CASE OF HELMERS v. SWEDEN
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
C. Russo;R. Pekkanen
11. The applicant, Mr Reinhard Helmers, is a German citizen. He is a university lecturer and resides in Lund in Sweden. 12. In 1979 Mr Helmers was not selected for appointment to an academic post at the University of Lund. As he considered that the decision was discriminatory and that the recruitment board had been biased, he appealed to the National Board of Universities and Colleges (universitets- och högskoleämbetet, "UHÄ"), which requested a specially established university committee to submit a written opinion. In this opinion, which was dated 2 October 1980, the committee stated, inter alia, that in his appeal Mr Helmers had accused the person eventually selected for the post, Mr L., of having obtained it by means of secret pressure exercised on one of the members of the recruitment board by a Professor E. (who had also taken part in the recruitment procedure) as a reward for Mr L.’s assistance in a campaign led by Professor E. against Mr Helmers. On 10 December 1981 the Government, at last instance, rejected the applicant’s appeal against the appointment decision. 13. Meanwhile, the applicant, who considered that the university committee’s statement amounted to defamation, had reported the matter to the police. However, the Chief District Prosecutor of Lund chose not to pursue the investigation and his decision was upheld on appeal, ultimately by the Prosecutor General. 14. The applicant then decided to use his entitlement under Chapter 20, section 8, of the Code of Judicial Procedure (rättegångsbalken) to bring a private prosecution for defamation or, alternatively, aggravated defamation (förtal or grovt förtal, Chapter 5, sections 1 and 2, of the Criminal Code, brottsbalken) and for making false statements (osant intygande, Chapter 15, section 11, of the Criminal Code), against one of the members of the special university committee, Mr F., and against its secretary, Ms E. Ms E. was also accused of having incited Mr F. to commit the offences (Chapter 23, section 4, of the Criminal Code). The maximum sentence prescribed by law for aggravated defamation was two years’ imprisonment. Mr Helmers also availed himself of the possibility under Chapter 22, section 1, of the Code of Judicial Procedure of joining an action for damages to the private prosecution, and he sought compensation in the amount of one Swedish krona from each of the accused. 15. The Lund District Court (tingsrätten) held a public hearing on 9 September 1981, at which the applicant and the defendants had the opportunity to address the court. On 19 November 1981 the court delivered its judgment. It noted that the special committee’s summary of Mr Helmers’ appeal satisfied the objective criteria of defamation in that it was likely to discredit the applicant in the eyes of others. However, the court found that neither Ms E. nor Mr F. had incurred any criminal liability: Ms E. could not be held responsible for the committee’s statements as she had only been the rapporteur and not a decision-taking member; it was true that Mr F. had not been under any duty to make a statement as he had not been present when the committee examined Mr Helmers’ appeal, but it had to be considered justifiable for him, as a member of the committee, to join its opinion. After examining the correctness of the summary, the District Court concluded: "It was not an easy task for the committee to summarise Mr Helmers’ long submissions which, in the opinion of the court, were also difficult to interpret. The summary made must therefore, as Mr F. and Ms E. have maintained, be considered as a reasonable interpretation of what Mr Helmers has put forward. In any event, it has not been established that Mr F. knowingly made any untrue statements." The District Court furthermore found no evidence to support the allegation that Ms E. had made a false statement or incited Mr F. to commit a criminal offence. The applicant’s private prosecution was accordingly dismissed and the claim for compensation was also rejected. 16. On 9 December 1981 Mr Helmers appealed to the Court of Appeal (Hovrätten) of Skåne and Blekinge. He submitted, inter alia, the following. The District Court had, contrary to well-established case-law, excluded criminal liability on the part of Ms E. on the ground that she had only been rapporteur and not a decision-taking member of the committee. The summary made by the special committee was untrue as a matter of fact. The fact that one of the professors involved in the recruitment procedure, Professor E., had for a long time led a campaign against Mr Helmers had become a matter of public knowledge throughout the whole of Europe, as could be seen from legal textbooks, parliamentary documents, newspaper articles and radio and television programmes. It was also well-known that Professor E. had sought to have abolished the subject for the teaching of which the impugned appointment procedure took place and this was evidenced by, amongst other things, a complaint to the Chancellor of Justice (justitiekanslern) and an appeal by the students to UHÄ. Mr Helmers claimed that in view of the above facts, his appeal submissions to the UHÄ (see paragraph 12 above) could not possibly be construed as anything more than a challenge, on account of bias, of Professor E.’s involvement in the appointment decision. He stated that this must have been clear both to Ms E. and Mr F. and that they were thus both guilty of defamation because of their libellous statement in the committee’s opinion. He added that, even if the District Court had not found it to be an easy task to summarise his submissions, the same could not hold true for the defendants, who had been in possession of all the documents in the appointment case for four months. In this connection, he also pointed out that his appeal submissions had referred to all the relevant facts and these were well-known to those concerned at the university department in question. Finally, he requested the Court of Appeal to hold an oral hearing. 