure was
intended to be used in minor cases and cases which did not require an
extensive investigation. Furthermore, a simplified main hearing against
a party's wishes could only take place if it was manifest that the
circumstances invoked by the plaintiff could not lead to the granting
of his claim or if the defendant's repudiation of the claim was
manifestly ill-founded (cf. Nytt Juridiskt Arkiv (NJA) II 1943 p. 534).
The provisions regarding an ordinary main hearing are in
principle applicable to a main hearing in a simplified form. However,
the court may be composed of one professional judge instead of three.
This entails a limitation of the possibility to hold a main hearing in
a simplified form in cases where there is a need for a more extensive
examination of evidence. Examination of evidence should only to a
limited extent be made by a single judge (Government Bill 1983/84:78
p. 69).
The court has an obligation to ensure that a case is sufficiently
investigated and that irrelevant matters are not involved in the
examination (Chapter 43, section 4, of the Code). If the court finds
that a fact, which a party wishes to prove, is of no importance to the
case or that an item of evidence is unnecessary or evidently would be
of no relevance, the court shall reject it (Chapter 35, section 7, of
the Code).
Provisions to the effect that a case may be determined in the
absence of a party are found in Chapter 44 of the Code. Section 6 of
that Chapter provides for the possibility to determine a case despite
the fact that the party, who has been ordered to appear in person, is
only present at the hearing through counsel or despite the fact that
the party is not present at all.
It is for the court to decide at the time of the hearing whether
the personal presence of the party is in fact needed (cf. NJA II 1943
p. 536). According to general provisions concerning proceedings in
civil cases, a party shall attend a main hearing in a district court
in person, unless his presence can be assumed to be without importance
for the examination of the case (the Code, Chapter 11, section 5).
Provisions concerning proceedings in civil cases before a court
of appeal are found in Chapter 50 of the Code. According to section 4
of that Chapter, an appeal petition shall contain certain information,
such as a specification of the evidence relied upon by the appellant.
It also provides that the appellant shall indicate what he intends to
prove by each specified item. The court shall request the appellant to
complete his petition if it does not comply with section 4 or is
otherwise incomplete.
As a main rule, the petition shall be served upon the appellee
with a notice directing him to file a reply (Chapter 50, section 8).
However, the court of appeal may immediately pass judgment, without any
further communication with the parties, if it is manifest that the
petition is unfounded. According to the travaux préparatoires, this
possibility may be used mainly in cases where the appellant has lodged
his appeal against the judgment of the district court in order to
prevent that judgment from gaining legal force or for some other undue
purpose (cf. Government Bill 1983/84:78 p. 80).
The court of appeal may determine a civil case on the basis of
the case-file, i.e. without holding an oral (main) hearing, in some
instances. Chapter 50, section 21, provides, inter alia, that the court
of appeal may dispose of an appeal on the merits without a main
hearing, if the appellant's claim is consented to, if it is obvious
that the claim is unfounded, if both parties have requested that the
appeal be disposed of on the merits without a main hearing or have
declared that they have no objection thereto.
An appeal may always be decided on the merits without a main
hearing if it is plain that such a hearing is not required.
When the court of appeal has decided that a case shall be
determined without an oral hearing, the parties shall be requested to
conclude their submissions in writing, unless it is obvious that they
have already done so (Chapter 50, section 22).
Chapter 9 of the Code contains provisions with regard to certain
types of procedural offences. Sections 1-3 regulate abuse of trial
while section 5 encompasses, inter alia, improper behaviour in court.
A party who is found guilty of abuse of trial within the framework of
a civil case can only be punished in accordance with the Code.
Section 1 deals with the case where a party, against his better
judgment, initiates or causes the initiation of a civil action.
Section 2 concerns cases where a person, against his better judgment,
appeals against a judgment or a court order.
Chapter 9, section 3, which is the relevant provision in the
present case, has undergone minor changes in 1992. However, at the
relevant time, the provision read as follows:
(translation)
"A party in a civil case, or an injured party in a criminal
case, who endeavours to prolong the course of litigation by
making clearly unfounded allegations or defences, by
withholding evidence, or by any other improper measure, is
punished by day-fines. What has been said of a party shall
also apply to an intervenor, even if he does not have
standing as a party."
