AS TO THE ADMISSIBILITY OF

                      Application No. 16206/90

                      by Harald Ståle BOTTEN

                      against Norway

      The European Commission of Human Rights sitting in private on

17 January 1994, 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

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 J. MUCHA

                 E. KONSTANTINOV

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 22 December 1989 by

Harald Ståle BOTTEN against Norway and registered on 26 February 1990

under file No. 16206/90;

      Having regard to:

-     reports provided for in Rule 47 of the Rules of Procedure of the

      Commission;

-     the observations submitted by the respondent Government on

      2 October 1992 and the observations submitted in reply by

      theapplicant on 7 January 1993, as well as the submissions of the

      parties at the hearing held on 17 January 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the parties, may be

summarised as follows.

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

Oslo. Before the Commission he is represented by Mr. Finn E. Engzelius,

a lawyer practising in Oslo.

A.    The particular circumstances of the case

      In 1987 the applicant, a major in the Norwegian Air Force, 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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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. The applicant was furthermore informed that, in so far

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.

      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.

      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.

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

applicant was not present, but his counsel was there and had the

opportunity to 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. This extract had been prepared by the prosecutor and a

copy had been sent to the applicant's counsel well in advance of the

hearing in the Supreme Court. Counsel made no objections to the extract.

      The Supreme Court, having found that the preconditions for

pronouncing a new judgment pursuant to Section 362 of the Criminal

Procedure Act were fulfilled, pronounced judgment in the case on

27 June 1989. It found that the City Court had applied the law, i.e.

Section 78 of the Military Penal Code, wrongly (uriktig retts-anvendelse)

and that the acquittal was based on this error. The Supreme Court

furthermore found that the facts of the case as established by the City

Court, by which it was bound, disclosed a violation of Section 78 of the

Military Penal Code committed by the applicant. For this offence he was

sentenced to 20 days' detention under guard, which was suspended, and to

a fine of 5,000 Norwegian crowns. No appeal lies against this judgment.

B.    Relevant domestic law

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

22 May 1981 relating to Legal Procedure in Criminal Cases (straffe-

prosessloven), hereafter 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.

      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).

      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 aloud by the person producing the evidence unless the court

decides otherwise (section 302). After the examination of each individual

witness and after the reading aloud of each piece of written evidence,

the person indicted should be given an opportunity to speak (section

303).

      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).

      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.

      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 on 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).

      Both parties may lodge an appeal against a judgment of the District

or City Court (section 335). Any 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).

      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).

      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 error on which the appeal is based, and the

alteration demanded.

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

Appeals Selection Committee of the Supreme Court, which will try the

issue whether the appeal has been made 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 decide 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).

      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).

      Defence counsel shall be appointed immediately when an appeal is

referred. 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.

      The 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).

      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 aloud from the

documents relating to the case (section 357).

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

Section 362 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."

      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 make 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.

COMPLAINTS

      The applicant complains of the fact that he has no right to have his

conviction or sentence reviewed by a higher tribunal, contrary to Article

2 of Protocol No. 7 to the Convention. He maintains that the exceptions

in Article 2 para. 2 do not apply because the Supreme Court was confined

to dealing with points of law and barred from examining the facts of the

case.

      The applicant also complains, under Article 6 of the Convention,

that he did not have a fair trial. He maintains that the Norwegian

Criminal Procedure Act is not based on the principle of a "fair hearing"

because, following an appeal by the prosecution, the acquitted person is

not entitled to have all aspects of the charges against him, i.e. the

facts, examined by the appeal court.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 22 December 1989 and registered

on 26 February 1990.

      On 11 May 1992 the Commission decided to bring the application to

the notice of the respondent Government and to invite them to submit

written observations on its admissibility and merits.

      After an extension of the time-limit the Government's observations

were submitted on 2 October 1992. The applicant's observations in reply

were submitted on 7 January 1993, also following an extension of the

time-limit fixed for that purpose.

      On 11 October 1993 the Commission decided to invite the parties to

appear before it at a hearing on the admissibility and merits of the

case.

      At the hearing, which was held on 17 January 1994, the parties were

represented as follows:

The Government:

Mr. Per Tresselt, Consul General in Berlin, Agent

Mr. Helge Røstad, former judge of the Supreme Court, counsel

Mr. Tor-Geir Myhrer, Office of the Public Prosecution, adviser

Mr. Frode Elgesem, Office of the Attorney General, adviser

Mr. Petter F. Wille, of the Ministry of Foreign Affairs, adviser

The applicant:

Mr. Finn E. Engzelius, counsel

Mr. Johan Hjort, adviser

The applicant was also present.

THE LAW

1.    The applicant complains that he had no right to have his conviction

or sentence reviewed by a higher tribunal. He invokes in this respect

Article 2 of Protocol No. 7 (P7-2) to the Convention which reads as

follows:

      "1.  Everyone convicted of a criminal offence by a tribunal

      shall have the right to have his conviction or sentence

      reviewed by a higher tribunal.  The exercise of this right,

      including the grounds on which it may be exercised, shall be

      governed by law.

      2.   This right may be subject to exceptions in regard to

      offences of a minor character, as prescribed by law, or in

      cases in which the person concerned was tried in the first

      instance by the highest tribunal or was convicted following an

      appeal against acquittal."

      The Commission recalls that the applicant's conviction by the

Supreme Court was final and not subject to any appeal.

