Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16206/90

Harald Ståle Botten

against

Norway

REPORT OF THE COMMISSION

(adopted on 11 October 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-55). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 19-37) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 38-55) . . . . . . . . . . . . . . . . . . . . .13

III. OPINION OF THE COMMISSION

(paras. 56-82). . . . . . . . . . . . . . . . . . . . . . . .16

A. Complaint declared admissible

(para. 56) . . . . . . . . . . . . . . . . . . . . . . .16

B. Point at issue

(para. 57) . . . . . . . . . . . . . . . . . . . . . . .16

C. As regards Article 6 of the Convention

(paras. 58-81) . . . . . . . . . . . . . . . . . . . . .16

CONCLUSION

(para. 82) . . . . . . . . . . . . . . . . . . . . . . .22

DISSENTING OPINION OF M. F. MARTINEZ. . . . . . . . . . . . . . . 23

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .25

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .26

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Norwegian citizen, born in 1948. He is a major

in the Norwegian Air Force and resides in Oslo. In the proceedings

before the Commission the applicant is represented by

Mr. Finn E. Engzelius, a lawyer practising in Oslo.

3. The application is directed against Norway. The respondent

Government are represented by their Acting Agent, Mr. Per Tresselt,

Consul General of Norway.

4. The case concerns the criminal proceedings instituted against the

applicant following which he was convicted of having violated

section 78 of the Military Penal Code and sentenced to 20 days'

detention under guard, which was suspended, and to a fine of

5,000 Norwegian crowns. The applicant considers that in these

proceedings he did not have a fair trial within the meaning of

Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 22 December 1989 and registered

on 26 February 1990.

6. On 11 May 1992 the Commission decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 2 October 1992.

The applicant's observations in reply were submitted on 7 January 1993.

8. On 11 October 1993 the Commission decided in accordance with

Rule 50 para. 1 (b) of its Rules of Procedure to obtain the parties'

oral submissions on the admissibility and merits of the case.

9. The hearing took place on 17 January 1994. The Government were

represented by their Acting Agent, Mr. Per Tresselt, by Mr. Helge

Røstad as counsel and by Mr. Tor-Geir Myhrer, Mr. Frode Elgesem and

Mr. Petter F. Wille as advisers. The applicant was present and was

represented by Mr. Finn E. Engzelius as counsel and Mr. Johan Hjort as

adviser.

10. Following the hearing the Commission declared admissible the

applicant's complaint under Article 6 of the Convention concerning the

fairness of the proceedings. It declared inadmissible the remainder of

the application.

11. The text of the Commission's decision on admissibility was sent

to the parties on 26 January 1994 and they were invited to submit such

further information or observations on the merits as they wished. The

applicant and the Government submitted further evidence and

observations on 2 March and 3 March 1994 respectively.

12. On 11 March 1994 the Commission decided to grant the applicant

legal aid.

13. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present :

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

J. MUCHA

E. KONSTANTINOV

15. The text of this Report was adopted on 11 October 1994 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 of the

Convention, is :

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

17. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

19. In 1987 the applicant was the Head of the Norwegian Defence

Telecommunication Station on Jan Mayen island in the

Arctic Ocean. Jan Mayen is a part of the Kingdom of Norway.

20. On 16 April 1987 the captain of a shrimp trawler, M/S Polarbas,

asked the station on Jan Mayen for assistance. A fisherman had injured

his arm, and the captain asked for permission to bring the fisherman

ashore for treatment.

21. The request was considered by the applicant on 18 April 1987 and

he accepted to have the fisherman brought ashore. He agreed with the

captain of the trawler that the fisherman was to be transferred from

the trawler's life boat to a dinghy belonging to the station, coming

from the shore. There is no harbour on the island.

22. On the same day the applicant, accompanied by a member of the

station staff, prepared for the transfer operation and, not far from

the shore, they waited in the dinghy for the trawler's life boat to

join them. However, the life boat did not come as close to the shore

as expected and the applicant and his colleague therefore rowed the

dinghy further out.

23. It turned out that the life boat had suffered an engine breakdown

and was drifting towards some cliffs. The injured fisherman was taken

on board the dinghy and together with the applicant and his colleague

he headed for the shore. Due to a wave the dinghy capsized throwing its

three passengers into the sea which on that day had a temperature of

- 0.3° celsius. The fisherman, who was not wearing a survival suit,

drowned in the cold water. The applicant and his colleague were dressed

in survival suits, but whereas the applicant succeeded in reaching land

his colleague died of exhaustion or drowned before reaching shore.

24. A military investigation committee was set up to establish in

detail what had happened, to ascertain whether any regulations had been

violated and to indicate what measures could be taken in order to avoid

similar accidents in the future. The committee exercised no judicial

function. The committee delivered a report on 1 May 1987. It concluded,

inter alia, that the applicable instructions concerning the kind of

activities in question had been disregarded and that the applicant,

being the Head of the Jan Mayen station, was responsible for this.

25. On 11 July 1988 the public prosecutor of Norland decided to

present the applicant with the option of accepting a suspended sentence

of 27 days detention under guard (vaktarrest) and paying a fine of

5,000 Norwegian crowns. The option was based on alleged violations of

the Military Penal Code of 22 May 1902, Section 78, subsection 1,

concerning neglect or carelessness in the performance of official

duties.

26. The applicant did not accept the option, and the public

prosecutor therefore instituted proceedings against him in the Bodø

City Court (byrett) where the applicant was charged with the offence

mentioned in the above option.

27. The trial before the Bodø City Court took place from 9 to

13 March 1989. The applicant was heard, and thirteen witnesses as well

as three expert witnesses gave evidence. Furthermore, the Court held

an inquiry at the place of the accident on Jan Mayen on 11 March 1989.

Documentary evidence was also produced, inter alia, the military

investigation committee's report of 1 May 1987. On the basis of the

facts established and after an evaluation of the available evidence the

City Court acquitted the applicant by judgment of 30 March 1989.

28. In its judgment the Court stated as follows:

(translation)

"Ståle Botten has been charged with offences under

section 78, subsection 1, of the Military Penal Code. In

order to be convicted under this provision he must firstly

be an officer. The Court has no doubt that Ståle Botten was

stationed on Jan Mayen as a military officer on

18 April 1987. A further condition is that it was his

official duty to receive the injured fisherman on

Jan Mayen. It is a fact that the defendant did not have any

obligation in principle to receive the injured fisherman.

The station on Jan Mayen has neither the equipment nor the

personnel to attend to the problems of the fishing fleet.

The Court has, however, come to the conclusion that an

official duty arose for the defendant to receive the

injured fisherman at the moment he declared himself willing

to receive him. In reaching this decision the Court takes

into account that Polarbas contacted Jan Mayen Radio and

Ståle Botten was informed of the matter as Station

Commander. He undertook the assignment and in conducting

the assignment was personally active and used the station's

personnel and equipment.

