DISSENTING OPINION OF JUDGES RYSSDAL AND GÖLCÜKLÜ

In our opinion there has been no violation of Article 6 para. 1 (art. 6-1) of the Convention in the present case.

As to whether the applicant was guilty of neglect in the performance of official duties (Article 78 para. 1 of the 1902 Military Penal Code) the Supreme Court in its judgment of 27 June 1989 exclusively discussed and decided a question of law based on the facts as set out in the City Court's judgment of 30 March 1989.  As stated by the City Court, and as was undisputed, the applicant used a rubber dinghy during the rescue operation instead of a dory.  The majority of the City Court had acquitted the applicant because, in their opinion, the use of a rubber dinghy did not lead to reduced safety.  The Supreme Court decided that the acquittal was based on an erroneous application of the law because the relevant provision made it obligatory for the applicant to use a dory. The decision on this question of law would necessarily have been the same even if not only the applicant's counsel but he himself had been present at the hearing on 20 June 1989 and he had been afforded an opportunity to address the Supreme Court. Moreover, if the judgment of the City Court had been quashed and the case had been referred back to the court of first instance for retrial, the City Court would have been bound to follow the Supreme Court's interpretation of the law, namely that the relevant provision made it obligatory to use a dory in the rescue operation. As to the sentence, it must be observed that, according to the applicant's own submissions both before the Norwegian courts and before the Convention institutions, he attached importance to the question of whether he was guilty of an offence but not to that of sentencing.  If it were otherwise he could have availed himself of the opportunity to be present at the appeal proceedings and to have asked for leave to address the Supreme Court.  Moreover, in its judgment the Supreme Court emphasised the fact that the applicant was only at fault in respect of his conduct during the preliminary stages of the rescue operation.  In addition the penalty imposed was lenient. Indeed, one can hardly imagine a less severe penalty. Finally, in our view, the reference in the decision of the Court to the Kremzow v. Austria judgment of 21 September 1993 (Series A no. 268-B) is certainly not appropriate for this case. The special circumstances mentioned in paragraphs 67-68 of that judgment - relating to a murder trial resulting in a sentence of life imprisonment - are in no way comparable to the facts in the present case, where there was no particular need to assess the applicant's personality and character.

[1] The case is numbered 50/1994/497/579.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1996-I), but a copy of the Commission's report is obtainable from the registry.