EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 17391/90
E (No. 2)
against
Norway
REPORT OF THE COMMISSION
(adopted on 18 October 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11 - 14) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 63). . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 15 - 59) . . . . . . . . . . . . . . . . . . . . 3
a. The background
(paras. 15 - 39) . . . . . . . . . . . . . . . . . 3
b. The expiry of the security
measure authorisation
(paras. 40 - 56) . . . . . . . . . . . . . . . . . 6
c. Subsequent developments
(paras. 57 - 59) . . . . . . . . . . . . . . . . .12
B. Relevant domestic law
(paras. 60 - 63) . . . . . . . . . . . . . . . . . . . .13
III. OPINION OF THE COMMISSION
(paras. 64 - 101) . . . . . . . . . . . . . . . . . . . . . .17
A. Complaints declared admissible
(para. 64) . . . . . . . . . . . . . . . . . . . . . . .17
B. Points at issue
(para. 65) . . . . . . . . . . . . . . . . . . . . . . .17
C. As regards Article 5 para. 1 of the Convention
(paras. 66 - 96) . . . . . . . . . . . . . . . . . . . .17
a) Article 5 para. 1 c
(paras. 78 - 84) . . . . . . . . . . . . . . . . .20
b) Article 5 para. 1 e
(paras. 85 - 95) . . . . . . . . . . . . . . . . .21
CONCLUSION
(para. 96) . . . . . . . . . . . . . . . . . . . . . . .23
TABLE OF CONTENTS
Page
D. As regards Article 5 para. 3 of the Convention
(paras. 97 - 99) . . . . . . . . . . . . . . . . . . . .23
CONCLUSION
(para. 99) . . . . . . . . . . . . . . . . . . . . . . .24
E. Recapitulation
(paras. 100 - 101) . . . . . . . . . . . . . . . . . . .24
DISSENTING OPINION OF Mr. H.G. SCHERMERS. . . . . . . . . . . . . .25
APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . .26
APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . .39
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. In the
proceedings before the Commission the applicant is represented by
Mr. Knut Rognlien, a lawyer practising in Oslo.
3. The application is directed against Norway. The
respondent Government are represented by their Acting Agent,
Mr. Sven Ole Fagernæs of the Solicitor General's Office.
4. From 1978 until 1990 the applicant was almost constantly in
prison or in another correctional facility, most of the time not
serving an actual prison sentence but in preventive detention (sikring)
authorised by the Norwegian courts. One such authorisation expired on
25 February 1990. The application, as declared admissible, concerns the
applicant's detention from 25 February 1990 until 15 May 1990. The
applicant considers that his detention during this period did not
comply with the requirements of Article 5 of the Convention.
B. The proceedings
5. The application was introduced on 17 September 1990 and
registered on 5 November 1990.
6. On 2 December 1992 the Commission (Second Chamber) 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 in so far as it concerned the issues under Article 5 of the
Convention. The remainder of the application under Articles 3 and 6 of
the Convention and Article 4 of Protocol No. 7 to the Convention was
declared inadmissible.
7. Following an extension of the time-limit fixed for that purpose
the Government's observations were submitted on 15 March 1993. The
applicant's observations in reply were submitted on 6 May 1993.
8. On 31 August 1994 the Commission declared the application
admissible.
9. The text of the Commission's final decision on admissibility was
sent to the parties on 27 September 1994 and they were invited to
submit further information or observations on the merits as they
wished. The applicant and the Government submitted further
observations on 11 November 1994 and 3 February 1995 respectively.
10. 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
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
12. The text of this Report was adopted on 18 October 1995 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
13. 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.
14. The Commission's decisions on the admissibility of the
application are attached as Appendices I and II. 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
a. The background
15. In 1965 the applicant was involved in a traffic accident in which
he suffered serious brain damage. He subsequently showed a distinct
tendency to become aggressive.
16. In 1967 he was convicted of offences under sections 227, 228 and
292 of the Norwegian Penal Code (assault and inflicting bodily harm)
and sentenced to preventive detention for a maximum period of five
years in accordance with section 39 para. 1 (e) of the Penal Code. In
an expert psychiatric opinion obtained at that time, he was declared
mentally ill (sinnssyk) and he spent the period from May 1967 to
July 1972 in mental hospitals.
17. From 1973 to 1978 the applicant was detained for a period of
approximately four years at either Telemark Central Hospital or
Reitgjerdet Mental Hospital in accordance with the provisions of the
Mental Health Act (lov om psykisk helsevern).
18. In 1978 the applicant was placed under "judicial observation"
(judisiell observasjon) after having assaulted his father. The expert
psychiatric opinion obtained at that time concluded that he was not
mentally ill but had an underdeveloped and permanently impaired mental
capacity (mangelfullt utviklede og varig svekkede sjelsevner) and that
there was a clear risk of his committing further criminal offences.
19. By a judgment of 26 June 1978 the District Court (herredsrett)
of Kragerø convicted the applicant of an offence under section 228 of
the Penal Code. It sentenced him to sixty days in prison and authorised
the use of security measures under section 39 para. 1 (a) to (f) of the
Penal Code for a maximum period of five years.
20. On 3 July 1978 the prosecuting authority decided to detain the
applicant in accordance with section 39 para. 1 (e) in a security ward
at Ila National Penal and Preventive Detention Institution ("Ila").
21. On 21 January 1980 the Ministry of Justice decided, pursuant to
section 39 para. 1 (a) to (c), to release the applicant on the
condition, inter alia, that he resided at his parents' home. Owing to
a number of violent incidents, the applicant was however rearrested,
and by a judgment of 15 June 1980 the District Court of Kragerø
sentenced him to ninety days' imprisonment, which sentence was deemed
to have been served in detention on remand.
22. On 24 July 1980 the Ministry of Justice decided to place the
applicant in preventive detention once more at Ila in accordance with
section 39 para. 1 (e). On 2 June 1981 he was released to his parents'
home under preventive supervision in accordance with section 39
para. 1 (a) to (c).
23. A number of unfortunate episodes led the Ministry of Justice to
decide under section 39 para. 1 (e) to detain the applicant again. He
returned to Ila on 17 July 1981.
24. On 5 February 1982 the Ministry of Justice decided to apply
section 39 para. 1 (f) of the Penal Code and on 16 February the
applicant was sent to Oslo District Prison. On 4 November 1982 he was
transferred to Ullersmo National Prison ("Ullersmo").
25. Whilst so detained, the applicant was convicted by the District
Court of Asker and Baerum on 18 March 1983 and sentenced to six months'
imprisonment for assaulting prison staff at Ila and Ullersmo on three
occasions. The expert psychiatric opinion obtained for the trial
concluded, as before, that the applicant was not mentally ill but
suffered from an underdeveloped and permanently impaired mental
capacity.