The next condition is that the defendant must have been

guilty of neglect or carelessness in the landing operation

or in its preparations. In determining whether the

defendant has been guilty of neglect or carelessness it may

be significant to ascertain whether he has committed one or

more breaches of any applicable instructions. Clearly, a

breach of instructions does not necessarily involve neglect

or carelessness under section 78, subsection 1, of the

Military Penal Code. However, several repeated breaches of

instructions or gross breaches may entail neglect or

carelessness.

The prosecutor has argued that seven breaches have been

committed which altogether constitute neglect:

1. It was the duty of the defendant to use the dorry once

he had decided to receive a patient.

2. It was his duty to notify Polarbas that they should

make sure that the fishermen who entered the launch

were wearing survival suits.

3. It was his duty to bring along a portable radio set in

the dinghy they used so that they could communicate.

4. It was his duty to ensure that the nurse brought along

medical equipment and was present throughout the

operation.

5. It was his duty to ensure that the patient had the

necessary survival equipment when they took him on

board the station's dinghy.

6. It was his duty to notify the Second-in-Command at the

Jan Mayen station that he rowed out to sea without

communication equipment.

7. It was his duty, once he had chosen to use the rubber

dinghy, to ensure that the chief engineer was attached

to it by a line. Moreover he ought to have returned to

the beach at an earlier time when he understood that

the launch did not intend to approach them.

As for the instructions applying to Jan Mayen, which

according to the prosecutor were infringed several times,

the Court has the following comments. The instructions are

very restrictive, applying also to the employee's leisure

time, and to military as well as civilian employees. The

instructions which impose a number of duties on the

personnel on Jan Mayen are, however, very difficult to

understand. The Court refers in particular to C 14 of the

instructions which provide general rules regarding

movements on and around Jan Mayen where its section 1:

Purpose, provides that `these rules are general and are

intended for guidance (underlined by the Court) during

traffic on and around Jan Mayen, both while on duty and off

duty'. Section 2: Traffic at Sea then provides in its first

paragraph `boat trips at sea around Jan Mayen without the

support of a seagoing vessel are, in general, prohibited'.

The penultimate paragraph of this article provides that

`these provisions apply to all personnel on Jan Mayen,

...'. The Court finds it odd that the introductory

provision states that the instructions are intended for

guidance and then already in the next section imposes a

number of prohibitions and requirements. Moreover, the

Court notes that relations with the fishing fleet are not

mentioned at all in the instructions. This despite the fact

that Jan Mayen has for many years taken in injured

fishermen etc. from the fishing fleet when they have had a

possibility of assisting. Many of the provisions applying

to traffic at sea are written with a view to the

circumstances applying in the discharging and loading of

supply vessels. The Court considers accordingly that the

existing instructions are applicable to rescue operations

only to the extent that the instructions are appropriate.

As regards items 2 to 7 set forth above by the prosecutor,

the Court notes with respect to item 2 that the defendant

apparently did not have a duty to notify the captain or

other person in charge of Polarbas that the fishermen who

entered the launch were to wear survival suits. It is the

captain of Polarbas who would be responsible for personnel

on board Polarbas and its launch and it would be reasonable

for the defendant to assume, without explicitly mentioning

it, that the general safety rules were being observed. It

has also been testified in Court that the personnel who

entered the launch were requested to put on survival suits,

yet chose not to do so. As for item 3 above that they ought

to have brought along a radio transmitter in the rubber

dinghy, this matter was considered by the defendant on the

beach before they entered the dinghy. In view of the fact

that the radio transmitter had become wet in the dinghy

during an operation the day before, and therefore did not

work, the defendant decided to let nurse K.R. keep the

radio transmitter ashore. The Court considers that it would

have been an advantage if they had brought along a radio

transmitter in the rubber dinghy so as to be able to stay

in touch both with Polarbas and with people on the shore

and if necessary also with the launch. The Court does not,

however, find that the failure to do so constitutes a

breach of any duty under C 14 of the instructions since the

provision of section 2 is that there shall preferably be

radio contact between shore and ship, but that in the

absence of radio communications, continuous eye contact

must be maintained. Botten and S intended, however, only to

row some 40 to 60 metres out from the beach and one should

therefore assume that continuous eye contact would be

sufficient. As for item 4 one cannot blame the defendant

for the fact that the nurse did not remain on the shore

throughout the operation. The Court is satisfied that

Botten did not know that she had returned to the station to

fetch his camera. Moreover, the Court is satisfied that he

did not order her to fetch the camera. Anyway, her absence

was quite short, only a few minutes. The defendant knew,

however, that nurse K.R. did not bring along first aid

equipment to the shore. In that respect therefore, there is

a breach of the instructions B 14 section 3.6. The Court

points out, however, that there are no serious violations

of the instructions. The purpose on this occasion was

merely to fetch a fisherman who was suffering only from a

wrist injury and it would moreover take only a short time

to go up to the station buildings to collect the necessary

equipment. As for item 5 the Court disagrees that the

defendant had any obligation to ensure that (the fisherman)

was wearing survival equipment when they transferred him to

the rubber dinghy. The Court takes into special account the

situation of the launch at that moment. Its engine had

broken down and it was drifting with the sea anchor out.

Despite the sea anchor, the launch was drifting towards the

rocks and the people on board were apprehensive. The radio

equipment in the launch had been damaged. Nor were there

any oars in the launch. In view of the serious situation of

the launch, the Court cannot see that the defendant had any

choice but to take the fisherman over to the dinghy even

though he was not wearing a survival suit. Nor does the

Court find any breach of duty on the part of the defendant

under item 6. The Second-in-Command knew that the Commander

was going down to Båtvika and that they were to bring

ashore an injured fisherman on that day. The Court cannot

see that the instructions B 1.1.5 impose any explicit duty

on the Station Commander to declare formally to the Chief

of Electronics that he intended to go out in a rubber

dinghy close to the shore in Båtvika. As for item 6, the

Court agrees in principle with the prosecutor that it was

unsafe to row the rubber dinghy right out to the launch.

However, the Court takes into account that the defendant

and S, while on their way, admittedly after they had passed

the point where they had intended to meet the launch but

while they were still in fairly calm waters, discovered

that there were problems on board the launch. Accordingly,

the Court cannot see here either that the defendant

committed any breach of the instructions since it was

highly probable, and gradually quite obvious, that the

launch was in a critical situation. It is furthermore clear

that neither Botten nor the Chief Engineer were attached by

lines to the rubber dinghy. The Court cannot see, however,

that it would be any absolute advantage to be attached to

the dinghy since they would in that case not have had any

possibility of swimming ashore. The defendant and S were

wearing survival suits and these are intended to keep them

both afloat and warm.