Liability according to Chapter 9, section 3, requires that a
party acts in an undue manner in order to delay the trial. Until
1 January 1992, the sanction for abuse of trial according to Chapter 9,
section 3, was so-called day-fines. They ranged from a minimum of one
fine to a maximum of 120 fines. Each fine was an amount of money
ranging from 10 SEK to 1,000 SEK depending on the financial situation
of the person concerned.
The question of whether a person is guilty of abuse of trial is
dealt with by the court of its own accord (Chapter 19, section 5,
subsection 1, of the Code). The matter can only be dealt with during
the particular proceedings in which the abuse has taken place and only
by that court. The court is competent to examine the issue of abuse of
trial in the composition it had at the time when the offence took
place. The sanction for abuse of trial does not presuppose prosecution.
Nor is it necessary to issue a summons (Chapter 20, section 1 and
Chapter 45, section 2, subsection 1 of the Code). The court may
immediately decide on a sanction for abuse of trial by issuing a
decision during the course of the hearing. However, it may also make
a decision on this issue in its judgment or in a final decision
pertaining to the case.
The Code of Judicial Procedure does not contain any provisions
according to which the sum of money a court has ordered a person to pay
for abuse of trial may be converted into a term of imprisonment. Such
matters are regulated in the 1979 Act on the Enforcement of Fines
(bötesverkställighetslagen, 1979:189). A conversion may happen but only
after a court has so decided in proceedings conducted according to the
rules governing public prosecution.
COMPLAINTS
In respect of the proceedings in the District Court the applicant
complains, under Article 6 para. 1 of the Convention, that the dispute
with C was not determined by an impartial tribunal.
In respect of the proceedings as a whole the applicant
furthermore complains that he did not have a fair hearing within the
meaning of Article 6 para. 1 of the Convention.
Finally, with reference to Article 6 para. 3 of the Convention
the applicant complains that he was fined for abuse of trial without
having had the possibility of defending himself in person.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 September 1989 and
registered on 26 April 1990.
On 14 October 1992 the Commission (Second Chamber) decided to
bring the application to the notice of the respondent Government and
invite them to submit written observations on its admissibility and
merits.
The Government's observations were submitted on 4 February 1993.
On 20 October 1993 the Commission decided in the particular
circumstances of the case to extend the time-limit for the submission
of the applicant's observations in reply until 1 December 1993.
The applicant's observations were submitted on 1 December 1993.
THE LAW
1. The applicant has raised a number of questions under Article 6
(Art. 6) of the Convention relating to his right to a fair hearing by
an impartial tribunal. Article 6 (Art. 6) reads, as far as relevant,
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 ... hearing ... by an ... impartial
tribunal ... .
..."
The applicant has raised in particular the question of the
impartiality of the presiding judge of the District Court.
The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) must be determined according
to a subjective test, that is on the basis of the personal conviction
of a particular judge or jury in a given case, and also according to
an objective test, that is ascertaining whether the judge or the jury
offered guarantees sufficient to exclude any legitimate doubt in this
respect (cf. Eur. Court H.R., Fey judgment of 24 February 1993,
Series A no. 255, p. 12, para. 28). As regards the subjective test, the
Commission and the Court of Human Rights have constantly held that the
impartiality of a judge or a juror must be presumed until the contrary
is established (cf. for example, Eur. Court H.R., Le Compte, Van Leuven
and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25,
para. 58).
In the present case the applicant maintains that the presiding
judge showed bias against him, exemplified by the judge's decision to
revoke the grant of legal aid, to order the applicant to pay C's
personal costs, to fine him for abuse of trial, to proceed with the
case despite counsel's objections and to refuse to lift the attachment
order concerning the applicant's property. Furthermore, the applicant
alleges that the judge did not give sufficient reasons for the
decisions taken and allegedly applied the provisions of the Code of
Judicial Procedure wrongly.
The Commission finds that concerning the objective impartiality
appearances may be of a certain importance and account must be taken
of questions of internal organisation. In this respect the Commission
has found nothing in the actual organisation of the adjudication which
would reflect adversely on the District Court's or the presiding
judge's objective "impartiality". There remains the fact that the
applicant might not have seen the Court or the presiding judge as being
free from bias due to the fact that the dispute in question, as well
as associated points of legal aid, costs, etc. were determined against
him. However, the existence of such a sentiment on the part of a party
against whom the decisions are taken is not sufficient to establish a
lack of impartiality. The Commission has found no other evidence which
could raise doubt as to the impartiality of the District Court or the
presiding judge within the meaning of Article 6 (Art. 6) of the
Convention. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-3) of the
Convention.