26. With regard to the question of security measures, the court
pointed out that the information available showed that detention in a
prison or similar institution was inappropriate and had a destructive
influence on the applicant. The court found that he clearly needed
psychiatric care and concluded that everything should be done to give
him adequate treatment. It accordingly authorised the prosecuting
authority to impose security measures under section 39 para. 1 except,
however, detention in a security ward or in a prison under
subsections (e) and (f).
27. Having served his sentence the applicant was released on
18 November 1983 and placed in a flat at Kragerø under the surveillance
of the local police. However, on 19 December 1983 he was arrested and
detained on remand, again charged with offences under sections 227 and
228 of the Penal Code. A further expert psychiatric opinion was
obtained. It reached the same conclusion as the two earlier ones.
28. By judgment of 20 September 1984 the District Court of Kragerø
found the applicant guilty on most of the charges brought against him
and sentenced him to 120 days' imprisonment. Furthermore, the court
authorised the prosecuting authority to use any of the security
measures mentioned in section 39 para. 1 of the Penal Code for a
maximum period of five years. It found that, having regard to the
applicant's almost total lack of self-control in certain situations and
to his physical strength, it could not rule out the use by the
competent authorities of preventive detention in a prison or in a
security ward under section 39 para. 1 (e) and (f), should this prove
necessary. Apparently there was such a need, since the applicant
remained at Ila.
29. The applicant appealed to the Supreme Court (Høyesterett) against
the decision as regards preventive detention. In a judgment of
12 January 1985 Justice Røstad stated inter alia on behalf of the
unanimous court:
(translation)
"I consider it beyond doubt that the scope of the security
measures should be extended as set out in the judgment now
appealed against. Like the District Court I find that the
requirements for imposing preventive detention are
fulfilled. (The applicant), who must be considered to have,
as required by section 39 (of the Penal Code), a deviant
character, presents a serious danger regarding new
offences, including threats - section 227. I may add that
it cannot be considered disproportionate to impose security
measures on such a clearly dangerous offender. In my view,
the protection of society requires that the authorities
should be able to impose security measures considered
necessary in order to prevent (the applicant) from
committing further serious offences.
In view of the summing-up of counsel for the defence, I
would point out that I find no basis for arguing that the
decision of a Norwegian court concerning the authorisation
to use security measures in a case like the present one
would violate (Article 3) of the ... Convention. It is for
the implementing authorities to ensure that the security
measure takes a form which in practice not only protects
the interests of society but also tries to promote those of
(the applicant), including his need for psychiatric
treatment."
30. On 7 November 1985 the applicant was transferred from Ila to
Ullersmo pursuant to a decision of the Ministry of Justice under
section 39 para. 1 (f) of the Penal Code.
31. On 29 October 1986 he was convicted by the District Court of
Asker and Baerum of having attacked a prison officer and was given a
suspended sentence of 45 days' imprisonment. On 12 January 1987 he was
transferred from Ullersmo to Sunnås Rehabilitation Centre near Oslo in
order to receive treatment from a psychologist for fourteen days.
Certain examinations were carried out, but the applicant was sent back
to Ullersmo after attacking one of the nurses.
32. On 24 February 1987 the applicant was sent to Reitgjerdet Mental
Hospital, where it was established that he was now psychotic. As he
thus met the requirements for compulsory placement, he was kept there
until 4 December 1987 on which date the hospital concluded that he was
no longer psychotic.
33. The applicant nevertheless stayed at the hospital on a voluntary
basis, but after some weeks he became aggressive towards other patients
and staff. As he refused to be placed in the ward for difficult
patients, he was sent back to Ullersmo, still under the authorisation
of the Ministry of Justice in accordance with section 39 para. 1 (f)
of the Penal Code.
34. With effect from 8 February 1988 the preventive measures were
changed. Under section 39 para. 1 (a) to (c) the Ministry of Justice
decided that the applicant should be released from Ullersmo, on
condition that he lived in a house at Skien under the supervision of
the Probation and After Care Service (kriminalomsorg i frihet).
35. On 19 April 1988 the applicant assaulted the social workers
supervising him and the Ministry of Justice decided on the same day to
replace preventive supervision under section 39 para. 1 (a) to (c) by
detention in a secure institution, at least for a short time, in
accordance with section 39 para. 1 (f). The applicant was transferred
to Arendal District Prison.
36. On 19 May 1988 he was released from Arendal District Prison and
moved to the house at Skien.
37. Following several violent incidents the Ministry of Justice
decided on 21 July 1988, in accordance with a recommendation from the
Probation and After Care Service, that preventive supervision at Skien
should cease and that the applicant was to be transferred to Ila under
section 39 para. 1 (e).
38. On 21 October 1988 the Ministry of Justice decided that the
applicant should be released and placed under preventive supervision
pursuant to section 39 para. 1 (a) to (c) of the Penal Code and he was
brought back to the house at Skien. However, as on several occasions
he violated the restrictions imposed on him the Ministry decided, in
December 1988, to detain him at Ila again in accordance with section 39
para. 1 (e).
39. On 11 January 1989 the applicant was convicted by the District
Court of Kragerø of offences under section 227 and section 228 in
conjunction with section 230 of the Penal Code (threats and assault).
He was sentenced to 120 days' imprisonment, which sentence was deemed
to have been served in detention on remand. However, he continued to
be detained at Ila under section 39 para. 1 (e) as authorised by the
Supreme Court on 12 January 1985 (see para. 28 above).
b. The expiry of the security measure authorisation
40. While detained again at Ila the authorities continued their
efforts to solve the problems of the applicant's placement. On
22 June 1989 an expert opinion was submitted to the Director of Ila
concerning the use of security measures. The expert, psychiatrist H,
recommended a project whereby the applicant, under proper surveillance,
could remain at liberty. In September 1989 a meeting was arranged at
Ila with representatives from the Telemark Mental Hospital, the
Telemark County physician (fylkeslegen), the Telemark Probation and
After Care Service, the applicant's lawyer, social workers and
psychiatrist H. No concrete proposals were adopted as certain points
needed further clarification.
41. On 26 October 1989 the Institution Board (anstaltrådet) at Ila
discussed the question of continuing preventive detention in the light
of the fact that the court authorisation to that effect would expire
on 25 February 1990. Following this meeting the majority of the Board
decided to recommend to the Vestfold and Telemark State Prosecutor
(Statsadvokaten i Vestfold og Telemark) to request the prolongation of
the authorisation to use security measures under section 39 para. 1 (a)
- (f) of the Penal Code.
