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You are here: BAILII >> Databases >> European Court of Human Rights >> BOTTEN v. NORWAY - 16206/90 [1996] ECHR 4 (19 February 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/4.html Cite as: [1996] ECHR 4, (2001) 32 EHRR 3, 32 EHRR 3 |
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In the case of Botten v. Norway (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of Court B (2),
as a Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr R. Ryssdal,
Mr F. Gölcüklü,
Mr A. Spielmann,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr L. Wildhaber,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 September 1995 and
25 January 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
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).
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") and by the
Government of the Kingdom of Norway ("the Government") on
8 December 1994 and 16 January 1995 respectively, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 16206/90) against Norway lodged with the
Commission under Article 25 (art. 25) by a Norwegian citizen,
Mr Harald Ståle Botten, on 22 December 1989.
The Commission's request and the Government's application
referred to Articles 44 and 48 (art. 44, art. 48) and, as regards
the request, to the declaration whereby Norway recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request and of the application was to obtain a
decision as to whether the facts of the case disclosed a breach
by the respondent State of its obligations under Article 6
para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 31).
3. The Chamber to be constituted included ex officio
Mr R. Ryssdal, the elected judge of Norwegian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Bernhardt,
the Vice-President of the Court (Rule 21 para. 3 (b)). On
27 January 1995, in the presence of the Registrar, the
Vice-President drew by lot the names of the other seven members,
namely Mr F. Gölcüklü, Mr A. Spielmann, Mr A.N. Loizou,
Mr J.M. Morenilla, Mr F. Bigi, Mr L. Wildhaber and Mr U. Lohmus
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43).
4. As President of the Chamber (Rule 21 para. 5),
Mr Bernhardt, acting through the Registrar, consulted the Agent
of the Government, the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 39
para. 1 and 40). Pursuant to the orders made in consequence on
23 February and 15 June 1995, the Registrar received the
applicant's and the Government's memorials on 7 July 1995. On
16 August 1995 the Registrar received from the applicant details
on his Article 50 (art. 50) claims. On 8 September 1995 the
Secretary to the Commission indicated that the Delegate did not
wish to reply in writing.
5. On 21 September 1995 the Commission produced certain
material from the file on the proceedings before it, as requested
by the Registrar on the President's instructions. On 18 and
25 September and 20 November 1995 and on 15 January 1996, the
Registrar received various documents from the Government and the
applicant and also further particulars on the latter's Article 50
(art. 50) claims.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 26 September 1995. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr T. Stabell, Assistant Attorney-General
(Civil Matters), Agent,
Mr J.E. Helgesen, Legal Adviser,
The Royal Ministry of Foreign Affairs,
Mr K. Kallerud, Assistant Attorney-General,
(Civil Matters),
Mr F. Elgesem, Attorney, Attorney-General's Office
(Civil Matters), Advisers;
(b) for the Commission
Mrs G.H. Thune, Delegate;
(c) for the applicant
Mr F.E. Engzelius, advokat, Counsel,
Mr J. Hjort, advokat, Adviser.
The Court heard addresses by Mrs Thune, Mr Engzelius and
Mr Stabell.
AS TO THE FACTS
I. Particular circumstances of the case
7. The applicant, a Norwegian citizen, is a
Lieutenant-Colonel in the Norwegian Air Force. He is Commanding
Officer of Flesland Air Station and is currently serving as full
Colonel in the United Nations Forces in Tuzla,
Bosnia-Herzegovina.
A. Events giving rise to criminal charges against the
applicant
8. In 1987 the applicant served as Commander of the
Norwegian Defence Telecommunications Station ("the Station") on
Jan Mayen island in the Arctic Ocean, which is part of the
Kingdom of Norway.
On 17 April 1987 the captain of a shrimp trawler,
M/S Polarbas, radioed the Station, asking it to receive for
treatment a fisherman, who had injured his arm. On 18 April the
applicant agreed to this request and, on the same date, he and
a colleague rowed out in a rubber dinghy to meet the trawler's
lifeboat bringing the fisherman closer to shore. Shortly after
the injured fisherman had been taken aboard, a breaker capsized
the dinghy, leaving all three passengers in the sea, which on
that date had a temperature of -0.3 °C. The applicant was the
only one of the three who managed to reach the shore and who
survived.
9. A military board of inquiry, set up inter alia to
establish the facts of the incident and to express an opinion on
whether any regulations had been violated, concluded in a report
of 1 May 1987 that relevant instructions had been violated and
that the applicant, as Head of Station, was responsible.
10. On 11 July 1988 the public prosecutor of Nordland, under
an expedited non-judicial procedure (forelegg), proposed to the
applicant a suspended sentence of twenty-seven days' military
custody (vaktarrest) and a fine of 5,000 Norwegian kroner (NOK)
for the offence of neglect or carelessness in the performance of
official duties (Article 78 para. 1 of the 1902 Military
Penal Code - Militær Straffelov, Law no. 13 of 22 May 1902). As
the applicant refused to accept the proposal, the public
prosecutor instituted proceedings against him in Bodø City Court
(byrett - "the City Court"), charging him with the aforementioned
offence.
B. Proceedings in the City Court
11. The trial before the City Court took place from 9 to
13 March 1989. The applicant was heard and thirteen witnesses
and three expert witnesses gave evidence. Documentary evidence,
including the military board of inquiry's report of 1 May 1987
(see paragraph 9 above), was submitted. Furthermore, on
11 March the City Court held an inquiry on Jan Mayen island at
the site of the accident, where a number of witnesses testified.
12. In its judgment of 30 March 1989, the City Court
described the relevant facts as follows:
"In the morning of 18 April 1987 [the applicant] was
informed by Ms Karin Ree, nurse [at the Station], that
the captain of M/S Polarbas had been in contact with
Jan Mayen radio and requested that Mr Asbjørn Olufsen
[the injured fisherman] be taken ashore at Jan Mayen so
that the nurse could have a look at his wrist injury.
