PROCEDURE

The case was brought before the Court on 5 December 1986 by the Government of the Kingdom of Sweden (“the Government“) and seven days later by the European Commission of Human Rights (“the Commission“), within the period of three months laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention“). The case originated in an application (no. 10563/83) against the Kingdom of Sweden lodged with the Commission on 20 June 1983 by Mr. John Ekbatani, a citizen of the United States of America, under Article 25 (art. 25). The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the Kingdom of Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the Government’s application and of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 (art. 6) of the Convention.

In response to the inquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to participate in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).

The Chamber of seven judges to be constituted included, as ex officio members, Mr. G. Lagergren, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 3 February 1987, the President of the Court drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. J. Cremona, Mr. F. Matscher, Mr. J. Pinheiro Farinha, Mr. R. Bernhardt and Mr. J. Gersing (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mrs. D. Bindschedler-Robert and Mr. B. Walsh replaced Mr. Cremona and Mr. Gersing, who were prevented from taking part in the consideration of the case (Rules 22 § 1 and 24 § 1).

Mr. Ryssdal assumed the office of President of the Chamber (Rule 21 § 5). He ascertained, through the Registrar, the views of the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant regarding the need for a written procedure (Rule 37 § 1). Thereafter, in accordance with the Orders and directions of the President of the Chamber, the following documents were lodged at the registry:

on 23 June 1987, the Government’s memorial;

on 21 October and 7 December 1987, various documents requested from the Government;

on 3 November 1987, the applicant’s claims under Article 50 (art. 50) of the Convention.

On 7 August 1987, after consulting, through the Registrar, the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed that the oral proceedings should open on 23 November 1987 (Rule 38).

On 6 November 1987, the Government submitted a document of its own motion. On 16 and 23 November respectively, the applicant and the Government lodged a number of documents in reply to provisional questions put to them by the President of the Court.

The hearing was held in public at the Human Rights Building, Strasbourg, on the appointed day. Immediately prior to its opening, the Court had held a preparatory meeting. There appeared before the Court:

for the Government Mr. H. Corell, Ambassador, Under-Secretary for Legal and Consular Affairs, Ministry for Foreign Affairs, Agent, Ms. L. Moore, Legal Adviser, Ministry of Justice, Counsel;

for the Commission Mr. F. Ermacora, Delegate;

for the applicant Mr. C. Arnewid, advokat, Counsel. The Court heard addresses by Mr. Corell for the Government, by Mr. Ermacora for the Commission and by Mr. Arnewid for the applicant, as well as their replies to its questions.

Following deliberations held on 26 November 1987, the Chamber, by unanimous decision, relinquished jurisdiction in favour of the plenary Court (Rule 50 of the Rules of Court).

On the President’s instructions, the Registrar requested the Commission to produce a number of documents, and these were supplied on 7 December 1987. On 9 December, the Registrar received further observations on Article 50 (art. 50) from the applicant.

Having taken note of the agreement of the Agent of the Government and the concurring opinions of the Delegate of the Commission and of the applicant, the Court decided on 29 January 1988 that the consideration of the case should continue without resumption of the oral proceedings (Rule 26).

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

The applicant, Mr. John Ekbatani, was born in 1930. He is a citizen of the United States of America and, at the time of the domestic proceedings in question, he resided at Gothenburg.

The applicant came to Sweden in 1978 to do certain research work at the University of Gothenburg. However, his initial plans did not come to fruition and his financial situation forced him to look for other work. In March 1981 he found a job at the Gothenburg Tramway Company (Göteborgs Spårvägar). He was, however, obliged to pass a Swedish driving test, since he only had an American driver’s licence. On 14 April 1981 he took the test but failed. This led to an angry exchange of views on 7 May 1981 between the applicant and the traffic assistant who had been in charge of the test; subsequently the traffic assistant reported the incident to the police.

In August 1981 the applicant was questioned by the police about the matter, and on 7 October 1981, he was charged with threatening a civil servant in breach of Chapter 17, section 1 of the Penal Code (brottsbalken).

