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