The recommendation was forwarded to the State Prosecutor by
letter of 11 January 1990 in which the acting director of Ila inter
alia stated as follows:
(translation)
"(The applicant) has now been placed, for approximately one
year, in closed preventive detention (lukket sikring) at
Ila. During this period he has on several occasions acted
aggressively towards the prison officers. During previous
stays in the institution he has attacked employees and
shown that his threats may be serious. Since
23 December 1988 (the applicant) has been placed in a cell
of his own in section G since, for security reasons, it
could not be justified to offer him a place in the open
ward. Furthermore, (the applicant) has not been granted
leave of absence since I fear that due to (his) behaviour
in prison similar incidents might occur during such leave.
I refer to the fact that he has been convicted several
times for assault and threats, most recently by judgment of
(11) January 1989 when he was convicted of similar offences
committed while he was on leave in 1988.
...
(The applicant) has disclosed a deviant character from a
very young age. His behaviour and conduct do not appear to
have changed essentially since 1965 when he suffered brain
damage. In 1988 he was on three occasions transferred to
Skien under preventive supervision but every time it was
discontinued due to circumstances relating to (the
applicant). Therefore I consider it probable - or rather
very likely - that he will commit new offences involving
violence if he were to be released when the security
measure authorisation expires. The possibility also exists
that he would then commit far more serious offences than
those of which he has previously been convicted.
It has turned out to be impossible to make other
arrangements which also (the applicant) can accept. As
recently as 9 March and 23 May 1989 the Ministry of Justice
refused (the applicant's) requests to replace the detention
with preventive supervision. The arrangement proposed by
psychiatrist (H) appears to be more secure, but
considerably more expensive than the previous ill-fated
arrangements. ...
However, today there is no adequate alternative to
continuing preventive detention at Ila. Accordingly, I
would recommend renewed preventive detention upon expiry of
the security measure authorisation on (25) February 1990.
..."
42. On the basis of the above recommendation the Vestfold and
Telemark State Prosecutor "filed charges" (sette under tiltale) against
the applicant by "indictment" (tiltalebeslutning) of 2 February 1990
in order to obtain the Kragerø District Court's authorisation, pursuant
to section 39, para. 3, second sentence, of the Penal Code, to prolong
by three years the period during which security measures of the Penal
Code could be used.
43. On 7 February 1990 the Chief of Police requested the District
Court to detain the applicant on remand for a period of four weeks in
accordance with section 171 of the Code of Criminal Procedure (Straffe-
prosessloven) in order to obtain a medical opinion to be used during
the forthcoming hearing concerning the question of further
authorisation to use security measures. It was noted that the previous
authorisation would expire on 25 February 1990.
44. On 12 February 1990 the District Court considered the question
of detention on remand. The applicant maintained that a detention on
remand beyond 25 February 1990 would be illegal, and that such
detention would mean that he would be punished for the same offences
twice. He furthermore alleged that the only reason why the authorities
requested his detention on remand was because they had failed to
proceed with the case although they had known for five years when the
authorisation to use security measures would expire.
45. In its decision of 12 February 1990 to detain the applicant on
remand for a period of four weeks beyond 25 February 1990 the District
Court stated:
(translation)
"In accordance with Norwegian law the prosecuting authority
shall consider and, where appropriate, determine the
question of prolonging the period during which security
measures can be used, even if the person in question has
not committed new criminal offences, cf. section 39,
para. 3, of the Penal Code.
...
In addition section 171, para. 2 in fine, of the Code of
Criminal Procedure authorises the use of detention on
remand in cases were there is a need for such detention
before a new decision on security measures can be taken.
The requirements are that continuing use of preventive
measures is the most likely outcome of the case and that
one of the specific detention requirements of section 171,
para. 1, is fulfilled. In this case it is the requirement
no. 3 in section 171, para. 1, which is relevant - the risk
of new criminal offences which carry more than 6 months'
imprisonment.
...
The security measure issues cannot be examined before
25 February 1990. This is due to the fact that a necessary
expert opinion will not be ready before that date.
...
The Court finds that there is reason to grant the
prosecutor's request, cf. (the above-mentioned provisions
of the Code of Criminal Procedure).
The Court finds it very likely that (the applicant) - if
released in two weeks - will commit criminal offences such
as threats (section 227 of the Penal Code) and assault
(section 228). He has without doubt strong character
deviations, little tolerance and easily threatens people's
life and health, and also attacks them. Today he rejects
any form of supervision proposals. The Court refers in its
evaluation first of all to what has happened earlier. In
the Supreme Court's decision of 1985 there is a thorough
account regarding the previous period. Since 1985 he has
been convicted twice for violations of sections 227
and 228. Psychiatrist (H) must be understood as also
considering that (the applicant), due to his weak impulse
control and impaired capacity to control himself, will find
himself in situations where he reacts with verbal threats
if he is released and that things will - despite his good
intentions - go wrong.
Furthermore, it is likely that the case will end with the
use of security measures against (the applicant) - for one
or more years and with one or more of the measures
mentioned in section 39, para. 1 (a) to (f), of the Penal
Code. It suffices here to refer to the fact that the Ila
prison authorities recommend this and to the fact that
psychiatrist (H) has drawn up a new plan for security
measures.
In the present circumstances the Court cannot see that the
detention is a disproportionate step. (The applicant's)
case is sad and tragic. The Court cannot consider only what
is in his interest but must also consider the risk of the
applicant exposing others to fear and danger. As far as the
Court can see from the documents now, it appears that the
outcome will be the use of security measures to be
implemented at Skien which should work better than the last
programme and which will provide him a much better life
than during the last 14 months."
46. The applicant appealed against this decision to the Agder High
Court (Agder Lagmannsrett). On 23 February 1990 the High Court upheld
the decision of the lower court and added:
(translation)
"It is clear that according to Norwegian law it has been
assumed until now that it is possible to prolong the period
of detention even if the person concerned has not committed
any crimes during that period. The High Court does not find
that such an arrangement violates Article 4 of
Protocol No. 7 to the Convention concerning a new
conviction of a crime of which he has already been
convicted. The requirement in law that the court shall fix
a maximum period for security measures is based, inter
alia, on concern for the convicted person, i.e. to secure
that he will have a judicial review after a certain period
of time of the necessity of the continuation of security
measures.
...
The High Court has no doubt that there is a very obvious
risk that (the applicant) will commit new criminal offences
if he is released at the end of the period of preventive
detention without the prison or the prosecuting authorities
having any control over him. ... In order to prevent new
acts of violence it is necessary that he is taken care of
also after the security measure period has expired.
Accordingly, there is a need for detention on remand and a
very considerable probability of an authorisation of
further security measures.
...
The High Court notes that detention on remand does not
appear to be a disproportionate measure. Considerations for
the protection of society must have priority over (the
applicant's) interest in being released.
The fact that the request for detention on remand of
7 February 1990 ... is based on the ground that time is
needed in order to obtain an additional expert opinion is,
in the High Court's view, of no relevance to the question
of detention. The hearing concerning the question of
continuing security measures cannot be held until an
opinion has been submitted also by another expert in
psychiatry. ... Until the hearing can be held it is
necessary to take care of (the applicant) due to the danger
of a relapse into crime.