The [applicant] responded in a positive manner to the
request, but said that they would have to ascertain
conditions in [the bay of] Båtvika before receiving
Mr Olufsen. The nurse and the Chief Engineer,
Arne Svendsen, were willing to participate in the
operation. Mr Svendsen went down to Båtvika to check the
conditions and reported back to [the applicant] that they
were satisfactory. [The applicant] then contacted the
Polarbas and agreed that the patient should be brought by
a launch close to the beach in Båtvika and that a rubber
dinghy ... would meet them there. It was further agreed
that the transfer of the patient would take place
approximately twenty minutes after the conversation
between the Polarbas and the Station. They also agreed
on a radio frequency on which the parties would
communicate.
...
While driving to Båtvika, the [applicant] discovered that
he had forgotten his camera. He wondered whether he
should return to pick it up, but the nurse insisted that
they had no time to lose and that they should therefore
drive on. She then offered to collect the camera later,
but the [applicant] told her that she should not do so.
On arriving at Båtvika they found the [rubber dinghy]
already there, the Maintenance Chief Officer having
fetched it and driven it down to the beach. The
Maintenance Chief Officer said that the dinghy ought to
be pumped up. The Chief Engineer, however, thought that
it was better to leave the dinghy as it was and so do
nothing to it. The [applicant] and Mr Svendsen sat down
in the dinghy after having put on survival suits.
However, neither of them put on their hoods. They took
no radio equipment with them in the dinghy, but Ms Ree
had a radio for the purpose of communicating with the
Polarbas and its launch.
As they left the beach, the Polarbas launch with the
injured fisherman on board was far out in the approaches
to Båtvika. Some time after the dinghy had left, the
nurse ... returned to the beach with the [applicant's]
camera which she had gone back to collect at the
administration building ...
Mr Svendsen rowed the dinghy out from the beach. After
having rowed some forty to sixty metres from the shore
they waited a while, trying to get the launch to approach
them. However, they did not obtain any response from the
persons in the launch.
[Mr Svendsen] was tired and he and [the applicant]
changed places, the [applicant] taking over the rowing.
They tried several times to contact the launch, but to no
avail. They realised that something had gone wrong.
They therefore rowed further towards the launch which was
still lying far out in the approaches to Båtvika. As
they came up to the launch they were told that the engine
had broken down and that a sea anchor had been deployed.
The men in the launch were anxious since, despite the sea
anchor, the launch was drifting towards the rocks. None
of the persons in the launch were wearing life-jackets or
survival suits. Nor was such equipment available in the
launch.
The injured fisherman ... was taken on board the [rubber
dinghy]. The dinghy was then rowed away from the launch.
A breaker capsized the dinghy and the three people on
board were thrown into the sea. They were not attached
to the dinghy with lines nor did they have any lines with
them. They did not have life-jackets.
Ms Ree, who was standing on the beach, had a portable
radio set, but did not have first-aid equipment, such as
a stretcher, blankets or the like."
13. The City Court acquitted the applicant. Its judgment
includes the following observations. Although the applicant was
in principle under no duty to receive the injured fisherman, such
a duty arose from the fact that he agreed to do so. In
determining whether the applicant had been guilty of neglect or
carelessness in the landing operation or in its preparations, it
had to be ascertained whether he had breached any applicable
instructions. Gross breaches or several recurring breaches of
instructions could amount to neglect or carelessness within the
meaning of Article 78 para. 1 of the Military Penal Code. The
public prosecutor had argued that the applicant had acted in
breach of his duties in seven instances, of which those indicated
below were the subject of argument in the present case:
"1. It was the duty of the defendant to use
the dory once he had decided to receive a
patient.
...
4. It was his duty to ensure that the nurse brought
along medical equipment and was present throughout
the operation.
...
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 earlier, once he realised that
the launch did not intend to approach them."
The City Court was of the view that the instructions
imposing duties on military and civilian personnel on Jan Mayen,
in particular Instruction C 14 containing General Rules on
Traffic on and around Jan Mayen, were for various reasons
unclear. Moreover, many of the provisions in question were
designed for the loading and discharging of supply vessels. The
relevant instructions could therefore apply to rescue operations
only in so far as was appropriate.
As to the above-mentioned item 4 of the prosecutor's
allegations, the City Court held:
"... the [applicant] cannot be blamed 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, lasting only a few minutes. The [applicant]
knew, however, that [the] nurse ... did not bring along
first-aid equipment to the shore. In that respect
therefore, there is a breach of Instruction B 13,
section 3.6. The Court points out, however, that there
are no serious violations of the instructions. The
object of the operation was merely to fetch a fisherman
who was only suffering 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."
With regard to item 7, the City Court made, inter alia,
the following observations:
"... the City Court agrees in principle with the
prosecutor that it was unsafe to row the rubber dinghy
right out to the launch. However, the [City] Court takes
into account the fact that the [applicant] and
[Mr Svendsen], 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 [City] Court cannot see here either that
the [applicant] committed any breach of the instructions
since it was highly probable, and gradually became quite
obvious, that the launch was in a critical situation."
Finally, with regard to item 1, the members of the City
Court were divided:
"Assessor Terje Henriksen considers that section 2 of
Instruction C 14 lays down an obligation for the
defendant to use the dory, since the penultimate
paragraph of section 2 ... provides that this rule
applies to all personnel on Jan Mayen. The President of
the Court considers that ... section 2, which applies to
sea traffic, must be applied wherever appropriate.
Regarding this special case, where the [applicant] was to
take ashore a fisherman with an injured wrist, the
President cannot find any circumstances which could
justify setting aside the general obligation to use the
dory. The operation was not conducted under such heavy
pressure that this provision could be disregarded.
Assessor Tordis Kvarv is of the opinion that the
provision does not apply in a rescue operation of the
kind in issue and that the matter must therefore be
assessed in terms of general requirements of care.
Assessor Terje Henriksen considers 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' within the
meaning of Article 78 para. 1 of the Military Penal Code.
He has therefore arrived at the conclusion that the
defendant should be convicted for violation of Article 78
para. 1 ...