As for item 1 that the defendant had a duty to use the

dorry rather than the rubber dinghy, the members of the

Court take different views. Assessor T.H. considers that

C 14 section 2 of the instructions provides an obligation

for the defendant to use the dorry, since section 2

penultimate paragraph of the instructions provides that

this rule applies to all personnel on Jan Mayen. The

President of the Court considers that C 14 section 2 which

applies to traffic at sea must be applied wherever

appropriate. Regarding this special case where the

defendant was to take ashore a fisherman with an injured

wrist, the President cannot find any circumstances which

should justify setting aside the general obligation to use

the dorry. The operation was not conducted under such heavy

pressure that this provision could be set aside. Assessor

T.K. is of the opinion that the provision does not apply in

a rescue operation of this kind and that the matter must

therefore be evaluated in terms of general requirements of

diligence.

Assessor T.H. feels that the breach of this provision under

the very special weather conditions which exist in the

ocean area off Jan Mayen is so serious that it qualifies as

"neglect or carelessness" in terms of section 78,

subsection 1, of the Military Penal Code. He has therefore

come to the conclusion that the defendant should be

convicted for violation of section 78, subsection 1, of the

Military Penal Code.

The President of the Court is of the opinion that even if

these instructions have been disregarded, it is necessary

in relation to section 78, subsection 1, of the Military

Penal Code to consider whether the choice made by the

defendant was worse than if he had chosen the dorry. If

this is not so, a violation of these instructions cannot be

described as neglect or carelessness. The majority of the

Court (Assessor T.K. and the President) have come to the

conclusion that the use of the rubber dinghy instead of the

dorry did not lead to reduced safety considering the

purpose which the boat was originally supposed to serve.

Particular account is taken here of the fact that the

parties had agreed to meet close to the beach. Although the

meeting point had not been exactly agreed, one must at

least accept that they did not intend to go much farther

out than about 100 metres from the beach. In this area the

waters are calm. Moreover, reference is made to the

testimonies of the prosecutor's expert witness

Commander A.H.K. He testified in Court that he saw no

safety problems in using the rubber dinghy in Båtvika or

just outside provided it was kept away from breakers or

wave peaks. As long as one stayed in the middle of Båtvika

or on the lee side he felt that there was no problem about

using the dinghy. Nor would he have any hesitation about

using the dinghy to receive a person from another boat. He

furthermore testified that there is less risk of injury in

transporting a person from a boat to another when the

latter is a rubber dinghy, and he felt that a rubber dinghy

would be preferable to a dorry for that purpose. As for the

fact that the dinghy was not fully pumped up, he declared

that the dinghy is better to use if not fully inflated. Nor

does this reduce the dinghy's seaworthiness.

The majority of the Court agrees with the minority that the

essential point in this case is whether there was a duty to

use the dorry and whether any breach of this duty led to

reduced safety. The Court majority has accordingly come to

the conclusion that such is not the case and that the

defendant should therefore be acquitted, the Court majority

not finding him guilty of neglect or carelessness as

described in the charge."

29. The public prosecutor of Norland asked the Supreme Court

(Høyesterett) for leave to appeal against this judgment. The request

was based firstly on points of law. The prosecutor submitted that the

judgment of the City Court was based on too strict requirements as

regards the statutory conditions for neglect. The prosecutor further

submitted that the facts as established by the City Court were

sufficiently clear to allow the Supreme Court to convict the applicant,

instead of quashing the judgment and referring the case back for a new

trial in the City Court.

30. Alternatively, the prosecutor submitted that the grounds of the

judgment of the Court were incomplete and that therefore the judgment

of the City Court should be quashed.

31. Leave to appeal was granted by the Appeals Selection Committee

of the Supreme Court (Høyesteretts Kjæremålsutvalg) on 20 April 1989.

On 27 April 1989 the applicant was informed by the Supreme Court of

this decision and of the fact that the President of the Court had

appointed counsel for him in accordance with his wishes. The applicant

was furthermore informed that, in so far as he had information of

relevance to the case which was not already in the file, he should

contact his counsel. Finally, he was informed that the case would be

dealt with as soon as possible without further notice to him.

32. The date of the hearing in the Supreme Court was decided by the

office of the Court after consultation with the prosecutor and the

applicant's counsel.

33. Counsel informed the applicant of the date of the hearing. He was

also informed that his presence was neither expected nor necessary.

Furthermore, counsel informed him that he would be allowed to make a

statement if he so wished, but that he would not be heard either as a

party or as a witness. Counsel further told the applicant that it was

very unusual and not in accordance with practice that a defendant made

personal statements before the Supreme Court in connection with an

appeal. Accordingly, the applicant chose not to apply to the Supreme

Court for permission to make a statement.

34. An extract to be used in the Supreme Court was prepared by the

prosecutor and a copy thereof was sent to the applicant's counsel well

in advance of the hearing in the Supreme Court. Counsel made no

objections to the extract and made no further submissions.

35. The case was heard in the Supreme Court on 20 June 1989. The

applicant was not present, but his counsel was there and could reply

to the oral submissions of the prosecutor in regard to the questions

at issue, i.e. the application of the law and, in the alternative, the

alleged procedural errors. The Supreme Court could not, however,

re-examine the facts and no witnesses or experts were heard. It had at

its disposal a 112 page extract containing the documentary evidence

used in the City Court, certain court transcripts and the City Court

judgment.

36. The Supreme Court pronounced judgment on 27 June 1989. In the

judgment Judge Dolva stated on behalf of a unanimous Court as follows:

(translation)

"I consider that the appeal regarding the application of

the law should be allowed and that the conditions for a

re-examination of the case under section 362, subsection 2,

of the Criminal Procedure Act (straffeprosessloven) have

been satisfied.

...

The decisive question in the case is ... whether the

conduct of the person indicted in relation to the operation

to bring the injured party ashore and the preparations that

were made for this, represents negligence or carelessness

under section 78, subsection 1, of the Military Penal Code.

As ground for this it has been asserted that he failed to

comply with the instructions in force on several points, as

described in detail in the writ. In the ruling handed down

by the City Court, seven factors are mentioned which, taken

together, allegedly represent negligence. A number of these

points have not been upheld in the Supreme Court.

The instructions which apply on Jan Mayen are

comprehensive. This should be seen in the light of the

demanding conditions under which service there is carried

out. I would indicate that, in the preface to the

instructions for Jan Mayen published in August 1986 by the

telecommunications and data service of the Ministry of

Defence, and which are applicable in the present case, it

is stated that: `On Jan Mayen, where there are constant

changes of staff, written guidelines are more essential

than elsewhere.'