The High Court understands the hopelessness expressed by
(the applicant's) counsel concerning the fact that a
programme for (the applicant) has still not been made.
However, it cannot be maintained that detention on remand -
having regard to the circumstances of the case - even
considering the treatment (the applicant) has previously
received, would amount to a violation of Article 3 of the
Convention."
47. The applicant appealed against this decision to the Supreme
Court. On 16 March 1990 the Appeals Selection Committee of the Supreme
Court (Høyesteretts kjæremålsutvalg) rejected the appeal. In its
decision the Court stated:
(translation)
"In accordance with section 39, para. 3, second sentence,
(of the Penal Code) the court must in cases involving
security measures fix a maximum period beyond which no
measures can be taken without the court's permission. A
decision concerning the prolongation of this authorisation
does not mean that the person in question is convicted or
punished again for those offences which constituted the
basis for the judgment allowing the use of security
measures. That these offences constitute the basis for
using security measures has already been decided through
this judgment. What is relevant for the question whether
the use of security measures should be prolonged beyond the
initial maximum period fixed is an evaluation of the other
circumstances which provide the reasons for using security
measures; the person's mental capacity and the risk of
further criminal offences being committed. That the period
of security measures may be prolonged, if there is reason
to do so after such an evaluation, follows from the
judgment allowing the use of security measures read in
conjunction with section 39, para. 3, second sentence.
It follows from this that the High Court did not base its
decision on an incorrect interpretation of Article 4
para. 1 of Protocol No. 7 to the Convention when it assumed
that a prolongation of the period of preventive measures in
accordance with section 39, para. 3, second sentence, of
the Penal Code was not contrary to the Convention
provision.
The Court does not find either that the High Court's
decision is based on an incorrect interpretation of
Articles 3 or 6 of the Convention."
48. The applicant accordingly remained at Ila, in detention on
remand, after the Supreme Court's authorisation of 12 January 1985
expired on 25 February 1990.
49. On 20 March 1990 the District Court prolonged the detention until
23 April 1990 stating as follows:
(translation)
"The basis for the continuing detention - both factual and
legal - is the same as when the Court examined the
detention question on 12 February 1990, cf. also the
decisions of the High Court and the Appeals Selection
Committee of the Supreme Court.
The Court does not consider the extension to be
disproportionate either. With reference, among others, to
the recommendation of the Ila Institution Board and
psychiatrist (H's) submissions during the court session of
12 February 1990, it is likely that the case will result in
a prolongation of the authorisation to use security
measures against (the applicant). The fact that the
question of the prolonged use of security measures ought to
have been decided before the expiry of the period
authorised cannot constitute a reason for release. ..."
50. The applicant appealed against this decision to the Agder High
Court.
51. On 22 March 1990 the expert opinion was submitted to the Kragerø
District Court. It concluded as follows:
(translation)
"1. It is questionable whether (the applicant) can be
regarded as a person with an underdeveloped mental
capacity.
2. (The applicant) suffers from a permanently impaired
mental capacity.
3. (The applicant) is not in a state of insanity during the
examination and there is no sign of reduced consciousness.
4. Prolonged authorisation to use security measures ought
not to be granted and in case it is, it ought to exclude
detention in a prison or in a security ward."
52. On 30 March 1990 the Agder High Court upheld the District Court's
decision of 20 March 1990. The High Court stated as follows:
(translation)
"The Court finds that there is a great risk that (the
applicant) will commit criminal acts which are punishable
by imprisonment for a term exceeding six months if he were
to be released now and that, therefore, continued detention
on remand is necessary until the question of prolonging the
authorisation to use security measures can be examined in
court. The Court disagrees with counsel for (the applicant)
that it is unlikely that such prolongation will be granted.
A release without having examined the question of
authorising the use of security measures appears to be so
questionable, in the light of the risk of new criminal
acts, that detention on remand until the case may be
examined does not appear to be a disproportionate measure.
Nor does it appear to be contrary to Article 5 para. 3 of
the European Convention on Human Rights. The Court also
refers to the fact that the prolongation of the detention
on remand is based on the need to re-schedule the case as
it will be necessary to replace the judge ..."
53. On 19 April 1990 the Appeals Selection Committee of the Supreme
Court rejected the applicant's appeal against the above decision of the
High Court.
54. On 20 April 1990 the Kragerø District Court extended the period
of detention on remand by four weeks, until 21 May 1990. The Court
referred in substance to its previous decisions of 12 February and
20 March 1990.
55. On 25 April 1990 the Medico-Legal Council (Den rettsmedisinske
Kommission) rejected the medical expert opinion of 22 March 1990 and
requested the submission of a revised opinion in the case.
56. On 14 May 1990 the Prosecutor General (Riksadvokaten) withdrew
the request for a prolongation of the authorisation to use security
measures against the applicant. He was accordingly released on
15 May 1990.
c. Subsequent developments
57. During the months of July, August and September 1990 the
applicant committed several criminal acts of threats and assault. As
a consequence he was arrested on 24 September 1990 and detained on
remand until 15 November 1990. By judgment of 13 February 1991 the
applicant was convicted inter alia of violations of sections 227 and
228, illegal threats and assault, and sentenced to seven months'
imprisonment. Furthermore, the District Court authorised the use of
security measures pursuant to section 39 para. 1 (a) to (f) of the
Penal Code for a period of three years. This judgment was upheld by the
Supreme Court on 1 November 1991, excluding only the security measure
set out in section 39 para. 1 (c).
58. In the meantime the applicant had been arrested again, on
16 May 1991, and detained on remand. By judgment of 11 July 1991 he was
sentenced to an additional ninety days' imprisonment for further
violations of inter alia sections 227 and 228 of the Penal Code. He was
released on 13 July 1991. He served the remaining part of the sentence
from 14 January until 16 April 1993.
59. By judgment of 29 June 1994 the applicant was sentenced by the
Kragerø District Court to ten months' imprisonment having been found
guilty on 32 counts of assault and threats from December 1991 until
April 1994. It does not appear that the applicant appealed against this
judgment. Whereas the applicant has been called to serve the prison
sentence imposed, the authorities have not made use of the Supreme
Court authorisation of 1 November 1991 to use security measures.
B. Relevant domestic law
60. Section 39 of the Penal Code in its relevant parts reads as
follows:
(translation)
"Section 39
1. If an otherwise punishable act is committed in a state
of insanity or unconsciousness or if a punishable act is
committed in a state of unconsciousness due to
self-inflicted intoxication, or in a state of temporarily
reduced consciousness, or by someone with an
underdeveloped or permanently impaired mental capacity, and
there is a danger that the offender, because of his
condition, will repeat such an act, the court may decide
that the prosecuting authority, as a security measure,
shall
a. assign or forbid him a particular place of residence,
b. place him under surveillance by the police or a
specially appointed probation officer and order him to
report to the police or the probation officer at designated
intervals,
c. forbid him to consume alcoholic beverages,
d. place him in secure private care,
e. place him in a mental hospital, sanatorium, nursing
home or security ward, where possible, in accordance with
the general provisions promulgated by the King,
f. keep him in preventive detention.