The President ... is of the opinion that even if this
instruction has been disregarded, it must nevertheless be
considered in applying Article 78 para. 1 ... whether the
choice made by [the applicant] made the situation worse
than would have been the case had he chosen the dory. If
it did not, a violation of this instruction cannot be
described as neglect or carelessness. The majority of
the Court (Assessor Tordis Kvarv and the President) have
found that the use of the dinghy instead of the dory did
not lead to reduced safety, having regard to the purpose
which the boat was originally supposed to serve.
Particular weight is attached to the fact that the
parties had agreed to meet close to the beach. Although
the precise meeting point had not been agreed, it must at
least be accepted that they did not intend to go much
further out than about 100 metres from the beach. In
this area the waters are calm. Moreover, reference is
made to the testimony of the prosecution expert witness,
Mr Alv Håkon Klepsvik, Commander. He testified in court
that he saw no safety problems in using the rubber dinghy
in, or just outside, Båtvika provided it was kept away
from breakers or wave peaks. He considered that, if one
stayed in the middle of Båtvika or on the lee side, using
the dinghy did not give rise to any problems. Nor would
he have had any hesitation in using the dinghy to receive
a person from another boat. He further testified that
there was less risk of injury in transferring a person
from a boat to another when the second was a rubber
dinghy, and he thought that it would be preferable to use
a rubber dinghy rather than a dory for that purpose. As
regards the fact that the dinghy was not fully pumped up,
he stated that it was better to use a dinghy that was not
fully inflated. Nor did 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 dory and whether any breach of this duty
led to reduced safety. The ... majority has accordingly
come to the conclusion that such is not the case and that
the defendant should therefore be acquitted, ... finding
him not guilty of neglect or carelessness as described in
the charge."
C. Proceedings in the Supreme Court
14. On 12 April 1989 the public prosecutor appealed from the
judgment of the City Court to the Supreme Court (Høyesterett).
In the first place he maintained that the City Court's decision
was flawed in that it had applied too narrow an interpretation
of the statutory offence of neglect in the performance of
official duties. In the view of the prosecution, the breach of
the duty to use a dory was so serious that it amounted to
neglect. The City Court's view that using a rubber dinghy
instead of a dory did not lead to reduced safety was not a
sufficient reason for holding otherwise. The instructions had
been laid down on the basis of several years' experience and with
a view to the particular conditions at Jan Mayen and the fact
that the Station officers are not necessarily accustomed to the
sea and are only stationed there for a limited period. These
considerations suggested that, save in exceptional circumstances,
the Station officer was strictly required to exercise care and
to follow the instructions. In the prosecution's opinion, the
instruction could be departed from only if there was an emergency
or if the service might thereby be carried out in a better or
safer manner; that, however, was not the situation in the
applicant's case.
The prosecutor further submitted that the facts as
established by the City Court were sufficiently clear to allow
the Supreme Court to give a new judgment under Article 362
para. 2 of the 1981 Code of Criminal Procedure (see paragraph 28
below) convicting and sentencing the applicant, as opposed to
quashing the City Court's judgment and referring the case back
for fresh examination.
In his alternative submission, he argued that the City
Court's judgment should be quashed on the ground of a procedural
defect, its reasoning being incomplete. The judgment failed to
describe the sea conditions prevailing at the time when the
applicant set out in the dinghy and also when he realised that
the lifeboat would not arrive at the agreed meeting point, and
the distance between the lifeboat and the shore at those times.
Nor did the judgment mention what the applicant thought had gone
wrong with the lifeboat, which alternatives he had to taking the
dinghy further out or how much time it would have taken to
prepare the dory for the operation.
15. On 20 April 1989 the Appeals Selection Committee of the
Supreme Court (Høyesteretts Kjæremålsutvalg) granted leave to
appeal. By letter of 27 April 1989 the Supreme Court informed
the applicant of its decision and that it had appointed as his
counsel the lawyer who had represented him in the City Court.
Moreover, the Supreme Court invited the applicant to contact his
counsel as soon as possible if he possessed any information of
relevance to the case which was not apparent from the case file.
In addition, the Supreme Court stated that it intended to deal
with his case in the near future without giving him further
notice (Article 353 of the Code of Criminal Procedure -
straffeprosessloven - as applicable at the relevant time).
16. After the prosecutor and counsel for the applicant had
been consulted, the Supreme Court, by letter of 11 May 1989,
advised counsel that it had set the oral hearing for
20 June 1989, at 9.15 a.m.
Subsequently, counsel informed the applicant of the date
of the hearing and told him that, if he wished, he could ask the
Supreme Court for leave to make an oral statement at the hearing
but that he would not be heard either as a party or as a witness.
Moreover, counsel advised the applicant that it was unusual for
a defendant in an appeal personally to address the Supreme Court.
Accordingly, the applicant did not ask for such leave.
17. An extract of the proceedings in the City Court, prepared
by the prosecutor (for further details, see paragraph 18 below),
was sent to counsel well in advance of the hearing in the Supreme
Court. Counsel made no objections to the extract, nor did he
make any further submissions to the Supreme Court.
18. At the hearing on 20 June 1989 the applicant's counsel
was present, but he himself was not. As he was entitled to do,
counsel addressed the Supreme Court and replied to the
prosecutor's oral submissions in so far as they concerned the
latter's appeal on points of law and procedure (see paragraph 14
above). However, in determining liability, the Supreme Court was
bound by the establishment of the facts concerning the question
of guilt in the City Court's judgment (Article 335 of the Code
of Criminal Procedure as applicable at the relevant time).
After the main pleadings, the prosecution requested the
Supreme Court to convict the applicant of an offence under
Article 78 para. 1 of the Military Penal Code and to sentence him
to a suspended term of twenty-seven days' military custody and
to a fine of NOK 5,000, failing payment of which he should be
imprisoned for fifteen days. In the alternative, the prosecutor
asked the Supreme Court to quash the City Court's judgment.
Counsel for the applicant requested the Supreme Court to
dismiss the appeal.
The Supreme Court's case file included a 112-page extract
from the proceedings in the City Court, containing the City
Court's judgment of 30 March 1989, the written evidence used by
it, including details of the applicant's professional and private
status and income, his military service card, a statement to the
effect that he had no criminal record, the military inquiry
report and certain court transcripts. However, it did not
include any records of the hearings in the City Court, such
records not being available. The Supreme Court heard no
witnesses or experts.