Central to this case are the `General provisions regarding

movement on and around Jan Mayen', which are contained in

the instructions referred to. Section 1 of the provisions

states, under the heading `Purpose', that `These provisions

are general ones and are intended to serve as guidelines

for movement on and around Jan Mayen, both on official duty

and in leisure time'. Even though, in the introduction, the

instructions thus claim to contain `guidelines', it is

nevertheless clear that, to some extent, they contain

binding rules, cf. the following section 2, Movement at

Sea, the first paragraph of which states that: `Boat trips

at sea around Jan Mayen without the support of a seagoing

vessel are, in general, prohibited', but where, in the

ensuing lines, certain exceptions to this are listed. Let

me make it clear that the provisions on movement at sea

must patently cover the operation that was set in motion

with a view to collecting the injured fisherman, even

though it was clear that the transfer was to take place

relatively close to the shore. I also find it self-evident

that the provisions must also apply to the operation to

bring the injured party ashore, even though assistance to

the fishing fleet is not mentioned here or anywhere else in

the instructions for Jan Mayen.

Section 2 of the provisions contains the following two

subsections:

` - Ensure that both dorries are used on trips where

another boat is not in the vicinity of the island or

that another boat has been made ready to assist should

this be needed.

- When the weather is deemed to be satisfactory, the

second dorry may be replaced by a rubber dinghy, which

can be taken on board the dorry or towed behind it'.

In my view it is clear from the rules that the use of a

dorry is mandatory on an occasion such as the one we are

concerned with here, and that a rubber dinghy cannot be

substituted for a dorry in such circumstances. Although a

rubber dinghy can be used in certain circumstances, this is

only as a contingency. I therefore concur with the

President of the City Court and one of the judges who -

admittedly on somewhat different grounds - found that the

provisions do contain an obligation for the person indicted

to use a dorry instead of a rubber dinghy.

However, the President of the Court was of the opinion

that, even if these instructions had been infringed,

it nevertheless had to be determined, in relation to subsection

1 of section 78 of the Military Penal Code, whether the solution

the person indicted opted for was worse than if he had used a

dorry. If this is not the case, then violation of this

instruction cannot be characterised as negligence or

carelessness.

I do not agree with this understanding of the law.

In my opinion, the obligation to use a dorry is of such

importance in the provisions regarding movement on and

around Jan Mayen that the President's assessment of the

case referred to above is inadequate. In my view,

experience shows that it is essential to respect this

obligation, whose purpose is to protect life and health in

an area with very special weather conditions and in

difficult waters, and that it is therefore particularly

important for the instructions to be followed on this

point. Consequently, the assessment of the case by the

President of the City Court cannot be decisive as regards

determining whether there was negligence.

Also, the second judge, who, together with the President of

the City Court, constituted the majority which voted in

favour of acquittal, in reaching this conclusion based

herself on an incorrect application of the law. In her

view, the obligation to use a dorry did not apply `in a

rescue operation of this kind, and the matter must

therefore be evaluated in terms of general requirements of

diligence'. In her view, there was no obligation to use a

dorry, and thus no negligence under subsection 1 of

section 78.

The majority in the City Court - the President of the Court

and the second judge - found that the use of a rubber

dinghy instead of a dorry did not, in this instance, entail

less safety in relation to what the rubber dinghy was

originally supposed to be used for, in other words, to

collect the injured fisherman from the small seine boat

belonging to the shrimp trawler not `much more than about

100 metres from the shore'. But, according to the

regulations, this is not conclusive.

The acquittal of the person indicted is therefore based on

an incorrect application of the law. However, in the case

at issue, this should not lead to the setting aside of the

ruling by the City Court, since I concur with the statement

by the prosecuting authority in the notice of appeal to the

effect that the case needs to be re-examined under the

second paragraph of section 362 of the Criminal Procedure

Act. I refer here to the City Court description of the

factual circumstances of the case.

I further refer to my earlier comments on the background to

and precise content of the provisions relating to movement

on and around Jan Mayen, and in particular to the

obligation to use a dorry. In the difficult conditions

prevailing on the island, it is particularly important for

rules of this type to be observed. The person indicted must

be reproached for deciding to use the rubber dinghy on that

occasion and acting on that decision regardless of what was

laid down in the instructions. However, I should make it

clear that, in the later phases of the operation, when it

transpired that the persons in the light seine boat

belonging to the shrimp trawler coming to meet the person

indicted were in danger, the situation was different.

However, even what occurred in the earlier phases is in my

view such a serious matter that it must be regarded as

negligence under subsection 1 of section 78. I would point

out that counsel for the defence in the Supreme Court has

asserted that the obligation to use a dorry could not apply

when the shrimp trawler had sent out a small seine boat. I

do not find that this can be held to possess decisive

importance here, since it transpires from the ruling of the

City Court that, on that occasion, the rubber dinghy was

not used exclusively as a contingency. Nor could the person

indicated know whether the small seine boat belonging to

the shrimp trawler was adequately equipped, which later

turned out not to be the case.

As already indicated, the prosecuting authority also

adduced other facts which, in its view, represent a

violation of the applicable instructions. Some of the facts

brought before the City Court were not upheld in the

Supreme Court.

However, the prosecuting authority persisted in its view

that the instructions were violated insofar as the person

indicted neglected to take along a portable radio set in

the boat, cf. section 4 of the regulations governing

movement, which relates to `Instructions for the safety of

persons or goods during ship-to-shore and shore-to-ship

transportation'. I would point out here that a portable

radio set is only mentioned in section 4 b in a list of

safety equipment, after an introduction stating that: `To

guarantee contact with the float/dorry and the supply ship,

the equipment required is as follows: ...'. I concur with

the City Court that there is no violation of the

instructions here and would refer to the City Court's

justification of this ... .

I am also unable to see why the person indicted had an

obligation to make contact in advance with the shrimp

trawler to ascertain that the patient had a life jacket. In

my view, issues relating to the patient's safety equipment

were at that time a matter for the captain of the vessel.

When the patient was later transferred to the rubber dinghy

from the small craft belonging to the trawler, the

situation was so critical that this matter was no longer

relevant.

The City Court was unanimous in concluding that the fact

that the duty nurse did not have first aid equipment on

shore, and that the person indicted was aware of this,

constituted a violation of the instructions. This is also

my view. However, it is the failure to use a dorry in

bringing the patient ashore that is decisive where

subsection 1 of section 78 is concerned.

In sentencing the person indicted, I find that a suspended

prison sentence of 20 days is reasonable, with two years'

probation, and an additional unconditional fine of

5,000 crowns or 15 days' prison. In deciding on this

sentence, my prime consideration has been that fact that it

is exclusively the conduct of the person indicted during

the early phases of the operation to bring the injured

party ashore that he can be reproached for."

