Communicated on 6 February 2018
FIFTH SECTION
Application no. 20265/14
Arnulf BJØRNEVIK
against Norway
lodged on 1 March 2014
STATEMENT OF FACTS
1. The applicant, Mr Arnulf Bjørnevik, is a Norwegian national who was born in 1956 and lives in Østerås. He is represented before the Court by Mr Bent Endresen, a lawyer practising in Stavanger.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. During the years preceding the current events, the applicant had received 15 convictions, of which eight related to acts of violence – including one conviction for first‑degree murder in 1983 – and he has served lengthy prison sentences.
1. First set of proceedings
4. In February 2004 the applicant was charged for having deprived his partner and cohabitee of her liberty, threats, and for having used grave violence against her. When he was remanded in custody, the applicant was put into preventive detention (sikring).
5. On 22 September 2004 the Stavanger District Court (tingrett) convicted the applicant of those offences and ordered him to be taken into compulsory mental health care. The court found that the applicant had been suffering from psychosis at the time of committing the acts in question.
6. On 27 January 2005 the applicant was admitted into a psychiatric hospital in Stavanger. On 26 January 2006 he was moved to the regional security department within the psychiatric division of Haukeland University Hospital in Bergen.
7. On 24 January 2008 the Bergen District Court (tingrett) reviewed the conditions for admission into compulsory mental health care and decided that they were still met in his case. On 29 August 2008 the Gulating High Court (lagmannsrett), on appeal, reached the same conclusion. On 31 October 2008 the applicant was refused leave to appeal by the Appeals Leave Committee (Høyesteretts ankeutvalg) of the Supreme Court (Høyesterett).
2. Second set of proceedings
8. On 4 November 2009 the applicant requested that the conditions for his compulsory mental health care again be reviewed. On 17 September 2010 the regional prosecutor requested, by means of an indictment, that the Bergen District Court rule that the compulsory mental health care be continued and that the applicant be transferred to a Correctional Service Institution. The District Court heard the case on 15 and 16 November 2010.
9. On 25 November 2010 the Bergen District Court revoked its decision admitting the applicant into compulsory mental health care and ordered that the applicant be transferred to a Correctional Service Institution. The court noted that Article 5 § 4 of the Convention had not been respected, insofar as the court had not handled the case “speedily”. While this was relevant to the question of whether continued compulsory mental health care was proportionate, it could not, in the court’s view, be decisive. The court also examined the applicant’s complaint that the conditions on the secure ward in the psychiatric section of the hospital infringed his rights under Article 5 § 1 (e) but again found that there had in fact been no breach.
10. The applicant applied to the Gulating High Court, which on 24 January 2011 granted him leave to appeal. The prosecuting authorities submitted the same indictment as before the District Court. The High Court heard the case from 14 to 16 February 2011.
11. On 25 March 2011 the High Court, sitting with three professional and four lay judges, held unanimously that the applicant was to be kept under continued compulsory mental health care and that the conditions for transferring him to a Correctional Service Institution had been met. As to the transfer of the applicant, the court largely resorted to reiterating the District Court’s reasons, with which it concurred. It additionally discussed whether such a transfer would be contrary to Article 5 § 1 (e) of the Convention but found that, in the light of his mental disturbances, the applicant was still a person “of unsound mind”.
12. The applicant appealed against the High Court’s judgment. On 21 June 2011 the Appeals Leave Committee of the Supreme Court granted the applicant leave to appeal only insofar as the question of the transfer to a Correctional Service Institution was concerned.
13. On 12 July 2011 the Supreme Court rejected the applicant’s appeal. At the outset, the court noted that the applicant was at the time diagnosed with paranoid and dissocial personality disorders. He was additionally diagnosed with a “mental disorder” and a behavioural disorder – due to the use of psychoactive substances – as well as with addiction, although he had remained abstinent whilst in protected surroundings. The court was of the view that the expression “persons of unsound mind” in Article 5 § 1 (e) of the Convention also covered mental health conditions other than psychosis and that it could also be applicable to individuals with personality disorders. Referring to the judgment in Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93, it considered that the applicant could be transferred to a Correctional Service Institution, provided that he be placed in a separate ward specialising in the care of this kind of offender. However, no such facilities existed in the prison concerned since the applicant’s case was the first of its kind in which such a transfer had been undertaken. Such a decision could therefore not be enforced before such a ward with specialised care had been established.
3. Third set of proceedings
14. On 3 September 2012 the applicant was transferred to Ila Correctional Service Institution.
15. In a letter dated 22 June 2012, the applicant again requested that his compulsory mental health care be terminated. His request was co-signed by his counsel on 6 September 2012. On 29 November 2012 the prosecutor brought the case before the Asker and Bærum District Court. The District Court heard the case from 4 to 6 March 2013.
16. On 13 March 2013 the District Court decided to keep the applicant under continued compulsory mental health care and that the transfer to the Correctional Service Institution should be maintained.