19. In a judgment of 27 June 1989, which was final, the
Supreme Court upheld the prosecution appeal. Mr Justice Dolva,
on behalf of a unanimous court, gave the following reasons:
"I find that the appeal on the application of the law
must be upheld and that the conditions for pronouncing a
new judgment convicting the accused pursuant to
Article 362 para. 2 of the Code of Criminal Procedure
have been fulfilled.
...
The decisive issue in the case is ... whether the
applicant's conduct in connection with the landing
operation and the preparations for it constitutes neglect
or carelessness under Article 78 para. 1 of the Military
Penal Code. The grounds cited for this are that he
disregarded applicable instructions on several points as
specified in the indictment. The City Court's judgment
lists seven matters which, taken together, are claimed to
constitute neglect. Several of these points have not
been pursued before the Supreme Court.
The instructions applying to Jan Mayen are comprehensive.
This must be viewed in the light of the demanding
conditions for those serving there. I would note that
the preamble to the instructions for Jan Mayen, which
were issued in August 1986 by the Norwegian Defence
Communications and Data Services Administration and which
are relevant to the present case, states: 'Written
instructions are more necessary on Jan Mayen, where there
is a constant turnover of personnel, than elsewhere.'
The 'General Provisions concerning Traffic on and around
Jan Mayen', which form part of the said instructions,
figure centrally in the case. Section 1 ..., entitled
'Purpose', reads: 'These are general provisions which are
intended as guidelines for both official and leisure
traffic on and around Jan Mayen.' Even though the
provisions initially give the impression of setting out
'guidelines', it is clear that they include binding
rules, as shown by section 2 on sea traffic, the first
paragraph of which reads: 'Excursions by boat in the sea
around Jan Mayen without seagoing support vessel are
generally prohibited.' However, the rule goes on to list
various exceptions. I would point out that the
provisions on sea traffic clearly must cover the
operation launched to receive the injured fisherman on
that occasion, even though it was presumed that the
transfer would be conducted relatively close to the
shore. I also find it clear that the provisions must
apply to the landing operation, even though there is no
mention of assistance to the fishing fleet here or
elsewhere in the instructions for Jan Mayen.
Section 2 ... includes, inter alia, the following two
clauses:
` - Ensure that both dories are used on trips if no
other boat is close to the island, or no other
boat has been made ready to assist if necessary.
- When the weather conditions are deemed to be
satisfactory, the other dory may be replaced by
the dinghy, which may be taken aboard the dory or
drawn behind it.'
In my view, it follows from the rules that there is a
requirement to use a dory on occasions such as the one in
question here, and that a dinghy could not replace a dory
in this situation. It is true that a dinghy could be
used in certain circumstances, but only as a backup. I
therefore agree with the President of the City Court and
the one lay judge who, admittedly on somewhat different
grounds, found that the provisions imposed an official
duty on the [applicant] to use a dory instead of a
dinghy.
The President of the [City] Court was however of '... the
opinion that even if this instruction has been
disregarded, it must nevertheless be considered in
applying Article 78 para. 1 ... whether the choice made
by the [applicant] made the situation worse than would
have been the case had he used a dory. If it did not, a
violation of this instruction cannot be described as
neglect or carelessness'.
I do not agree with this interpretation of the law.
In my opinion, the duty to use a dory is of such key
significance in the provisions relating to traffic that
an assessment such as that mentioned by the President is
insufficient. I refer to the fact that the duty was
imposed in the light of experience and is intended to
protect life and health in an area characterised by quite
extraordinary weather conditions and in difficult waters,
and that it is thus particularly important that the
instruction is complied with on this point. The
assessment referred to by the President of the City Court
cannot therefore be decisive for whether there was
neglect.
The second lay judge, who together with the President of
the City Court constituted the majority voting in favour
of acquittal, likewise based her decision on an erroneous
application of the law. In her opinion, the duty to use
a dory did not apply 'to a rescue operation of this kind,
and the matter must therefore be considered on the basis
of a general assessment of the duty of care'. I find
that she was of the opinion that there was no duty to use
a dory, and therefore no neglect within the meaning of
Article 78 para. 1.
The majority of the City Court ... found that using a
rubber dinghy instead of a dory on the occasion did not
have the effect of reducing safety given the use for
which the dinghy was initially intended, namely reception
of the injured fisherman from the shrimp trawler's
lifeboat not 'much further than about 100 metres from
shore'. However, according to the regulations, this is
not decisive.
Thus the [applicant's] acquittal is based on an erroneous
application of the law. In the present case, however,
this does not warrant quashing the City Court's judgment,
since I agree with the prosecution's submission in the
notice of appeal that the conditions are satisfied for
pronouncing a new judgment convicting [the applicant]
pursuant to Article 362 para. 2 of the Code of Criminal
Procedure. In this connection, I refer to the City
Court's account of the facts.
I also refer to what I previously said about the
background to and the specific contents of the provisions
concerning traffic on and around Jan Mayen, in particular
the duty to use a dory. Given the difficult conditions
on the island, it is particularly important that rules of
this kind are complied with. The [applicant] is at fault
for having decided, despite the requirement set out in
the instruction, to use the rubber dinghy on that
occasion and for having done so. I would point out,
however, that the situation had changed at the subsequent
stages of the operation, when it was clear that the
persons in the approaching lifeboat were in danger. In
my opinion, however, what had already happened in the
earlier stages constitutes such a serious matter that it
must be deemed to constitute neglect under Article 78
para. 1. I would note that counsel for the defence has
contended before the Supreme Court that the duty to use
a dory could not apply when a lifeboat was launched from
the shrimp trawler. I do not find that this [argument]
can be accorded decisive weight in the present case, as
it is clear from the City Court's judgment that the
dinghy was not simply used as a backup on this occasion.
Nor could the defendant know whether or not the lifeboat
was properly equipped, as subsequently turned out not to
be the case.