37. The above Supreme Court judgment was final.

B. Relevant domestic law

38. Section 78, subsection 1, of the Military Penal Code of

22 May 1992 reads as follows:

(translation)

"A person exercising command who is guilty of neglect or

carelessness in the performance of his official duties,

shall be punished with arrest or with loss of commission or

with detention for a term not exceeding six months."

39. The appeal system in criminal cases is governed by Act No. 25 of

22 May 1981 relating to Legal Procedure in Criminal Cases (the Criminal

Procedure Act). It entered into force on 1 January 1986 and applies to

all penal cases, including those covered by the Military Penal Code of

22 May 1902.

40. Criminal cases start in the District Court (herredsretten) or the

City Court (byretten), cf. Chapter 22 of the Act. In individual cases

these courts are composed of one professional judge, who presides over

the proceedings, and two lay judges (section 276).

41. The proceedings during the main hearing in the City Court are

oral (section 278). The person indicted (tiltalte) has the right to be

present (cf. sections 280-282). The court shall in its official

capacity see to it that the case is fully clarified (section 294).

Written evidence shall be read out by the person producing the evidence

unless the court decides otherwise (section 302). After the examination

of each individual witness and after the reading out of each piece of

written evidence, the person indicted should be given an opportunity

to speak (section 303).

42. When the production of evidence (bevisførelsen) is completed, the

prosecutor and then defence counsel may make a speech. Each of them is

entitled to speak twice. When defence counsel has finished, the person

indicted shall be asked whether he has any further comment to make

(section 304). In deciding what is deemed to be proved, only the

evidence produced at the main hearing shall be taken into consideration

by the court (section 305).

43. When the person charged is convicted the grounds of the City

Court judgment concerning the question of guilt shall, in accordance

with section 40 of the Criminal Procedure Act, specifically and fully

state the facts of the case which the court has found to be proved as

a basis for the judgment and shall refer to the penal provision

pursuant to which the person charged has been convicted. When the

person charged is convicted, the grounds of the judgment shall also

state the reasons to which the court has attached importance in

determining the penalty and other sanctions. Information about previous

convictions or waivers of prosecution shall only be included to the

extent that they affect the judgment. If the person charged is

acquitted, the grounds of the judgment shall, in accordance with the

same provision of the Criminal Procedure Act, state which conditions

for a finding of guilt are deemed to be unfulfilled, or the

circumstances which exclude a penalty or any other sanction which has

been demanded.

44. Judgments of the District or City Court are subject to two kinds

of review in criminal cases: appeal to the Supreme Court (Chapter 24)

or new trial by the High Court (lagmannsretten) (Chapter 25). The

choice between these remedies depends upon the aspects of the judgment

which are contested before the second instance.

45. Appeal (anke) to the Supreme Court is the judicial remedy

available with one exception. Error in the assessment of evidence in

relation to the question of guilt (bevisbedømmelsen under skyld-

spørgsmålet) cannot be a ground for appeal (section 335), but for a new

trial. Consequently, appeal is the relevant remedy in relation to any

alleged defects concerning the application of the law with regard to

the question of guilt (rettsanvendelsen under skyldspørgsmålet), the

application of rules of procedure (saksbehandling), and the

determination of sanctions (avgjørelsen av reaksjonsspørgsmålet), for

instance the meting out of the penalty (straffutmåling).

46. Both parties may lodge an appeal against a judgment of the

District or City Court (section 335). A person acquitted may not appeal

unless the court has found it proved that he committed the unlawful act

referred to in the indictment (section 336). The prosecuting authority

may appeal in favour of the person charged (section 338).

47. The time-limit for an appeal is two weeks from the date on which

judgment is delivered (section 339). If one party appeals, the other

party may appeal as well within one week (section 340).

48. The notice of appeal shall state, inter alia, whether the appeal

relates to procedure, the application of the law with regard to the

question of guilt, or the decision concerning a penalty (section 343).

If the appeal is against the application of the law, the notice of

appeal should also state the alleged error and the alteration demanded.

49. The notice of appeal and other documents of the case are sent to

the Appeals Selection Committee of the Supreme Court, which will

examine whether the appeal has been lodged in time and otherwise

fulfils the legal requirements (sections 345 - 348). An appeal shall

not be allowed to proceed when the Appeals Selection Committee

unanimously finds it clear that it will not succeed (section 349).

Under certain circumstances the Committee may determine an appeal

against a judgment of the District or City Court (section 350). If the

appeal is not decided according to these provisions, it shall be

referred to appeal proceedings in the Supreme Court (section 352).

50. The appeal proceedings shall be prepared and carried out

according to the rules applicable to the hearing at first instance in

so far as such rules are appropriate and it is not otherwise provided

(section 352).

51. Defence counsel shall be appointed immediately when an appeal is

referred to appeal proceedings. The person charged shall at the same

time be informed of the appointment and that he may get in touch with

defence counsel if there is anything he wishes to have submitted. He

shall also be informed that the case will be heard in the Supreme Court

as soon as possible, and that he will not be summoned to attend the

hearing (section 353). It will then be for the defence counsel to

assess whether the accused, in his own interest, should be present.

52. The Supreme Court shall send the documents relating to the case

to the appellant with an order to forward the documents to the opposite

party within a fixed time-limit. It will normally be for the party

having lodged the appeal to prepare the extracts of the documents of

the case (section 354).

53. For the hearing the Supreme Court is composed of five justices.

The proceedings are oral and public and both parties are allowed to

speak twice. The appellant is entitled to address the Court first. The

person charged may be allowed to address the Court during the hearing

(section 356). Evidence is submitted to the Court by reading out from

the documents relating to the case (section 357).

54. Sections 359 et seq. regulate the competence of the Supreme

Court. Of particular relevance to the present case is section 362 which

reads as follows:

(translation)

"If the Court finds no reason to alter or set aside the

judgment appealed against, the appeal shall be dismissed by

court order. In the alternative the Court shall pronounce

a new judgment if the necessary preconditions are

fulfilled; otherwise the judgment appealed against shall be

set aside by court order."

55. When deciding whether the "necessary preconditions are

fulfilled", the Supreme Court will focus upon whether the material in

the judgment appealed against is sufficient to render a new decision

on the merits. Case-law under section 362 confirms that the Supreme

Court is cautious in pronouncing a new judgment if the facts of the

case are contested or unclear.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

56. The Commission has declared admissible the applicant's complaint

that he did not have a fair hearing in the determination of the

criminal charge against him.

B. Point at issue

57. Accordingly, the Commission is called upon to consider whether

there has been a violation of Article 6 (Art. 6) of the Convention.

C. As regards Article 6 (Art. 6) of the Convention

58. Article 6 (Art. 6) 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. ...

2. Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law.