2. The applicant also complains that he did not have a fair hearing
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
In support of this allegation the applicant refers to his above
hesitations against the proceedings in the District Court and to the
fact that the Court of Appeal did not ask him to submit his list of
evidence and subsequently decided the case without an oral hearing as
requested by him. In particular the applicant complains of the fact
that the District Court judge, on 16 September 1985, decided to proceed
with an immediate main hearing, something the applicant considers is
contrary to the provisions of the Code of Judicial Procedure as his
claims were not obviously unfounded, as he was not present and as he
wanted to call a witness. Furthermore, the applicant maintains that the
fairness of the hearing was affected by the decision to fine him for
abuse of trial.
As regards the proceedings in the Court of Appeal the applicant
maintains, in particular, that the Court disregarded his wish to
present written and oral evidence and wrongfully classified the case
as being "obvious". Furthermore, he had expressly indicated that he
wanted an oral hearing in order to substantiate his claims.
Accordingly, the applicant considers, having regard to the case
as a whole, that he was not afforded a fair hearing within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
The Government point out that the proceedings in question
concerned C's attempt to recover the sums he had been forced to pay
under his surety engagements and that it is evident that the applicant
resorted to any possible means by which he could hope to prevent a
judgment in C's favour. The Government contend that there were
well-founded reasons to proceed with a main hearing on
16 September 1985 despite the applicant's absence or counsel's
protests. They refer in particular to C's right to have the dispute
determined within a reasonable time and to the fact that the applicant
was present during the first preparatory hearing on 20 May 1985, that
counsel for the applicant had announced that the latter's absence on
16 September 1985 did not prevent the preparatory hearing from taking
place, that no further evidence was produced by the plaintiff and that,
therefore, the determination of the case by the District Court was
based solely on points of law. Furthermore the Government maintain that
the decision to fine the applicant for abuse of trial was a separate
issue of no relevance to the outcome of the civil suit itself.
As regards the proceedings in the Court of Appeal the Government
point out that according to established case-law an oral hearing in the
appeal court is not always required as other considerations may justify
its omission. In the present case the Government refer to the fact that
an oral hearing was held in the District Court and that the issue to
be decided was of a fairly legal character. The applicant failed to
mention which evidence he wished to rely on and his physical attendance
was not essential. Furthermore, the Government point out that the
applicant had the opportunity to submit further written observations,
and the appeal did not raise any questions of fact or law which could
not adequately be resolved on the basis of the case-file. In these
circumstances the Government maintain, having regard to the Contracting
States' discretion as regards the choice of means to ensure compliance
with Article 6 (Art. 6) of the Convention, that the applicant was
afforded a fair hearing within the meaning of this provision.
The Commission recalls that the question whether a hearing
conforms with the standard laid down by Article 6 para. 1
(Art. 6-1) of the Convention must be decided on the basis of the court
proceedings as a whole including, in the present case, not only the
proceedings in the District Court but also those of the Court of
Appeal. Following the granting of legal aid to the applicant a court
hearing was held on 20 May 1985 in the District Court where the parties
and their counsel were present. It is clear from the minutes of this
hearing that C's claim and the applicant's counter-claims were
thoroughly discussed. It is also clear that the Court decided to
adjourn the case and ordered the parties to reappear on
16 September 1985, an order which was repeated by the Court on
23 July 1985 after it was clear that no settlement had been achieved.
On 16 September 1985 the applicant did not appear but his counsel
expressly stated this did not constitute an obstacle to proceeding with
the case. C's claims and the applicant's counter-claims were discussed
once more following which the parties finalised their pleadings.
Having regard to the above the Commission finds that the
applicant was afforded a public hearing before the District Court
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Furthermore, the Commission finds that the applicant was afforded ample
opportunity to present to the Court everything which in his opinion was
of importance to the case. The Commission notes that the applicant
maintains that the District Court could not, under the Code of Judicial
Procedure, proceed directly to a main hearing. However, even assuming
this to be the case, this would not constitute in itself a violation
of the Convention (cf. Eur. Court of H.R., Oberschlick judgment of
23 May 1991, Series A no. 204, p. 23, para. 42). Furthermore, the
Commission does not find that the Court, in its refusal to adjourn the
case on 16 September 1985 went beyond its discretion in respect of the
question of taking evidence. The applicant's remaining hesitations
against the proceedings in the District Court do not, in the
Commission's view, disclose any appearance of a violation of the right
to a fair hearing.