As previously indicated, the prosecution has also brought
up other matters which, in its opinion, constitute
breaches of the applicable instructions. Some of these
matters which were submitted to the City Court have not
been pursued before the Supreme Court.
...
The City Court unanimously concluded that there was a
breach of the instruction on account of the fact that the
nurse had not brought first-aid equipment down to the
shore and that the [applicant] was aware of this fact.
I find this to be the case. However, the failure to use
a dory in the landing operation is the predominant factor
in relation to Article 78 para. 1.
As regards sentencing, I find it appropriate to sentence
[the applicant] to twenty days' military custody
suspended for a probation period of two years, in
addition to an unconditional fine of NOK 5,000 or, in
default of payment, military custody for fifteen days.
In this connection, I have attached importance to the
fact that the defendant is only at fault in respect of
his conduct during the preliminary stages of the landing
operation."
II. Relevant domestic law
20. Article 78 para. 1 of the Military Penal Code reads:
"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 the loss of
commission or with detention for a term not exceeding six
months."
21. Appeals in all criminal cases, including those covered by
the Military Penal Code, are governed by the Code of Criminal
Procedure.
A. Proceedings in the City Court
22. Under Article 278 of the Code of Criminal Procedure,
proceedings during the main hearing in the District or City Court
are oral. Written evidence is read out by the person producing
the evidence unless the court decides otherwise (Article 302).
After the examination of each individual witness and after the
reading out of each piece of written evidence, the accused has
to be given an opportunity to speak (Article 303). The court
must see to it that the facts of the case are fully established
(Article 294).
When the production of evidence (bevisførselen) 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 is asked whether he has
any further comment to make (Article 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
(Article 305).
23. Under Article 40 of the Code of Criminal Procedure, if
the City Court decides to convict the accused its judgment must,
in giving its verdict, state in a specific and exhaustive manner
the facts of the case which the court has found to be proved and
on which its verdict is based. It must also refer to the penal
provision under which the accused has been convicted. In
addition the judgment must state the reasons to which the court
has attached importance in determining the sanctions.
If the person charged is acquitted, the grounds of the
judgment must, in accordance with Article 40, state which
conditions for a finding of guilt are deemed not to be satisfied,
or the circumstances which exclude a sanction called for by the
prosecution.
B. Appeal to the Supreme Court
24. Under the Code of Criminal Procedure, as applicable at
the material time, a party in a criminal case seeking to
challenge a judgment of the City Court could, depending on the
nature of the point disputed, either request a new trial (fornyet
behandling) in the High Court (lagmannsretten) or appeal (anke)
to the Supreme Court.
If the object was to contest the City Court's assessment
of evidence in relation to the question of guilt
(bevisbedømmelsen under skyldspørsmålet, Article 369, as
applicable at the relevant time), the appellant party could, with
leave from the Appeals Selection Committee of the Supreme Court
apply for a new trial in the High Court (Article 370, as
applicable at the relevant time).
On the other hand, an appeal on grounds of errors of law
going to the verdict (rettsanvendelsen under skyldspørsmålet),
on procedural defects (saksbehandling) and as to sentence
(straffutmåling) could be lodged with the Supreme Court
(Article 335, as applicable at the relevant time). The Supreme
Court thus had no competence to review questions of facts which
go to the question of guilt but had to base itself on the
findings of the City Court in this respect. No such limitation
applied to the Supreme Court's jurisdiction with regard to
sentencing, which comprised both questions of facts and of law.
25. Both parties may in principle lodge an appeal against a
judgment of the District or City Court (Article 335, as
applicable at the time). However, an acquitted person may not
appeal unless the court has found it proved that he committed the
unlawful act referred to in the indictment (Article 336, as
applicable at the time).
26. The appeal proceedings are prepared and conducted
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 (Article 352, as applicable at the relevant
time).
27. The proceedings in the Supreme Court are oral and public
and both parties are allowed to speak twice. The appellant party
is entitled to address the court first. The accused may be
allowed to address the court during the hearing (Article 356, as
applicable at the relevant time). Evidence is submitted to the
court by reading out from the documents relating to the case
(Article 357, as applicable at the time).
28. Article 362 (as applicable at the time) read:
"If the court finds no reason to vary 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 conditions are fulfilled;
otherwise the judgment appealed against shall be set
aside by court order."
In determining whether the "necessary conditions are
fulfilled", the Supreme Court will concentrate on the question
whether the facts as ascertained in the judgment appealed against
are sufficient to render a new decision on the merits. Case-law
under Article 362 confirms that the Supreme Court is reluctant
to pronounce a new judgment.
Prior to the entry into force of the 1981 Code of
Criminal Procedure on 1 January 1986, the Supreme Court had,
under Article 396 of the 1887 Code of Criminal Procedure, power
to give a new judgment convicting the accused only "when the
question of guilt had been decided against the defendant" in the
lower court. The 1981 Code removed this limitation on the
Supreme Court's competence.
C. Reform of the Norwegian appeal system
29. Since 1 August 1995, when the 1993 Act Amending the Code
of Criminal Procedure (Lov av 11 juni 1993 nr. 80 om endringer
i straffeprosessloven m.v. (toinstansbehandling, anke og
juryordning)) entered into force, an appeal against the City
Court lies ordinarily with the High Court, which has power to
review points of fact, law and procedure (Articles 5, 306 and 345
as amended). As a consequence, to a greater extent than before,
the High Court will act as a second instance, and the Supreme
Court as a third instance, in criminal cases.
On the other hand, the above-mentioned provisions in
Articles 336, 356, 357 and 362, which have been replaced
respectively by Articles 307, 339, 340 and 345, remain
essentially unchanged.