3. 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;

..."

59. In his submissions to the Commission the applicant maintains that

in the determination of the criminal charge against him he was not

afforded a fair trial, in particular having regard to the proceedings

before the Supreme Court. He submits in this respect that the system

in Norway with the Supreme Court as the ordinary second instance in

criminal cases is unique and based on historical reasons which in

recent years have demonstrated that it is no longer a satisfactory

arrangement. As regards its application in the present case the

applicant contends there are in particular three elements of

importance: the possibility of the applicant's participation in the

proceedings before the Supreme Court, the scope of review of the Court

and, finally, the Court's power to change the lower court's judgment

to his detriment.

60. As regards the first point the applicant submits that he was

charged with having violated section 78 of the Military Penal Code

which carries the penalty of arrest, loss of commission or detention

for a maximum period of six months. Accordingly, the case did not

concern only minor issues. Furthermore, the Supreme Court did not have

any records or transcripts from the hearing in the City Court but had

to rely on the summary prepared by the prosecution, being the

appellant, and the City Court judgment. In addition the Supreme Court

had to determine issues under section 78 of the Military Penal Code in

respect of "neglect" and "carelessness" which in themselves carry

elements of a subjective nature and, finally, as it turned out, the

Supreme Court had to determine the sentence to be imposed.

61. Regardless of this the applicant points out that he was not

summoned to appear in the Supreme Court. Furthermore, even if he had

decided to attend he would not appear as a party but would have had to

join the public. He would have had no right to speak or testify and

since 1945, so the applicant contends, the Supreme Court has only

allowed an accused to speak on two occasions, something which indicates

that the applicant could not under Norwegian legal practice be expected

to attend the hearing and address the Court.

62. As regards the second point, i.e. the scope of review, the

applicant submits that the fact that the Supreme Court has no

competence to review the facts is tainted by an inherent deficiency in

the grounds set out in the judgment of the lower court. The Supreme

Court has to rely on these grounds but the requirements under section

40 of the Criminal Procedure Act as regards the reasons for the

judgment are different for convictions as opposed to acquittals in that

a convicting judgment shall, with regard to the question of guilt,

specifically and fully state the facts of the case which the court has

found to be proved as a basis for the judgment, whereas it is

sufficient for an acquittal that the grounds for the judgment state

which requirements for a finding of guilt are deemed to be unfulfilled

or which circumstances are deemed to exclude a penalty. Thus the

applicant maintains that as a rule, and certainly in this case, the

Supreme Court would have had a more complete basis for the review had

he been convicted by the City Court.

63. As regards the third point, i.e. the question of reversing the

acquittal, the applicant points out that this amounts to a change of

the lower court's judgment to the detriment of the accused by a court

which does not hear him and which does not have the full competence to

review the case. Although the case-law of the Convention organs

indicates that the presence of an accused is not always necessary in

appeal proceedings, these cases all concern situations where the

accused had been convicted in the first instance and where there was

a prohibition against reformatio in pejus. Furthermore, a review as in

the present case also involves the determination of sentence which

accordingly was also done without the Supreme Court having seen or

heard the applicant. However, section 78 of the Military Penal Code

involves, as indicated, questions of neglect and carelessness where the

personality and character of the accused would be elements of

importance for the meting out of a sentence.

64. With reference to the above the applicant considers that, having

regard to the entirety of the proceedings, he did not receive a fair

trial within the meaning of Article 6 (Art. 6) of the Convention.

65. The Government point out that the Criminal Procedure Act had

contained, since 1917, a provision empowering the Supreme Court to

pronounce a new judgment only when the question of guilt in the lower

court had been decided against the accused. This was, however, soon

considered to be going too far as it added materially to the costs, to

the burden on the judicial system and delayed the final determination

of the case, something which had a clear bearing on the right to a

trial within a reasonable time. The present Criminal Procedure Act,

which entered into force in 1986, sought to correct this by adopting

the present wording of section 362 of the Act. The jurisprudence of the

Supreme Court has subsequently confirmed that a high degree of caution

is exercised in pronouncing a new convicting judgment, in particular

in case the accused objects. Thus, had the applicant in the present

case had the slightest hesitation against the Supreme Court pronouncing

a new judgment there is every reason to believe that the Court would

have taken that into account. He did not, however, express any such

hesitations and it was not for the Supreme Court to override that

choice.

66. In the present case the Government note that the applicant was

not present in the Supreme Court. However, although he was not

summoned, his defence counsel had been consulted in the matter of

fixing the date and the applicant did indeed have the possibility of

attending the hearing if he had so wished as this is an unconditional

right. Furthermore, he could have asked for leave to address the Court.

The applicant, however, after consultation with his counsel, decided

not to avail himself of these possibilities and this cannot, so the

Government contend, amount to a deficiency in the Norwegian system of

criminal procedure.

67. The Government also maintain that given the fact that the

applicant was heard during the public hearing held at first instance,

it is well-established case-law that appeal proceedings solely

involving questions of law may comply with the requirements of

Article 6 (Art. 6) although the applicant was not given an opportunity

of being heard in person by the appeal court. The right to a trial

within a reasonable time and the related need for expeditious handling

of the court's case-load must also be taken into consideration and the

national authorities enjoy a margin of appreciation in this area. Thus

the right of the applicant to defend himself in person at a hearing

before the appellate court depends on a closer assessment of the

procedure in question.

68. As regards the scope of review the Government agree that the

Supreme Court in considering appeals - regardless of whether by the

prosecution or by the defence - is bound by the findings of facts of

the lower court regarding evidence in relation to the question of

guilt. However, the facts presented to the Supreme Court in the

concrete case were established in a way which is beyond reproach and,

furthermore, these facts have not been disputed by the applicant. The

Supreme Court convicted the applicant on the basis of these undisputed

facts and acted on this basis and on its own legal assessment. The

Supreme Court found that the failure to comply with the standing

instructions for movement around Jan Mayen constituted neglect and this

finding was entirely independent of the motives for the failure to

comply, or of any link of causality between that failure and subsequent

events. The failure to comply was evident and admitted, and clearly set

out in the City Court judgment. Thus owing to the fact that the Supreme

Court's review only involved questions of law - save for the question

of sentencing - the Government maintain that Article 6 (Art. 6) did not

require that the applicant be summoned to attend the hearing. The

pronouncement of a new, convicting, judgment by the Supreme Court

cannot, in the Government's view and having regard to the above, be

held to imply any absence of fairness under Article 6 (Art. 6) of the

Convention.