2. If such condition involves a danger of acts of the
kind covered by sections 148, 149, 152, subsection 2, 153,
subsections 1, 2 or 3, 154, 155, 159, 160, 161, 192 - 198,
200, 206, 212, 217, 224, 225, 227, 230, 231, 233, 245,
subsection 1, 258, 266, 267, 268 or 292, the court shall
decide to apply such security measures as are mentioned
above.
3. These measures are terminated when they are no longer
regarded as necessary, but may be resumed if there is
reason to do so. The security measures listed under (a)-(d)
may be employed concurrently.
The court shall determine the maximum period for which
security measures may be imposed without its further
consent.
4. Unless the court has decided otherwise, the
prosecution may choose between the above-mentioned security
measures.
The decision to terminate, resume or alter a security
measure is made by the ministry.
Before a decision about security measures or their
termination is made, the opinion of a medical specialist
must normally be obtained. The same procedure should be
followed at regular intervals during the period in which
security measures are in force."
61. Section 171 of the Code of Criminal Procedure reads as follows:
(translation)
"Section 171
Any person who with just cause is suspected of one or more
acts punishable by law with imprisonment for a term
exceeding six months may be arrested when:
1) there is reason to fear that he will evade prosecution
or the execution of a sentence or other precautions;
2) there is an immediate risk that he will interfere with
any evidence in the case, e.g. by removing clues or
influencing witnesses or accomplices;
3) it is deemed to be necessary in order to prevent him
from again committing a criminal act punishable by
imprisonment for a term exceeding six months; and
4) he himself requests it for reasons that are found to
be satisfactory.
When proceedings relating to security measures have been
instituted, or it is probable that such proceedings will be
instituted, an arrest may be made regardless of whether a
penalty may be imposed, as long as the conditions in
para. 1 are otherwise fulfilled. The same applies when a
judgment in favour of security measures has been pronounced
or it is a question of extending the maximum period for
using security measures."
62. Sections 227 and 228 of the Penal Code read as follows:
(translation)
"Section 227
Any person who in words or deeds threatens to commit a
criminal act, punishable by law with simple imprisonment
exceeding one year or imprisonment exceeding six months, in
such a way that the threat is likely to inspire in some
other person serious fear, or any person who contributes to
the execution of such a threat, shall be liable to a fine
or to imprisonment for any term not exceeding three years.
In aggravating circumstances cf. section 232, third
sentence, any term of imprisonment not exceeding six years
may be imposed.
Without a request from the injured party public prosecution
shall not be instituted unless the threat is directed
against an indefinite plurality or it is required by other
general interests."
"Section 228
Any person who commits violence against, or in other ways
offends the person of others, or contributes to the
execution of such an act, is liable to a fine or to any
term of imprisonment not exceeding six months.
If the offence results in damage to the person or his
health, or causes considerable pain, any term of
imprisonment not exceeding three years may be imposed, or
any term of imprisonment not exceeding five years where it
causes death or grievous bodily harm.
Where the offence has been reciprocated by a similar
offence, or where the offence reciprocates a previous
offence or defamation, the penalty may be remitted.
Public prosecution shall not be instituted except where
requested by the injured party unless
a) the offence caused death, or
b) the offence is committed against the accused's
previous or present spouse, or
c) the offence is committed against the accused's
children or the children of the accused's spouse, or
d) the offence is committed against the accused's kin in
lineal ascent, or
e) where the general interest so requires."
63. Chapter 2, sections 3 and 5 of the Mental Health Act read as
follows:
(translation)
"Section 3
When on account of his mental state an individual cannot
himself ensure that he receives the medical supervision and
psychiatric health care he needs and his nearest relatives
also fail to ensure that he does so, the public authority
shall see to it that he is examined by a medical
practitioner and otherwise do what is required to get him
into care.
If after a personal examination a medical practitioner
finds it necessary, and his nearest relative or a public
authority so requests, the patient may be admitted to a
hospital or kept in another place where proper care can be
provided, but not for more than three weeks without his own
express consent, unless the conditions set out in section 5
are met.
The medical practitioner shall inform the patient of his
right to appeal against the decision before the supervisory
board. The appeal does not have suspensive effect unless
the medical practitioner decides otherwise."
"Section 5
Persons suffering from serious mental illness may be
admitted to hospital without their own consent if their
nearest relatives or a public authority so desire, and if
the senior physician at the hospital considers that
admission on the basis of the patient's state of health is
necessary in order to prevent him from suffering harm or
that the prospect for recovery or substantial improvement
is jeopardised or that the patient presents a serious
danger to himself or others.
The senior physician may, through the supervisory board,
request the presentation and registration of such testimony
as is considered to be of importance for assessing whether
the conditions of the Act pertaining to admission have been
met. The rules set out in section 9 para. 2 second sentence
and para. 10 third sentence shall similarly apply.
Persons admitted to hospital may be detained in the
hospital without their own consent if the conditions
stipulated in the first paragraph, or second paragraph, are
met. However, this does not apply if the admission has been
effected under section 4.
The patient, his nearest relative or the authority who has
requested the admission, may appeal against the decision of
the senior physician to the supervisory board. This also
applies if the senior physician has refused to admit or
detain the patient. The appeal does not have suspensive
effect unless the supervisory board rules otherwise.
When a person is admitted to or detained in a hospital in
accordance with this section, the senior physician shall
immediately inform the supervisory board accordingly. If
the patient is admitted or detained at the request of the
authorities, the senior physician shall also inform the
patient's nearest relatives. The patient and his nearest
relatives shall always be informed of their right to bring
the matter of the patient's admission or discharge, as well
as complaints about the medical treatment, before the
supervisory board."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
64. The Commission has declared admissible the applicant's complaints
that his detention from 25 February 1990 until 15 May 1990 did not
fulfil any of the conditions set out in Article 5 para. 1 a - f
(Art. 5-1-a-f) and, assuming Article 5 para. 1 c (Art. 5-1-c) were to
apply, that the length of the detention did not comply with the
requirements of Article 5 para. 3 (Art. 5-3) of the Convention.
B. Points at issue
65. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 5 para. 1
(Art. 5-1) of the Convention;
- whether there has been a violation of Article 5 para. 3
(Art. 5-3) of the Convention.