During the trial hearing (huvudförhandling) before the City Court of Gothenburg (Göteborgs tingsrätt) on 9 February 1982, both the applicant and the traffic assistant were heard. On this testimony the City Court in a judgment on the same day found the applicant guilty of the charge brought against him and sentenced him to a fine of 600 Swedish Crowns (SEK). The costs of the proceedings were to be borne by the State. At the City Court the applicant was assisted by two public defence lawyers.

On 17 February 1982, the applicant appealed against this judgment to the Court of Appeal for Western Sweden (hovrätten för Västra Sverige) requesting acquittal as he claimed he had not committed the criminal act of which he was accused. Before the Court of Appeal, he was represented, first by a public defence lawyer and later by a private counsel. In his first written statement of evidence to the Court of Appeal on 18 June 1982, the applicant took it for granted that a hearing would be held and requested that the traffic assistant appear in person before the Court of Appeal. On 20 July 1982, the public prosecutor declared that he did not wish to adduce any new evidence. At the same time he applied for the case to be dealt with without a hearing in the Court of Appeal. In the event of a hearing he requested a rehearing of the testimony of both the applicant and the traffic assistant. In a new statement of evidence of 20 August 1982, the applicant’s counsel requested that a witness be heard. The witness was to inform the Court about “the applicant as a person and his credibility“. In his reply of 16 September 1982, the public prosecutor did not oppose the calling of this new witness if a hearing were to be held. However, he asked that, in that event, three other new witnesses should be heard to prove inter alia “Mr. Ekbatani’s lack of credibility and that the [traffic assistant’s] statement of the course of events on 7 May 1981 was correct“. The applicant’s defence counsel, on 27 September 1982, objected to the calling of these three new witnesses. On 4 October 1982, the Court of Appeal informed the parties by means of a written notice that, as the case might be determined without a hearing, they were invited to file their final submissions in writing. On 6 October 1982, the public prosecutor declared that he had no objection to the Court of Appeal’s giving judgment without a hearing. He added that, if there was a hearing, he would insist on the examination of the three new witnesses. On 19 October 1982, the applicant’s counsel stated his objection to the case being determined on the basis of the case-file, on the ground that a hearing was necessary for a thorough examination of the case. He also reiterated his objections to the calling of the witnesses called for by the prosecution. He added that, if the Court of Appeal should reach a decision on the basis of the case-file and acquit the applicant, he claimed reimbursement of his costs and expenses.

The Court of Appeal held no hearing and in its judgment of 12 November 1982 simply stated: “The Court of Appeal confirms the City Court’s judgment.“

On 7 December 1982, the applicant appealed to the Supreme Court (högsta domstolen). He asked the Supreme Court either to quash the Court of Appeal’s decision and send the case back for a hearing, or to acquit him, or to remit the sentence imposed. In support of his claims he stated: “The case concerns the credibility of Mr. Ekbatani and of the aggrieved party. In support of his credibility, Mr. Ekbatani has requested the hearing of a person who was not heard by the City Court. The prosecutor has not objected to the hearing of the new witness by the Court of Appeal. Since the case concerns new evidence of decisive importance for the outcome of the case, the second sub-paragraph of section 21 in Chapter 51 of the Code of Judicial Procedure (rättegångsbalken) ought not to be applied. The preparatory work also indicates that great consideration should be given to the wishes of the parties even in the case of a fine and in particular to those of the accused (Nytt Juridiskt Arkiv II 1943, pp. 670 et seq.). Also the prosecutor requested the hearing of new evidence before the Court of Appeal. For Mr. Ekbatani it is of great importance that he is not sentenced without having received an opportunity to have the evidence adduced by him tested. The Court of Appeal ought to make its own assessment of Mr. Ekbatani. In addition, the holding of a hearing would not lead to any major increase in the costs of the proceedings.“ On 3 May 1983, the Supreme Court held: “The Supreme Court finds no reason to grant leave to appeal, for which reason the Court of Appeal’s judgment shall stand.“

Under the rules on public access to official documents, contained in the Freedom of the Press Act (tryckfrihetsförordningen) and the Secrecy Act (sekretesslagen, 1980:100), the case-files from the courts involved were all available to the public.