69. As regards the question of sentence the Government maintain that

even if the applicant were not present in person at the hearing in the

appeal court reformatio in pejus is not in principle contrary to his

rights deriving from Article 6 (Art. 6). They maintain that the

application of this provision still depends on the special features of

the proceedings involved and the manner in which the defence's

interests were presented and protected. In the present case the

question of sentencing did not involve any assessment of the

applicant's character, state of mind or motive, and the sentence was

lenient. In this respect too the need to terminate the case without

undue delay must be taken into account. Accordingly, assessed in the

light of the special features of the appeal proceedings these did not,

in the Government's view, amount to an interference with the

applicant's right to a fair trial. The Government thus consider that

there has been no violation of Article 6 (Art. 6) of the Convention.

70. As a point of departure the Commission has noted the parties'

references to the particular appeal system in Norway and its historical

background. The Commission notes that different rules govern review by

a higher tribunal in the various member States of the Council of Europe

and it is not for the Commission to express itself in general on the

system chosen by Norway. Thus, without losing sight of these general

aspects the Commission recalls that its task is not to review the

relevant domestic law and practice in abstracto, but to determine

whether the manner in which it was applied to or affected the applicant

gave rise to a violation of Article 6 para. 1 (Art 6-1) of the

Convention (cf. for example Eur. Court H.R., Hauschildt judgment of

24 May 1989, Series A no. 154, pp. 21, para. 45).

71. The applicant has referred not only to Article 6 para. 1 but also

to paras. 2 and 3 (Art. 6-1, 6-2, 6-3) of this provision. In this

respect the Commission recalls that the guarantees in paras. 2 and 3

are specific aspects of the right to a fair trial set forth in para.

1 (cf. inter alia, Eur. Court H.R., Unterpertinger judgment of

24 November 1986, Series A no. 110, p. 14, para. 29). Accordingly, the

Commission will have regard to them when examining the facts under

para. 1 of Article 6 (Art 6-1). The Commission further recalls that it

must consider the proceedings as a whole. Its task is to ascertain

whether the proceedings in their entirety were fair (cf. for example

Eur. Court H.R., Stanford judgment of 23 February 1994, Series A no.

280-A, para. 24). It follows that the Commission must examine the

question of fairness on the basis of the proceedings in the City Court

as well as the proceedings in the Supreme Court. This also follows from

the fact that the guarantees of Article 6 (Art 6) continue to apply to

the appeal proceedings where the opportunity to lodge an appeal in

regard to the determination of a criminal charge is provided for under

domestic law, since those proceedings form part of the whole

proceedings which determine the criminal charge at issue (cf. for

example Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,

Series A no. 115, p. 21, para. 54).

72. With regard to the proceedings at first instance, it follows from

the notion of a fair trial that a person charged with a criminal

offence should, as a general principle, be entitled to be present at

the trial (cf. for example Eur. Court H.R., Colozza judgment of

12 February 1985, Series A no. 89, pp. 14-15, paras. 27 and 29).

Furthermore, the Commission considers that the trial court should have

the competence to rule on all aspects of the criminal charge in

question. In the present case these requirements were satisfied. The

City Court determined the criminal charge brought against the applicant

only after it had held a public hearing at which the applicant

appeared, gave evidence and argued his case.

73. However, the proceedings in the Supreme Court were different. In

these proceedings the Supreme Court appointed counsel for the applicant

in accordance with his wishes but, pursuant to section 353 of the

Criminal Procedure Act, he was not summoned to appear and he had in

these proceedings no general right to speak. Had he nevertheless chosen

to appear, he might have been allowed to speak with leave from the

Court (cf. section 356). The Commission further recalls that the

Supreme Court had no competence to examine the facts established by the

City Court but was called upon to determine solely questions of law

and, as it turned out, the question of sentence. The material question

in the present case is accordingly whether the applicant despite the

particularities of the proceedings in the Supreme Court received a fair

trial within the meaning of Article 6 (Art. 6) of the Convention.

74. As regards the applicant's presence in the Supreme Court the

European Court of Human Rights has on a number of occasions held that,

provided that there was a public hearing at first instance, the special

features of the appeal proceedings at issue might justify the absence

of the accused during the appeal. Thus, leave-to-appeal proceedings and

proceedings involving questions of law, as opposed to questions of

fact, have been held to comply with the requirements of Article 6

(Art. 6) although the accused was not heard by the appeal or cassation

court (cf. the above-mentioned Monnell and Morris judgment, p. 22,

para. 58 (leave to appeal) and the Sutter judgment of 22 February 1984,

Series A no. 74, p. 13, para. 30 (court of cassation)). In the latter

case the underlying reason was that the court concerned did not have

the task of establishing the facts of the case, but only of

interpreting the legal rules involved. Also the Court found no breach

of Article 6 (Art. 6) in the Axen case (Eur. Court H.R., Axen judgment

of 8 December 1983, Series A no. 72) since the first instance court and

the appeal court had heard the case in public and since the Federal

Court of Justice, which determined solely issues of law, could - short

of holding hearings - only dismiss the appeal on points of law.

75. Likewise the Court has held that Article 6 (Art. 6) was complied

with in cases where the appeal court had the competence to examine both

points of facts and points of law but where the appeal did not raise

any questions of fact or law which could not be adequately resolved on

the basis of the case-file (cf. for example Eur. Court H.R., Fejde

judgment of 29 October 1991, Series A no. 212-E, p. 69, para. 33).

76. In the present case it is undisputed that the applicant had the

right to be present in the Supreme Court when his appeal was being

examined there. In accordance with domestic law, however, he was not

summoned and he had no general right to be heard in person.

Furthermore, it is undisputed that the Supreme Court was bound by the

facts established by the City Court in the determination of the points

of law at issue. Having regard to the above case-law the Commission

does not find these features in themselves to be contrary to Article 6

(Art. 6) of the Convention, but they must be seen in the light of the

other special features of the proceedings in the Supreme Court. In this

respect the Commission recalls that the Supreme Court's powers did not

end with its assessment of the legal issues involved. The Court in

addition concluded that the applicant was guilty of the criminal charge

brought against him and it sentenced him to a suspended sentence of

imprisonment and to a fine of 5,000 Norwegian crowns.

77. The Commission observes that pursuant to section 362 of the

Criminal Procedure Act the Supreme Court was not obliged to pronounce

a new judgment in the case but could do so only if it considered the

necessary preconditions to be fulfilled. In this case the Supreme Court

considered that these preconditions were fulfilled and unlike the City

Court which, due to its acquittal of the applicant, had not expressed

itself on the question of sentence, the Supreme Court imposed such a

sentence which it found appropriate considering that the applicant

could be reproached for his conduct during the rescue operation in

question.

