European Court of Human Rights - case of Ekbatani v. Sweden (1988) (excerpts)

European Court of Human Rights - case of Ekbatani v. Sweden (1988) (excerpts)


27. The manner of application of Article 6 (art. 6)

to proceedings before courts of appeal does, however, depend on the

special features of the proceedings involved; account must be taken of

the entirety of the proceedings in the domestic legal order and of the

role of the appellate court therein (see, as the most recent

authority, the above-mentioned Monnell and Morris judgment, Series A

no. 115, p. 22, § 56).


31. The Court has on a number of occasions held that, provided

that there has been a public hearing at first instance, the absence of

"public hearings" before a second or third instance may be justified

by the special features of the proceedings at issue. Thus,

leave-to-appeal proceedings and proceedings involving only questions

of law, as opposed to questions of fact, may comply with the

requirements of Article 6 (art. 6), although the appellant was not

given an opportunity of being heard in person by the appeal or

cassation court (see, inter alia, the above-mentioned Monnell and

Morris judgment, Series A no. 115, p. 22, § 58 (leave to appeal) and

the Sutter judgment of 22 February 1984, Series A no. 74, p. 13, § 30

(court of cassation)). However, in the latter case, the underlying

reason was that the courts concerned did not have the task of

establishing the facts of the case, but only of interpreting the legal

rules involved.

32. Here, the Court of Appeal was called upon to examine the case

as to the facts and the law. In particular, it had to make a full

assessment of the question of the applicant's guilt or innocence

(see paragraph 20 above). The only limitation on its jurisdiction was

that it did not have the power to increase the sentence imposed by the

City Court.

However, the above-mentioned question was the main issue for

determination also before the Court of Appeal. In the circumstances

of the present case that question 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 the criminal offence

(see paragraph 15 above) - and by the complainant. Accordingly, 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.

The limitations on the Court of Appeal's powers as a result of the

prohibition of reformatio in pejus related only to sentencing. They

cannot be considered to be relevant to the principal issue before the

Court of Appeal, namely the question of guilt or innocence. Neither

can the fact that the case-file was available to the public.

33. Having regard to the entirety of the proceedings before the

Swedish courts, to the role of the Court of Appeal, and to the nature

of the issue submitted to it, the Court reaches the conclusion that

there were no special features to justify a denial of a public hearing

and of the applicant's right to be heard in person. Accordingly,

there has been a violation of Article 6 § 1 (art. 6-1).