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-Åke 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
Full & Egal Universal Law Academy