17. On 11 March 1982 the Court of Appeal received Ms E.’s and Mr F.’s reply to Mr Helmers’ appeal. This reply was sent to Mr Helmers the next day, together with a note indicating that the case could be decided without an oral hearing and that he had 14 days to file his pleadings with the court. Mr Helmers submitted these on 16 April and they were forwarded to the accused the same day, together with a note similar to the one sent to Mr Helmers. Between April and November 1982 the parties lodged a number of further written observations with the court. Mr Helmers claimed that some of the material submitted by the defendants was irrelevant as it was a mere appeal to political prejudices and he asked the court to refuse it. He referred in particular to four newspaper articles written by others and a press release issued by the Secretary to the European Commission of Human Rights on 15 March 1982, all of which material related to a previous application by Mr Helmers to the Commission (no. 8637/79), which had been declared inadmissible on 10 March 1982 (see paragraphs 24-25 below). 18. In a judgment of 28 November 1983 the Court of Appeal decided the case on the basis of the written evidence, without having held any public hearing. It rejected the applicant’s plea that some of the material submitted by the defendants should be ruled inadmissible. As to the merits, the court found both Mr F. and Ms E. responsible for the committee’s opinion of 2 October 1980, which it considered was likely to discredit the applicant in the eyes of others. The judgment went on to state: "The scope of criminal liability for defamation is limited by the provision contained in Chapter 5, section 1, second sub-paragraph, of the Criminal Code. A person who has uttered a defamatory statement is thus free from liability, inter alia, if he was under a duty to make a statement and the information given was true or had a reasonable foundation. The legislature has included appointment cases among those in which there may be a conflict between opposing interests. The circumstances were such that both Mr F. and Ms E. were under a duty to make a statement. The fact that Mr F. gave his opinion only later is of no relevance in this context. The summary must furthermore, just as the District Court found, be considered as a reasonable précis of what Mr Helmers put forward in his memorial supporting his appeal. Mr F. and Ms E. therefore had a reasonable foundation for the information they provided. Accordingly they cannot be convicted of defamation. Nor can the Court uphold the prosecution brought against them on the charge of having made false statements or that brought against Ms E. on the charge of having incited these offences. As a result of this conclusion in respect of the defendants’ criminal liability, Mr Helmers’ claim for damages must be dismissed - just as the District Court found." 19. The applicant appealed to the Supreme Court (högsta domstolen), claiming that a number of serious breaches of procedural law had occurred at first instance and that although he had pointed out these irregularities to the Court of Appeal, it had given a judgment on the merits based on new evidence without having held an oral hearing. In support of his complaints Mr Helmers also invoked Article 6 (art. 6) of the Convention and the serious and far-reaching consequences the outcome of the proceedings would have for him. On 21 December 1984 the Supreme Court refused the applicant leave to appeal. 20. According to Chapter 21 of the Code of Judicial Procedure, lower courts must not as a rule give judgment in criminal cases until the accused has been able to defend himself at an oral hearing. Exceptions to this rule do, however, exist, particularly at appellate level. Thus, Chapter 51, section 21, as worded at the relevant time (it was subsequently amended with effect from 1 July 1984), provided: "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 ... " 21. The Court of Appeal has the power to review questions both of law and of fact. However, there are some limits on its jurisdiction. Section 23 of Chapter 51, for instance, lays down that the Court of Appeal may not normally change the lower court’s assessment of the evidence to the disadvantage of the accused without the evidence in question being produced afresh before the Court of Appeal; Chapter 51, section 25 (as amended by Laws 1981:22 and 228), also contains a rule prohibiting the appellate court, in cases where the appeal is lodged by the accused or by the prosecutor for the benefit of the accused, from imposing a sentence which can be considered more severe than that imposed at first instance.