17. On 14 March 2013 and 1 April 2013 respectively the applicant and his counsel appealed against the District Court’s judgment to the Borgarting High Court. As well as arguing that the legal criteria for maintaining his compulsory mental care were not met, the applicant again claimed that the conditions of his stay at the prison did not satisfy the preconditions set out by the Supreme Court in 2011 and ran contrary to the Convention. The High Court heard the case from 26 to 28 June 2013.
18. On 3 July 2013 the High Court rejected the applicant’s appeal. It found that the arrangements made at Ila prison and detention centre were designed to fulfil the preconditions set out by the Supreme Court in its judgment of 12 July 2011. When examining the arrangements, it noted that the applicant’s physical surroundings had to be considered as acceptable, and that they were noticeably better than those for ordinary inmates: the applicant’s cell consisted of two cells that had been joined together, so that he had his own toilet and shower. He had his own living room (oppholdsrom) across the hallway and he also had a cell in department L, if he wanted to spend time there. Furthermore, the court did not see any problems in the fact that the applicant was offered the same facilities as other inmates with respect to gym, library, fresh air, shopping and access to work and education. In those respects the applicant also had two officers “earmarked” for him, so that he could benefit from the facilities without the restrictions imposed on the other inmates. Given that the applicant was the only individual at Ila ‒ and indeed in Norway as a whole ‒ who had been transferred from compulsory mental health care to a Correctional Service Institution, his contact with other individuals was necessarily confined to contact with other inmates or staff. As the applicant had not wished to interact with anyone else up to that point, the court considered that his allegedly isolated conditions at Ila were due to his own inclination rather than to the lack of opportunities.
19. On the basis of the presented evidence, the High Court found that the institution had been prepared to offer the applicant different forms of support and periods of leave in accordance with the applicable rules. However, the applicant had refused to talk to those who had sought to approach him. Nor would he agree to follow the relevant rules, such as those on testing for drug use. Although the applicant’s choices had to be viewed partly as a consequence of his personality disorder, this could not mean that his failure to benefit from the existing services rendered the circumstances incompatible with the Convention. There were signs, however, that his attitude was not totally dismissive as he had regular conversations with a psychiatrist and had interaction with the prison doctor and some employees at the institution.
20. The court noted that there was a legal basis for applying the existing regulations ‒ including the rules regarding personal possessions ‒ to the applicant. However, it considered it problematic that rules and regulations intended for inmates and persons kept in preventive detention (forvaringsdømte) were being applied to a person who had been transferred from a compulsory mental health care environment. Although mindful of the fact that it was the protection of society which justified compulsory mental health care measures, the court was of the view that the existing rules and regulations could be practised somewhat more leniently in the case of an individual who had been sentenced to compulsory mental health care than in the case of regular detainees, for instance as regards personal devices for listening to music ‒ which other inmates were not allowed ‒ or the possibilities for accommodating the applicant’s wishes as regards furnishing cells or other rooms. The staff at the institution dealing with the applicant should therefore have experience in treating mentally ill persons, and the ways of treating him should not be provocative. In the court’s view, however, these were matters that the institution itself, together with the administration, had to clarify and adjust.
21. The High Court considered that the ward in which the applicant was detained was appropriate (“egnet”), and that a sufficient arrangement had been established for him through the adaptation of realities, two “earmarked” officers and offers of possibilities beyond what was given to persons serving their sentence and other detained persons (“forvaringsdømte”). The fact that the institution had not managed to further develop an individual programme for the applicant was above all due to the applicant’s difficult behaviour (kontrære opptreden). Although connected to his personality disorders, it would be wrong if a person could effectively “discharge himself” by refusing to accept any offers of help that were made to him.
22. In conclusion, the High Court found that the applicant’s further stay at the institution would not run contrary to Articles 3 or 5 of the Convention. With respect to the time spent handling the applicant’s request that he be discharged and whether there had been a breach of Article 5 § 4 of the Convention, the High Court disagreed with the District Court. In the High Court’s view, a processing time of slightly more than six months was acceptable, in particular when taking into account the fact that this time also covered the appointment of the experts and the carrying out of their work.
23. On 27 July and 14 August 2013 the applicant appealed against the High Court’s judgment.
24. On 18 September 2013 the applicant was refused leave to appeal to the Supreme Court.
COMPLAINTS
25. The applicant complains that his placement in Ila prison entails a violation of Article 5 § 1 (e) of the Convention: he is not undergoing any treatment, a situation which is not in accordance with the Supreme Court’s judgment of 2011, and all the other detainees at Ila are prisoners serving criminal sentences.
26. The applicant also complains that there has been a breach of his right under Article 5 § 4 of the Convention to take proceedings, since his request for a periodic review of his detention was not decided “speedily” by the domestic courts during the third set of proceedings. He complains under Article 13 that he did not have an effective remedy to address the delay in the District Court’s treatment of his case.
QUESTIONs TO THE PARTIES
1. Concerning the third set of proceedings, was the applicant deprived of his liberty in breach of Article 5 § 1 (e) of the Convention?
2. Did the length of the third set of proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention, comply with the “speed” requirement of Article 5 § 4 of the Convention?
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