C. As regards Article 5 para. 1 (Art. 5-1) of the Convention
66. The applicant has alleged a violation of Article 5 para. 1
(Art. 5-1) of the Convention which reads as follows:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
a. the lawful detention of a person after conviction by
a competent court;
b. the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order
to secure the fulfilment of any obligation prescribed by
law;
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having
done so;
d. the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal
authority;
e. the lawful detention of persons for the prevention of
the spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of
a person against whom action is being taken with a view to
deportation or extradition."
67. The applicant maintains that his detention from 25 February 1990
until 15 May 1990, following the expiry of the Supreme Court's
authorisation to use security measures, does not comply with any of the
requirements for depriving a person of his liberty set out in the above
provision. In particular the applicant maintains that in respect of
Article 5 para. 1 c (Art. 5-1-c) he was at the relevant moment in time
not charged with having committed any criminal offences, and the fact
that he subsequently committed new offences is of no relevance as the
Norwegian courts were called upon to decide in the matter on the basis
of the facts at the time of the decisions taken. Furthermore, the
applicant maintains that the real reason for his detention as from
25 February 1990 had nothing to do with any criminal activity or other
matter relevant under Article 5 para. 1 (Art. 5-1) of the Convention,
but was solely the fact that the Norwegian authorities had not managed
to have the question of prolonging the authorisation to use security
measures determined before the end of the initial period authorised by
the court.
68. As regards Article 5 para. 1 e (Art. 5-1-e) the applicant submits
that different rules apply in Norway if a person should be deprived of
his liberty due to the fact that he is of "unsound mind". However,
under Norwegian law the applicant was not, during the period of time
in question, considered to be of "unsound mind" to the extent that he
would fall under the Norwegian Mental Health Act. Furthermore, the
expression "lawful detention of a person of unsound mind" refers also
to matters relating to the execution of the detention in that it
should, according to the case-law of the European Court of Human
Rights, be effected in a hospital, clinic or other appropriate
institution authorised for that purpose. Otherwise the detention would
not be in conformity with Article 18 (Art. 18) of the Convention. In
the present case, however, the applicant was not detained for any
treatment purposes whatsoever but received the same "treatment" as any
other prison inmate in solitary confinement.
69. The Government submit that the applicant was remanded in custody
in accordance with a procedure prescribed by law in that the detention
was in conformity with the domestic procedural provisions of the Code
of Criminal Procedure. Furthermore, the Government maintain that the
detention was lawful under Norwegian law, having been confirmed on two
occasions by the High Court and the Supreme Court. Consequently, the
Government conclude that the general conditions for depriving the
applicant of his liberty under Article 5 para. 1 (Art. 5-1) of the
Convention were complied with.
70. The Government contend that the applicant's detention beyond
25 February 1990 was in accordance with Article 5 para. 1 c
(Art. 5-1-c) of the Convention which they consider contains three
alternative circumstances in which detention may be effected, including
detention when it is reasonably considered necessary to prevent someone
from committing an offence. The legal basis for the arrest and the
remand in custody was section 171 of the Code of Criminal Procedure
which corresponds to Article 5 para. 1 c (Art. 5-1-c) in that it
likewise permits detention if deemed necessary in order to prevent
someone from committing a criminal act. Moreover, in the present case
it was beyond doubt that the applicant would commit new criminal
offences if released when the court authorisation to use security
measures expired.
71. The Government also contend that the applicant's detention beyond
25 February 1990 was covered by Article 5 para. 1 e (Art. 5-1-e) of the
Convention. Over the years the applicant was subjected to several
medical examinations which all concluded that he has a mental disorder
characterised as an underdeveloped or permanently impaired mental
capacity. Furthermore the applicant's history amply illustrates why it
was necessary to remand him in custody.
72. The Commission recalls that if punishable acts are committed in
Norway by someone with an underdeveloped or permanently impaired mental
capacity and there is a danger that the offender, because of his, or
her, condition, will repeat such an act, the sentencing court, in
addition to imposing a fixed term of imprisonment, may, pursuant to
section 39 para. 1 of the Penal Code, authorise the prosecuting
authority - and subsequently the Ministry of Justice - to impose
security measures, including deprivation of liberty in a security ward
or preventive detention in prison, for a specified maximum period of
time. The principal objective is to protect society against further
offences by the person concerned, whose interests must nevertheless not
be disregarded. Thus although the authorities have, under section 39
of the Penal Code, a wide discretion in deciding which security measure
is to be imposed, this is to be terminated when it is no longer
regarded as necessary, but may be resumed, albeit only during the
authorised period of time, if there is reason to do so.
73. It follows from the applicant's previous application that
whenever the administrative authorities decide to implement security
measures involving the deprivation of a person's liberty
(cf. section 39 para. 1 (e) and (f)) this person has, despite the
initial authorisation fixed by the sentencing court, a right to a court
review of this measure in accordance with Article 5 para. 4 (Art. 5-4)
of the Convention. This is so in particular since, with the passage of
time, the link between the authorities' decision not to release or to
re-detain a person and the initial judgment may gradually become less
strong and a detention which was lawful at the outset might be
transformed into a deprivation of liberty which is arbitrary and,
hence, incompatible with Article 5 (Art. 5) of the Convention (Eur.
Court H.R., E. v. Norway judgment of 29 April 1990, Series A no. 181).
74. From section 30 para. 3, last sentence of the Penal Code it is
clear, however, that the authorisation to implement security measures
does not in any circumstances go beyond the maximum period initially
fixed by the sentencing court without a court having granted express
permission to do so.
75. In the present case the relevant initial authorisation to
implement security measures was granted by the Supreme Court on
12 January 1985 and it expired on 25 February 1990.
76. By "indictment" of 2 February 1990, i.e. within the authorised
period of time, the prosecuting authority instituted proceedings in the
Kragerø District Court in order to obtain a prolongation of the
authorisation to use security measures. However, as no court
authorisation pursuant to section 39 para. 3, last sentence of the
Penal Code was obtained before 25 February 1990, the prosecuting
authority requested the applicant's detention on remand pursuant to
section 171 of the Code of Criminal Procedure for the period beyond
that date in order to secure his continuing detention pending the
outcome of the proceedings instituted on 2 February 1990. The applicant
was so detained until 15 May 1990, i.e. 2 months and 20 days, when he
was released as the Prosecutor General had then decided not to pursue
the request for a prolongation of the authorisation to use security
measures.
77. The Commission recalls that in order to comply with Article 5
para. 1 (Art. 5-1) of the Convention such deprivation of liberty must
be covered by one of the cases exhaustively listed there. Four of these
cases, those in sub-paragraphs a, b, d and f obviously do not apply to
the deprivation of liberty complained of. It must therefore now be
examined whether sub-paragraphs c and e could be applied.
a) Article 5 para. 1 c (Art. 5-1-c)
78. The Commission considers that whether the applicant's detention
was ordered "in accordance with a procedure prescribed by law", is a
question which essentially refers back to domestic law, i.e. the need
for compliance with the relevant procedure under that law. The
Commission finds no reason to doubt that the procedural requirements
of Norwegian law were observed in the applicant's case. Furthermore,
the Commission considers that the applicant's detention was "lawful"
in the sense that it was examined and accepted by the Supreme Court
which found it to be in conformity with the substantive and the
procedural rules of domestic law.