78. As regards the applicant's conviction the Commission recalls that

this was based on the facts established by the City Court. Although

these facts were undisputed as they stood this did not necessarily mean

that they were complete. Even the public prosecutor submitted as an

alternative ground for the appeal that the grounds for the judgment of

the City Court were incomplete. Reversing an acquittal on such a basis,

where the convicting court has no competence to verify these facts and

without hearing the accused, does not appear to the Commission to

comply with the standards of fairness. The Commission considers that

the applicant ought to have been present and heard by the Supreme

Court, in particular as it convicted him for the first time in the

proceedings determining the criminal charge against him.

79. Furthermore, as regards sentencing the Commission and the Court

of Human Rights have on several occasions stressed the importance of

a prohibition against reformatio in pejus when considering whether the

special features of appeal proceedings were in compliance with

Article 6 (Art. 6) of the Convention (cf. for example Eur. Court H.R.,

Jan-Ã…ke Andersson judgment of 29 October 1991, Series A no. 212-B,

p. 46, para. 29, Kamasinski judgment of 19 December 1989,

Series A no. 168, p. 45, para. 107 and Kremzow judgment of

21 September 1993, Series A no. 268, p. 45, paras. 67-69). Having

regard to this the Commission considers that the Supreme Court

proceedings in the present case were of particular importance to the

applicant as their outcome could obviously be to his detriment.

Furthermore, in the light of the fact that the question of sentence was

examined for the very first time in the Supreme Court and did not

involve a fixed or mandatory sentence it was in the Commission's view

also essential to the fairness of the proceedings as a whole that the

applicant be present during the determination of this issue and

afforded the opportunity to express himself.

80. It is true that the applicant could have been present and could

have asked for leave to address the Supreme Court. However, his choice

not to avail himself of these possibilities the Commission considers

to be well in line with established practice in Norway. Furthermore,

the Supreme Court's decision to pronounce a new judgment was optional.

Given the gravity of what was at stake for the applicant, he ought to

have been summoned and the Court was, in the Commission's view, under

a positive duty to ensure his presence when it opted for pronouncing

a new judgment to his detriment in accordance with section 362 of the

Criminal Procedure Act.

81. The Commission has not overlooked the Government's reference to

a need for a judicial system which ensures a final determination of a

criminal charge within a reasonable time and the member States' margin

of appreciation in this respect. However, having regard to the issues

to be decided by the Supreme Court under its limited competence and

their importance to the applicant, the Commission considers that the

desirability of an expeditious handling of a court's case-load does not

constitute a sufficient justification. Thus, looking at the proceedings

in their entirety the Commission finds that they did not satisfy the

requirements of a fair trial.

CONCLUSION

82. The Commission concludes, by sixteen votes to one, that in the

present case there has been a violation of Article 6 para. 1 (Art. 6-1)

of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. French)

DISSENTING OPINION OF M. F. MARTINEZ

Je partage l'avis de la majorité de la Commission lorsqu'elle

affirme que sa tâche ne consiste pas à examiner le droit interne "in

abstracto", mais à déterminer si l'application qui en a été faite dans

le cas d'espèce constitue une violation de l'article 6 par. 1 de la

Convention (vid. rapport par. 70). Cependant, contrairement au

jugement de mes éminents collègues, je ne parviens pas à discerner le

caractère inique de la procédure devant la Cour Suprême norvégienne.

De l'avis de la majorité, trois facteurs d'iniquité sont relevés

en l'espèce :

1. Le requérant n'a pas été entendu par la Cour Suprême;

2. La Cour Suprême n'a pas le pouvoir de réviser les faits

établis par la juridiction du premier degré;

3. En condamnant le requérant, acquitté en première instance,

la Cour Suprême a procédé à une reformatio in pejus.

Pour ma part, j'estime qu'il n'en est rien.

En ce qui concerne la premier constat, la Cour européenne des

Droits de l'Homme a bien établi que, lorsque l'accusé a été entendu

publiquement en première instance, il n'est pas nécessaire que ce

dernier soit présent devant la Cour Suprême notamment lorsque le

contrôle qu'elle exerce porte sur le droit et non sur les faits. Au

demeurant, le requérant disposait de la possibilité de s'adresser à la

Cour, ce qu'il n'a pas fait suivant en cela le conseil de son avocat.

Or, il m'apparaît pour le moins curieux que le requérant se réclame

maintenant d'un droit que, de son plein gré, il n'a pas voulu exercer.

La Commission considère que la Cour se doit de sommer toute personne

qui choisit librement de ne pas demander à assister à l'audience. La

question se pose donc de savoir si la Cour était tenue d'entendre le

requérant malgré lui.

S'agissant du deuxième facteur, les faits étaient pourtant

simples. Alors que la "City Court" avait jugé que, dans les

circonstances de l'espèce, l'emploi d'un "rubber dinghy" n'était pas

constitutif de l'infraction de négligence, la Cour Suprême estima quant

à elle que l'usage d'un "dorry" était indispensable pour ne pas tomber

sous le coup de l'accusation pénale.

En quoi cela serait-ce inique ?

A maintes reprises, une juridiction d'appel ayant pleins pouvoirs

pour réviser les faits n'y apporte pas le moindre changement tout en

les qualifiant différemment en droit.

Enfin il convient de rappeler que la Cour Suprême, bien qu'étant

saisie d'un appel alternatif, s'est contentée d'accueillir l'appel

basé sur une appréciation erronée de la loi.

Pour ce qui est de la reformatio in pejus, il est possible que

je la conçoive différemment de la majorité de la Commission. A mon

sens, reformatio in pejus signifie aggravation de la situation de la

partie qui introduit une voie de recours. Condamner sur appel du

ministère public est quelque chose de normal et répond à l'objet même

d'un tel appel. A cet égard, je renvoie à l'article 2 par. 2 du

Protocole N° 7 à la Convention qui prévoit la possibilité d'être

déclaré coupable et condamné à la suite d'un recours contre son

acquittement.

Ainsi donc, je considère qu'aucun des facteurs retenus par la

majorité, pris isolément ou en combinaison, peut entraîner une

violation de l'article 6 de la Convention.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

22 December 1989 Introduction of application

26 February 1990 Registration of application

Examination of admissibility

11 May 1992 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

2 October 1992 Government's observations

7 January 1993 Applicant's observations in reply

11 October 1993 Commission's decision to hold a hearing on

the admissibility and merits

17 January 1994 Hearing on admissibility and merits of the

case, followed by the Commission's

deliberations and decision to declare the

case partly admissible and partly

inadmissible

Examination of the merits

26 January 1994 Decision on admissibility transmitted to

parties. Invitation to parties to submit

further observations on the merits

2 March 1994 Applicant's observations

3 March 1994 Government's observations

13 May 1994 Commission's consideration of state of

proceedings

11 October 1994 Commission's deliberations on the merits,

final vote and adoption of the Report

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BOTTEN v. NORWAY

BOTTEN v. NORWAY

LEXI