30. In an opinion appended to the bill proposing to amend the
Code (Ot prp nr. 78 (1992-93), p. 25), the Supreme Court stated:
"The present system, where the Supreme Court acts as the
ordinary second instance in criminal cases, is
internationally unique. This arrangement has enabled a
speedy hearing of appeal cases and has given the Supreme
Court a considerable influence on the practice of
criminal law. However, in recent years - given current
developments - the present system has demonstrated that
it is no longer satisfactory. It does not fulfil the
standards of legal safeguards which ought to be met and,
at the same time, with the increased number of criminal
cases in present-day society, the arrangement creates
working conditions in the Supreme Court which prevent it
from performing its functions in a fully satisfactory
manner. The proposal that one should have two ordinary
instances below the Supreme Court would bring the appeal
system in criminal cases in line with that in civil cases
and with the appeal systems in most countries. It would
give the Supreme Court the opportunity to concentrate its
work to a greater extent on cases where its decision will
concern matters of principle, or where there are other
particular reasons for obtaining a decision from the
Supreme Court."
PROCEEDINGS BEFORE THE COMMISSION
31. In his application (no. 16206/90) to the Commission of
22 December 1989, Mr Botten complained that, in breach of
Article 2 of Protocol No. 7 (P7-2) to the Convention, he was not
afforded a right to have his conviction and sentence reviewed by
a higher tribunal, the Supreme Court being barred from assessing
the facts in relation to the question of guilt. He further
alleged that there had been a violation of his right to a fair
trial under Article 6 (art. 6) of the Convention, on account of
the fact that his conviction by the Supreme Court was based on
the facts grounding his acquittal by the City Court and that he
was neither summoned to appear nor present at the hearing of the
Supreme Court.
32. On 17 January 1994, the Commission declared the
applicant's complaint under Article 6 (art. 6) admissible and
declared the remainder of the application inadmissible. In its
report of 11 October 1994 (Article 31) (art. 31), the Commission
expressed the opinion that the proceedings in the Supreme Court
gave rise to a violation of the applicant's right to a fair
hearing as guaranteed by Article 6 para. 1 (art. 6-1) of the
Convention (by sixteen votes to one). The full text of the
Commission's opinion and of the dissenting opinion contained in
the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. 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.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
33. At the hearing on 26 September 1995 the Government, as
they had done in their memorial, invited the Court to hold that
there had been no violation of Article 6 (art. 6) of the
Convention.
34. On the same occasion the applicant reiterated his request
to the Court stated in his memorial to find that there had been
a breach of Article 6 (art. 6) and to award him just satisfaction
under Article 50 (art. 50) of the Convention.
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
35. The Government maintained, as they had done
unsuccessfully before the Commission, that the applicant had
failed to exhaust domestic remedies (Article 26 of the
Convention) (art. 26). He had not raised before the Supreme
Court the substance of his complaint under Article 6 (art. 6) of
the Convention, namely that the Supreme Court, without having
summoned him and without having heard him in person, gave a new
judgment overturning his acquittal by the City Court (see
paragraphs 15, 16, 18, 19 and 28 above).
36. However, the Court observes that the subject-matter of
the applicant's complaint to Strasbourg was addressed and dealt
with in the domestic proceedings.
In his appeal to the Supreme Court the public prosecutor
invited that court to convict and sentence the applicant for the
offence of neglect or carelessness in the performance of official
duties under Article 78 para. 1 of the Military Penal Code. The
prosecutor pleaded that the facts as established by the City
Court were sufficiently clear to allow the Supreme Court to give
a new judgment under Article 362 para. 2 (as applicable at the
material time) of the Code of Criminal Procedure, as opposed to
quashing the City Court's judgment and referring the case back
for a retrial (see paragraph 14 above). Counsel for the
applicant asked the Supreme Court to dismiss the appeal but did
not, by way of alternative submission, object to the Supreme
Court giving a new judgment under Article 362 para. 2.
On 27 June 1989, the Supreme Court found that the
description of facts in the City Court's judgment were sufficient
to fulfil the condition in Article 362 para. 2 and convicted and
sentenced the applicant for an offence under Article 78 para. 1,
without summoning him or hearing him in person. It is implicit
in the Supreme Court's judgment that it did not consider this to
give rise to any unfairness in the proceedings against the
applicant (see paragraph 19 above).
In these circumstances, notwithstanding the fact that the
applicant or his counsel did not raise the matter themselves, the
Norwegian court cannot be said to have been denied the
opportunity which the rule of exhaustion of domestic remedies is
designed to afford to States, namely to put right the violations
alleged against them (see, amongst other authorities, the
Van Oosterwijck v. Belgium judgment of 6 November 1980, Series A
no. 40, p. 17, para. 34). Accordingly, the Government's
preliminary objection must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
37. The applicant complained mainly of the fact that the
Supreme Court, without having summoned him and without having
heard him in person, gave a new judgment overturning his
acquittal by the City Court. He alleged a violation of Article 6
para. 1 (art. 6-1) of the Convention which, in so far as
relevant, reads:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ..."
38. The Government disputed this contention, whereas the
Commission agreed with the applicant.
A. Principles in the Court's case-law
39. The Court reiterates that the manner of application of
Article 6 (art. 6) to proceedings before courts of appeal depends
on the special features of the proceedings involved; account must
be taken of the entirety of the proceedings in the domestic legal
order and of the role of the appellate court therein. Where a
public hearing has been held at first instance, the absence of
such a hearing may be justified at the appeal stage by the
special features of the proceedings at issue, having regard to
the nature of the domestic appeal system, the scope of the
appellate court's powers and to the manner in which the
applicant's interests were actually presented and protected
before the court of appeal, particularly in the light of the
nature of the issues to be decided by it (see, inter alia, the
Fejde v. Sweden judgment of 29 October 1991, Series A no. 212-C,
pp. 67-69, paras. 27 and 31; and the Kremzow v. Austria judgment
of 21 September 1993, Series A no. 268-B, p. 43, paras. 58-59).
According to the Court's case-law, leave-to-appeal
proceedings and proceedings involving only questions of law, as
opposed to questions of fact, may comply with the requirements
of Article 6 (art. 6), although the appellant was not given an
opportunity of being heard in person by the appeal or cassation
court (see the Axen v. Germany judgment of 8 December 1983,
Series A no. 72, pp. 12-13, paras. 27-28; and the Kremzow
judgment cited above, pp. 43-44, paras. 60-61). Moreover, even
if the court of appeal has full jurisdiction to examine both
points of law and of fact, Article 6 (art. 6) does not always
require a right to a public hearing or, if a hearing takes place,
a right to be present in person (see, for instance, the Fejde
judgment cited above, p. 69, para. 33).