79. However, in addition it is required that any deprivation of
liberty should be consistent with the purpose of Article 5 (Art. 5) of
the Convention, i.e. to protect individuals from arbitrariness (cf. for
example Eur. Court H.R., Wassink judgment of 27 September 1990, Series
A no. 185-A, p. 11, para. 24). The Commission recalls here that the
exhaustive list of permissible exceptions in paragraph 1 of Article 5
(Art. 5-1) of the Convention must be interpreted strictly (cf. Eur.
Court H.R., Ciulla judgment of 22 February 1989, Series A no. 148,
p. 18, para. 41).
80. The Commission also recalls that according to the case-law of the
European Court of Human Rights Article 5 para. 1 c (Art. 5-1-c) permits
deprivation of liberty only in connection with criminal proceedings.
This is apparent from its wording, which must be read in conjunction
both with sub-paragraph a and with paragraph 3, which form a whole with
it (cf. above mentioned Ciulla judgment, p. 16, para. 38 and Eur. Court
H.R., Lawless judgment of 1 July 1961, Series A no. 3, para. 14,
p. 52).
81. The facts of this case disclose that the authorities' fear that
the applicant, if released, might commit new criminal acts was
well-founded. Furthermore, Article 5 para. 1 c (Art. 5-1-c) of the
Convention sets out three alternative circumstances in which detention
may be effected, among which is included the situation "when it is
reasonably considered necessary to prevent his committing an offence"
(cf. Eur. Court H.R., De Jong, Baljet and Van den Brink judgment of
22 May 1994, Series A no. 77, p. 21, para. 44). However, the Commission
finds that the applicant's detention beyond 25 February 1990 pursuant
to section 171 of the Code of Criminal Procedure, was not based on, or
related to, any criminal act he had committed and the detention orders
had no connection in law with any investigations which might have been
pursued in this respect.
82. Moreover, the alternative in Article 5 para. 1 c (Art. 5-1-c) of
the Convention upon which the Government rely is not adapted to a
policy of general prevention directed against individuals who may
present a danger on account of their continuing propensity to crime.
This alternative for detention, in connection with criminal proceedings
only, does no more than afford the Contracting States a means of
preventing a concrete and specific offence. This can be seen both from
the use of the singular "an offence" and from the object of Article 5
(Art. 5), namely to ensure that no one should be dispossessed of his
liberty in an arbitrary fashion (cf. Eur. Court H.R., Guzzardi judgment
of 6 November 1990, Series A no. 39, p. 38, para. 102).
83. As already stated above the Commission considers that the
detention orders pursuant to section 171 of the Code of Criminal
Procedure were not made in the context of criminal proceedings
instituted against the applicant. His detention beyond 25 February 1990
was rather designed to keep him in prison while the authorities
obtained the necessary evidence for the forthcoming hearing regarding
the question of prolonging the authorisation to use security measures.
As evidence thereof the Commission refers to the prosecuting
authority's request for detention of 7 February 1990 which merely
relied on a need to obtain a medical opinion. Furthermore, the courts
did not mention any concrete and specific offence which the applicant
had to be prevented from committing, but referred to the general risk
of the applicant committing offences contrary to sections 227 and 228
of the Penal Code due to his alleged mental disorder. In respect of the
latter the Commission also notes that the question of the existence of
a mental disorder actually requiring a prolongation of the
authorisation to use security measures, was an issue which was to be
determined at a later stage. It does not therefore correspond to a
narrow interpretation of Article 5 para. 1 c (Art. 5-1-c) to rely
thereon in order to justify depriving an individual of his or her
liberty.
84. The Commission has not overlooked that the applicant's case, seen
as a whole, is very special and that the developments provided
justification for the courts' assumption that the applicant, once
released, would commit new offences. This does not, however, affect the
underlying principle which constitutes the basis for a strict
interpretation of the fundamental guarantees secured by Article 5
(Art. 5) of the Convention. Thus having regard to the above the
Commission finds that Article 5 para. 1 c (Art. 5-1-c) of the
Convention cannot be relied upon as a basis for the applicant's
detention from 25 February until 15 May 1990.
b) Article 5 para. 1 e (Art. 5-1-e)
85. The Government also maintain that Article 5 para. 1 e (Art. 5-1-
e) could be applied in the instant case.
86. The Commission recalls (cf. para. 63) that under the Norwegian
Mental Health Act persons suffering from serious mental illness may be
admitted to hospital without their own consent if their nearest
relatives or a public authority so desire, and if the senior physician
at the hospital considers that admission on the basis of the patient's
state of health is necessary inter alia in order to prevent him from
suffering harm or if he presents a serious danger to himself or others.
Whereas the Commission considers that the requirements of the Norwegian
Mental Health Act do not appear to be incompatible with the meaning
that the expression "persons of unsound mind" is to be given in the
context of the Convention, it is undisputed that the provisions of this
Act did not constitute the basis for the applicant's detention beyond
25 February 1990.
87. However, just as the Convention does not give any definition of
"a person of unsound mind" Norwegian legislation in this field does not
contain an exhaustive definition either and the Commission therefore
finds it necessary to examine whether, as the Government contend, the
applicant was in the circumstances of "unsound mind" to the extent that
Article 5 para. 1 e (Art. 5-1-e) could constitute a reason for his
detention.
88. In its Winterwerp judgment of 24 October 1979, the European Court
of Human Rights stated three minimum conditions which have to be
satisfied in order for there to be "the lawful detention of a person
of unsound mind" within the meaning of Article 5 para. 1 e
(Art. 5-1-e) : except in emergency cases, the individual concerned must
be reliably shown to be of unsound mind, that is to say, a true mental
disorder must be established before a competent authority on the basis
of objective medical expertise; the mental disorder must be of a kind
or degree warranting compulsory confinement; and the validity of
continued confinement depends upon the persistence of such a disorder
(Series A no. 33, p. 18, para. 39).
89. As regards the question of a true mental disorder the Commission
recalls that since 1978 the applicant has been diagnosed as having a
permanently impaired mental capacity and there has apparently not been
any significant improvement in that respect. However, whether this
mental disorder at the time in question in this case was of a kind
warranting continued compulsory confinement and whether the validity
of continued confinement depended upon the persistence thereof were
matters which the courts were in fact called upon to determine when
proceedings commenced in the Kragerø District Court on 2 February 1990.
