CEDH · CASELAW;REPORTS;ENG — 11 octobre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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    &#x