B. Application of those principles to the present case
40. In the proceedings at first instance in the present case,
the City Court held a public hearing during which it took
evidence not only from the applicant but also from a large number
of witnesses and expert witnesses. In addition it conducted an
inquiry at the site of the accident (see paragraph 11 above).
The fairness of the proceedings in the City Court is undisputed.
Furthermore, the appeal proceedings in the Supreme Court
included a public and oral hearing at which the applicant was
represented by counsel (see paragraph 18 above). The issue to
be determined by the Court is whether, in the particular
circumstances of the case, the applicant's right to a fair
hearing as guaranteed by Article 6 (art. 6) of the Convention was
breached in as much as the Supreme Court gave a new judgment
under Article 362 para. 2 (as applicable at the relevant time)
of the Code of Criminal Procedure, convicting and sentencing the
applicant, without having summoned and heard him in person.
1. Arguments of those who appeared before the Court
41. In the Government's submission, the procedure applied in
the case under review not only complied with the "fair hearing"
guarantee in Article 6 (art. 6) of the Convention but in addition
enabled the national courts to complete criminal proceedings
"within a reasonable time" as also required by that
Article (art. 6). In the instant case, the applicant, through
his counsel, was afforded equal opportunities to those of the
prosecution to take part in the proceedings and to be heard. His
presence in person at the hearing before the Supreme Court would
not have provided any further guarantee of the fundamental
principles underlying Article 6 (art. 6).
42. As regards liability, the Government stated that under
Norwegian law the Supreme Court was bound by the City Court's
findings of fact in relation to the question of guilt (see
paragraphs 12, 19 and 24 above), which were in any event
undisputed. It would not have been able to review those facts
even if the applicant had been present. Nor did it follow from
the requirements in Article 40 of the Code of Criminal Procedure
(see paragraph 23 above) that facts set out in a judgment of
acquittal, like that of the City Court, were incapable of
grounding a conviction by the Supreme Court. On the contrary,
in the case under consideration, the majority of the City Court
voting for acquittal, and the minority voting for conviction, had
based their conclusions on the same facts and had disagreed
solely on a point of law (see paragraph 13 above). The
prosecution appeal on the applicant's liability clearly raised
only questions of law.
In this connection, it was stressed that the Supreme
Court, on a different construction of the law from that of the
majority of the City Court, had concluded that it had been
mandatory for the applicant to use a dory in the rescue
operation. It had convicted him under Article 78 para. 1 of the
Military Penal Code principally for having chosen to use a rubber
dinghy rather than a dory and also, on a minor point, for having
failed to ensure that the nurse brought first-aid equipment down
to the beach (see paragraph 19 above). The applicant's conduct
after he left the beach was thus irrelevant to his conviction,
as was the prosecution's alternative plea that the grounds of the
City Court's judgment were incomplete (see paragraph 14 above).
Consequently, in view of the Supreme Court's findings on
the law, the description of facts in the City Court's judgment
had clearly been sufficient to ground the Supreme Court's
conclusion on liability.
43. In the matter of sentencing, the facts presented to the
Supreme Court were in the Government's view sufficient and
complete. The case file had contained details of the applicant's
professional and private status, his income and his military
service card, and had indications that he had no criminal record
(see paragraph 18 above). It was hard to see what other evidence
could have been of relevance, since, in a case like the present
one, importance was attached to the nature of the offence, not
to the defendant's personality, character, state of mind or
motives. As appeared from the applicant's own submissions before
the Norwegian courts and the Convention institutions, he attached
importance to the question of guilt but not to that of
sentencing. The penalty imposed on the applicant had been
lenient (see paragraph 19 above) and could not have been of great
importance to him.
44. In their alternative submission, the Government argued
that the applicant had, in an unequivocal manner, waived his
rights under Article 6 (art. 6) of the Convention. In this
connection, they pointed to the fact that the applicant had
failed to exercise his right to be present at the appeal hearing
and to seek leave to address the Supreme Court. His counsel had
in addition neglected to object to the Supreme Court's giving a
new judgment under Article 362 para. 2 of the Code of Criminal
Procedure (see paragraphs 16-18 and 28 above).
45. The applicant and the Commission disagreed. As to the
appeal on liability, they maintained that, although the facts
established by the City Court were undisputed, this did not
necessarily mean that they were complete. Even the public
prosecutor had argued, as an alternative appeal submission, that
the grounds for the City Court's judgment were incomplete (see
paragraph 14 above). Moreover, the Supreme Court lacked powers
to review the facts as to the question of guilt. Since the
Supreme Court reversed the acquittal by the City Court and thus
convicted him for the first time in the proceedings against him,
the applicant ought to have been present and to have been heard
in person.
The applicant submitted, furthermore, that, since there
were no records of the hearing in the City Court, the Supreme
Court could not acquaint itself with all the evidence adduced at
first instance (see paragraph 18 above). Nor could it be assumed
that the description of facts in the City Court's judgment was
sufficient for the purposes of the Supreme Court's decision to
convict the applicant, since, under Article 40 of the Code of
Criminal Procedure, the City Court was only required to state the
facts in so far as was necessary to ground its own judgment
acquitting the applicant (see paragraph 23 above).
46. On the question of sentencing, the applicant and the
Commission considered it essential to the fairness of the
proceedings that the applicant should have been present and
afforded an opportunity to address the Supreme Court. In this
connection, they pointed to the fact that sentencing was examined
for the very first time by the Supreme Court and did not involve
a fixed or mandatory sentence and they also stressed the
importance of the outcome of the proceedings for the applicant
(see paragraphs 13, 19 and 20 above). In his view the Supreme
Court's decision had adversely affected his career.
47. In addition, as a further aspect of his complaint that he
had been denied a fair trial, the applicant argued that the
Norwegian procedure did not afford equality of arms between the
parties. The public prosecutor could, unlike the applicant,
chose either to appeal on points of law to the Supreme Court or
request a new trial in the High Court (see paragraph 25 above).