As regards the proceedings in the Court of Appeal it is true that
the Court decided the case on the basis of the case-file, thereby
refusing the applicant's request for an oral hearing, as the Court
found that the case was obvious. The Commission recognises the value
attaching to the publicity of legal proceedings, but even where a court
of appeal has jurisdiction to review, as in the present case, both
facts and law Article 6 (Art. 6) does not always require a public
hearing irrespective of the nature of the issues to be determined (cf.
Eur. Court H.R., Helmers judgment of 29 October 1991, Series A no.
212-A, p. 16, para. 36). Provided a public hearing has been held at
first instance, the absence of such a hearing before a court of second
or third instance may accordingly be justified by the special features
of the proceedings at issue. Having regard to these features as
submitted the Commission finds that the applicant's appeal in respect
of his dispute with C did not raise any questions of fact or law which
could not be adequately resolved on the basis of the case-file. The
Court of Appeal could, as a matter of fair hearing, properly decide to
examine the appeal without the applicant having a right to present his
arguments at a public hearing also in this Court.
Likewise the Commission does not consider that the Court in any
way prevented the applicant from submitting lists of evidence or other
material which he found to be of relevance. Being well versed in the
routines of judicial procedure the applicant had ample opportunity to
present his list of evidence, something which he did not do despite the
fact that the case was pending before the Court of Appeal for quite
some time.
Thus, having regard to the entirety of the proceedings before the
Swedish courts and to the nature of the dispute between the applicant
and C, the Commission finds no appearance of a violation of the
applicant's right to a fair hearing within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
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.
3. The applicant also complains, with reference to Article 6 para. 3
(Art. 6-3) of the Convention, that he was fined for abuse of trial.
Article 6 para. 3 (Art. 6-3) of the Convention reads as follows:
"Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interests of justice so require;
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him;
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
The applicant maintains that the fine was imposed without his
having had the possibility of defending himself in person. He refutes
the courts' findings that he attempted to delay the proceedings and
also that his objections and counter-claims were unfounded.
Furthermore, the applicant submits that he was represented by a member
of the Swedish Bar Association in the proceedings for which reason he
should not have been personally liable.
The Government maintain that Article 6 (Art. 6) is not applicable
to the proceedings in question or, in the alternative, that the
applicant's complaints under this provision are manifestly ill-founded.
They argue that under Swedish law abuse of trial offences are not
considered to constitute criminal offences and their determination
rather constitutes an examination in the exercise of judicial control
of the proper administration of justice. The sanction does not
presuppose prosecution and is not entered in the criminal register. It
cannot be applied to any person other than a party to a court case and
the issue is dealt with by the particular court in question of its own
accord. Finally, neither the penalty nor the rather theoretical
possibility of a term of imprisonment can make the sanction a
"criminal" one. In the alternative the Government maintain that in so
far as relevant the applicant was afforded all the guarantees set out
in Article 6 para. 3 (Art. 6-3) of the Convention.
The Commission considers that rules enabling a court to sanction
disorderly conduct in proceedings before it are a common feature of
legal systems of the Contracting States. Such rules and sanctions are
derived from the indispensable power of a court to ensure the proper
and orderly functioning of its own proceedings. Measures ordered by the
courts under such rules are more akin to the exercise of disciplinary
powers than to the imposition of a punishment for commission of a
criminal offence and the courts may need to respond to such conduct
even if it is neither necessary nor practicable to bring a criminal
charge against the person concerned.
In the present case the applicant was sanctioned under Chapter 9
of the Code of Judicial Procedure, which applies only to inappropriate
behaviour during court proceedings by a person attending or taking part
in the proceedings but not to acts by a person falling outside the
circle of persons concerned by this chapter. It is for the court
sitting in the particular proceedings in which the misconduct has
occurred to examine, of its own accord, whether the misconduct violates
the provisions of the Code of Judicial Procedure in question. In these
circumstances the Commission finds that the kind of proscribed conduct
for which the applicant was fined falls outside the ambit of Article 6
(Art. 6) (cf. Eur. Court H.R., Ravnsborg judgment of 23 March 1994,
Series A no. 283-B, pp. 29-30, paras. 33-34).
It follows that this part of the application is 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to Acting President of
the Second Chamber the Second Chamber
(M.-T. SCHOEPFER) (G.H. THUNE)
Full & Egal Universal Law Academy