      The applicant submits that the exceptions mentioned in the second

paragraph of Article 2 (Art. 2-2) do not apply in his case as the appeal

proceedings in the Supreme Court did not involve a full appeal, the

Supreme Court being competent to examine only points of law and alleged

procedural errors.

      The Commission does not agree with the applicant on this point. It

notes that Article 2 of Protocol No. 7 (P7-2) recognises the right of

everyone convicted of a criminal offence by a tribunal to have his

conviction or sentence reviewed by a higher tribunal. However, under the

second paragraph of the Article (P7-2), an exception is allowed where the

person concerned is convicted following an appeal against acquittal. Such

was the situation in the applicant's case.

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicant also complains that he did not have a fair hearing

within the meaning of Article 6 para. 1 (Art.  6-1) of the Convention

which reads as far as relevant as follows:

      "In the determination of ... any criminal charge against him,

      everyone is entitled to a fair and public hearing ... by an

      independent and impartial tribunal established by law."

      The applicant submits that the Supreme Court, acting within its

competence to review only matters of law and procedure, was bound by the

facts established by the City Court and was not entitled to hear

witnesses, to examine the evidence or to make any visit to the locus in

quo. This is contrary to the basic principle of giving each of the

parties a full opportunity to present the case, both on facts and law.

In the present case this was, in the applicant's view, of particular

importance since the Supreme Court had to consider vague and

discretionary statutory provisions as to whether the applicant's conduct

had been "negligent". The legal and factual questions were thus very

difficult to separate.

      The applicant contends that it is objectionable and contrary to the

principle of a "fair hearing" that the grounds for the acquittal were

used as the basis for a conviction by the Supreme Court. The crucial

point is that the only basis for the judgment of the Supreme Court was

the grounds for the judgment of the City Court. The Supreme Court was

entirely dependent upon these grounds. In the applicant's opinion it is

essential to recall that the appeal by the prosecution was an appeal

against the acquittal. It therefore constituted a continuing

determination of a criminal charge because it related to the

establishment of the applicant's guilt. Accordingly, the procedural

requirements at first instance should also apply in the Supreme Court.

      Furthermore, the applicant points out that he was neither summoned

nor present during the hearing in the Supreme Court. This was, however,

in conformity with the rules of procedure and domestic practice. A

defendant may be allowed to make a statement. However, this cannot be

used as evidence. Accordingly, the right to speak does not imply a right

to give evidence.

      The Government submit in the first place that, since the applicant

did not argue in the proceedings before the Supreme Court that it was

objectionable and against the principle of a fair hearing that the

grounds for the acquittal were used as a basis for his conviction, he has

not exhausted domestic remedies as required by Article 26 (Art. 26) of

the Convention.

      The Government furthermore submit that, although Article 6 (Art. 6)

applies to review proceedings, the way in which it applies depends on the

special features of such proceedings. In the present case the hearing in

the Supreme Court was public and oral, and the applicant had the

opportunity of attending the hearing and addressing the Court. Thus, the

principle of equality of arms was respected. The Government stress that

the fact that a Supreme Court cannot assess the facts, but only review

questions of law, is a common feature in several member States of the

Council of Europe, and it follows from established case-law of the

Convention organs that this is not in itself a violation of the

Convention. The Supreme Court reached its conclusion on the basis of its

general interpretation of the applicable legislation and it would have

made no difference if the applicant had made statements before the Court,

as such statements did not constitute evidence in the procedural sense

of the word.

      As regards the respondent Government's reference to the exhaustion

of domestic remedies, the Commission recalls that under Article 26

(Art. 26) of the Convention it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law. The mere fact that an applicant

has submitted his case to the various competent courts does not in itself

constitute compliance with this rule. It is also required that the

substance of any complaint made before the Commission should have been

raised during the proceedings concerned (cf. for example No. 10307/83,

Dec. 6.3.84, D.R. 37 p. 113).

      In the present case the Commission recalls that the public

prosecutor in his appeal to the Supreme Court submitted, inter alia, that

the facts as established by the City Court were sufficiently clear to

allow the Supreme Court to pronounce judgment in the case instead of

quashing the lower court's judgment and referring the case back for a new

trial in that court. The Commission furthermore recalls that the Supreme

Court in its judgment expressly stated that the preconditions for

pronouncing a new judgment in accordance with Section 362 of the Criminal

Procedure Act were fulfilled.

      In these circumstances the Commission finds that the substance of

the applicant's complaint under Article 6 (Art. 6) of the Convention was

raised and examined during the proceedings concerned. Accordingly, the

Commission does not reject this complaint for non-observance of the

domestic remedies rule.

      As regards the merits of the applicant's complaint under Article 6

(Art. 6) of the Convention, the Commission has taken cognizance of both

parties' submissions. After a preliminary examination thereof the

Commission has reached the conclusion that the case raises serious issues

as to the interpretation and application of Article 6 (Art. 6) of the

Convention and that these issues can only be determined after a full

examination of their merits. It follows that this part of the application

cannot be regarded as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for

declaring it inadmissible has been established.

      For these reasons, the Commission, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the applicant's complaint under Article 6 (Art. 6) of the Convention

      that he did not have a fair hearing;

      DECLARES INADMISSIBLE the remainder of the application.

   Secretary to the Commission      President of the Commission

         (H.C. KRÜGER)                    (C.A. NØRGAARD)