As a result of the prosecutor's choice of the former remedy, the
applicant could not have the facts relating to the question of
guilt reviewed.
2. The Court's assessment
48. In the Court's view, the fact that the Supreme Court was
empowered to overturn an acquittal by the City Court without
summoning the defendant and without hearing the latter in person
(see paragraphs 15, 27 and 28 above) did not on its own infringe
the fair hearing guarantee in Article 6 (art. 6) of the
Convention.
However, it is necessary to examine whether, in the light
of the Supreme Court's role and the nature of the issues to be
decided by that court, there has been a violation in the
particular circumstances of the case. In carrying out this
examination, the Court will confine itself to consider whether
the proceedings in the present case were fair; it is not its task
to express any view on whether the Supreme Court's interpretation
of Norwegian law was correct or to substitute its own assessment
for that of the Supreme Court as to whether the facts described
in the City Court's judgment were sufficient to ground a
conviction under Article 78 para. 1 of the Military Penal Code
(see, for instance, the Dombo Beheer B.V. v. the Netherlands
judgment of 27 October 1993, Series A no. 274, p. 18, para. 31;
and the Edwards v. the United Kingdom judgment of
16 December 1992, Series A no. 247-B, pp. 34-35, para. 34).
49. On the question of liability, the Court notes that the
public prosecutor invited the Supreme Court to place a different
construction on the terms "neglect" and "carelessness" within the
meaning of Article 78 para. 1 of the Military Penal Code from
that adopted by the City Court and to give a new judgment
convicting the applicant on the basis of the facts as found in
the City Court's judgment (see paragraph 14 above). The Supreme
Court, referring to those facts, convicted the applicant under
Article 78 para. 1 for his conduct at the "earlier stages" of the
rescue operation, principally for having chosen to use the rubber
dinghy instead of the dory (see paragraphs 12 and 19 above).
Even if, as suggested by the Government, only the main
point in respect of which the applicant was convicted is taken
into account, the Court is not persuaded by their submission to
the effect that the prosecution appeal raised exclusively
questions of law. Although the facts relating to the question
of guilt established by the City Court were undisputed and the
Supreme Court was bound by them, it had to some extent to make
its own assessment for the purposes of determining whether they
provided a sufficient basis for convicting the applicant; if they
did not it had to quash the City Court's judgment and order a
retrial (see paragraphs 19 and 28 above). This was compounded
by the fact that, as appears from the latter judgment and the
prosecution appeal to the Supreme Court, the allegation that the
applicant had a duty under the relevant rules to use a dory in
the rescue operation and that his failure to do so constituted
an offence under Article 78 para. 1 raised serious questions (see
the Helmers v. Sweden judgment of 29 October 1991, Series A
no. 212-A, p. 17, para. 38). These concerned not only the
interpretation of the terms of the applicable instructions but
also whether there had been neglect or carelessness in view of
the particular conditions obtaining at the site of the rescue
operation at the material time (see paragraphs 13, 14 and 19
above).
50. Furthermore, as to sentencing, the Supreme Court had full
jurisdiction to examine questions of fact and of law and had, in
the event of liability under Article 78 para. 1, discretion to
impose a penalty of up to six months' military custody (see
paragraphs 20 and 24 above). In view of the nature of the
offence, sentencing was, whatever the considerations relied on
by the Supreme Court, capable of raising issues going to such
matters as the applicant's personality and character (see,
mutatis mutandis, the Kremzow judgment cited above, p. 45,
para. 67). However, in deciding on sentence, the Supreme Court
did not even have the benefit of having a prior assessment of the
question by the lower court which had heard the applicant
directly.
51. In addition, bearing in mind the character of the offence
in question, the Court sees no reason to doubt that the outcome
of the proceedings could have adversely affected the applicant's
professional career (see, mutatis mutandis, the Helmers judgment
cited above, p. 17, para. 38). Indeed, criminal conviction and
sentence for neglect in the performance of official duties may
be a serious matter for any public official.
52. Taking into account what was at stake for the applicant,
the Court does not consider that the issues to be determined by
the Supreme Court when convicting and sentencing the applicant
- and in doing so overturning his acquittal by the City Court -
could, as a matter of fair trial, properly have been examined
without a direct assessment of the evidence given by the
applicant in person.
53. Having regard to the entirety of the proceedings before
the Norwegian courts, to the role of the Supreme Court and to the
nature of the issues adjudicated on, the Court reaches the
conclusion that there were no special features to justify the
fact that the Supreme Court did not summon the applicant and hear
evidence from him directly before passing judgment under
Article 362 para. 2 (as applicable at the time) of the Code of
Criminal Procedure. The Supreme Court was under a duty to take
positive measures to this effect, notwithstanding the fact that
the applicant neither attended the hearing, nor asked for leave
to address the court nor objected through his counsel to a new
judgment under Article 362 para. 2 being given by the Supreme
Court.
In short, the Court finds that there has been a violation
of Article 6 para. 1 (art. 6-1) of the Convention.
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
54. Mr Botten sought just satisfaction under Article 50
(art. 50) of the Convention, which reads:
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party."
55. The applicant did not seek compensation for damage. He
claimed reimbursement of costs and expenses in respect of several
items, from which should be deducted the NOK 81,815 and
12,611 French francs which he had received in this respect in
legal aid from the Norwegian authorities and the Council of
Europe. By letter of 15 January 1996, the applicant stated that
he had been granted a further NOK 131,253 in domestic legal aid
and that, bearing this in mind, he had no further claim under
Article 50 (art. 50) of the Convention.
56. In these circumstances the Court does not find it
necessary to make an award for costs and expenses.
FOR THESE REASONS THE COURT
1. Dismisses unanimously the Government's preliminary
objection;
2. Holds by seven votes to two that there has been a
violation of Article 6 para. 1 (art. 6-1) of the
Convention;
3. Holds unanimously that it is not necessary to make an
award for costs and expenses.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
19 February 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 55 para. 2 of Rules of Court B, the
dissenting opinion of Mr Ryssdal and Mr Gölcüklü is annexed to
this judgment.
Initialled: R. B.
Initialled: H. P.
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.