Thus, it cannot be concluded that these two requirements were fulfilled
when the applicant was detained on remand on 25 February 1990 pending
the outcome of the court's examination of the prolongation issue on its
merits.
90. Furthermore, the lawfulness of any detention is required in
respect of both the ordering and the execution of the measure depriving
the individual of his liberty. It not only presupposes conformity with
domestic law but also, as confirmed by Article 18 (Art. 18) of the
Convention, conformity with the purposes of the restrictions permitted
by Article 5 para. 1 (Art. 5-1). In this respect it follows from the
very aim of Article 5 para. 1 (Art. 5-1) that no detention which is
arbitrary can be regarded as lawful. The Commission also considers that
there must be some relationship between the ground of permitted
deprivation of liberty relied on and the place and conditions of
detention. Thus, although Article 5 para. 1 e (Art. 5-1-e) is not in
principle concerned with suitable treatment or conditions, the
Commission finds that the detention of a person of "unsound mind" will
only be lawful for the purposes of Article 5 para. 1 e (Art. 5-1-e) if
effected in a hospital, clinic or other appropriate institution
authorised for that purpose (cf. Eur. Court H.R., Ashingdane judgment
of 28 May 1985, series A no. 93, p. 21, para. 44).
91. As stated above (para. 78) the Commission has no cause for
finding that the applicant's deprivation of liberty during the
contested period was unlawful in the sense of not being in accordance
with the relevant domestic law. It thus remains to be ascertained in
the light of the above principles whether it was "lawful" in the
autonomous sense of the Convention.
92. The Commission recalls that the applicant was the subject of
security measures, as authorised by the Supreme Court, until
25 February 1990 in the interest of public safety. Under this
authorisation the applicant could be detained, if necessary, in a
mental hospital, sanatorium, nursing home or security ward (cf. section
39 para. 1 (e) of the Penal Code) or in preventive detention (cf.
section 39 para. 1 (f)). At the time of the expiry of the above court
authorisation the applicant was detained in a security ward at Ila
National Penal and Preventive Detention Institution pursuant to section
39 para. 1 (e) of the Penal Code. It is undisputed that he did not
receive any particular treatment there.
93. It is likewise undisputed that the authorisation to keep the
applicant detained at Ila expired on 25 February 1990 and that section
39 of the Penal Code could thereafter no longer constitute the basis
for the applicant's detention. Thus, the applicant was subsequently
detained pursuant to section 171, last sentence of the Code of Criminal
Procedure. The Commission finds, however, that this detention was not
related to the applicant's mental illness but effected on the ground
that the prosecuting authority and the courts had not managed to
prepare and decide on the question of prolonging the authorisation to
use security measures, although it had been known for five years when
it would expire. Thus the conditions for detention of a person of
unsound mind were not fulfilled and the courts' reference to the
possibility of the applicant committing new criminal acts does not
suffice to detain him under Article 5 para. 1 e (Art. 5-1-e) which
calls for a narrow interpretation.
94. Consequently, the Commission finds that the applicant's continued
detention from 25 February until 15 May 1990 was not effected for a
purpose envisaged by Article 5 para. 1 e (Art. 5-1-e) of the
Convention.
95. To sum up the Commission finds that none of the permissible
exceptions enumerated in Article 5 para. 1 a - f (Art. 5-1-a) can be
relied upon in order to justify the applicant's detention from 25
February until 15 May 1990.
CONCLUSION
96. The Commission concludes, by twelve votes to one, that there has
been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.
D. As regards Article 5 para. 3 (Art. 5-3) of the Convention
97. The applicant alleges that, in so far Article 5 para. 1 c
(Art. 5-1-c) of the Convention applies, the length of his detention did
not comply with the requirements of Article 5 para. 3 (Art. 5-3) of the
Convention which reads:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 c of this Article (Art. 5-1-c)
shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to
appear for trial."
98. The Commission recalls (cf. paras. 78 - 84) that in the
circumstances of the present case Article 5 para. 1 c (Art. 5-1-c) does
not apply. Consequently, there is no room for the application of
Article 5 para. 3 (Art. 5-3) of the Convention either.
CONCLUSION
99. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 3 (Art. 5-3) of the Convention.
E. Recapitulation
100. The Commission concludes that there has been a violation of
Article 5 para. 1 (Art. 5-3) of the Convention (para. 96).
101. The Commission concludes that there has been no violation of
Article 5 para. 3 (Art. 5-3) of the Convention (para. 99).
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
(Or. English)
DISSENTING OPINION OF MR. H.G. SCHERMERS
Though I agree with much of the Commission's Report, I do not
share the final conclusion that Article 5 of the Convention has been
violated. Section 171, last sentence of the Norwegian Code of Criminal
Procedure may be interpreted as being concerned with a possible
discharge from detention of persons representing a danger to society.
In the Winterwerp judgment the Court accepted that in emergency cases
there may be exceptions to the rule that an individual should not be
deprived of his liberty unless he has been reliably shown to be of
unsound mind (Eur. Court H.R., Winterwerp judgment of 24 October 1979,
Series A no. 33, p. 18, para. 39). It cannot be inferred from the
Winterwerp judgment that the objective medical expertise must in all
conceivable cases be obtained before, rather than after, confinement
of a person on the ground of being of unsound mind. Where a provision
of domestic law is designed, amongst other things, to authorise
emergency confinement of persons capable of presenting a danger to
others, it would be impracticable to require thorough medical
examination prior to any arrest or detention (cf. also Eur. Court H.R.,
X v. the United Kingdom, Series A no. 46, p. 18-19, para. 41).
It is true that the Norwegian authorities should have taken their
decisions earlier. It cannot be true, however, that a really dangerous
mental patient must be released whenever procedural mistakes have been
made. Article 2 of the Convention obliges the Government to protect the
life of all citizens. Whether the applicant was so dangerous that his
release would threaten the lives of others is a question of fact to be
decided by the national courts. The task of the Strasbourg institutions
is to verify whether these courts acted fairly and reasonably when so
deciding.
In my opinion a detention on remand pursuant to section 171, last
sentence of the Code of Criminal Procedure, pending the outcome of a
request for the prolongation of the authorisation to use security
measures, is not incompatible with Article 5 para. 1 of the Convention.
The applicant is a man with a history of mental problems. He suffered
serious brain damage in 1965 following which he showed a distinct
tendency to become aggressive. Since 1967 he has been convicted on
numerous occasions of offences involving threats, assault and bodily
harm and no particular improvement in his state of mental health has
been found over the years. During the period when security measures
were authorised the applicant's stays outside institutions were made
conditional upon his being subject to strict surveillance and medical
supervision but all attempts nevertheless failed due to his aggressive
behaviour.
Regard must also be had to the specific system of detention. In
situations like the present it may only be implemented when it is a
question of extending the maximum period for using security measures
and in addition - as here - when necessary to protect the public. In
such circumstances the interest of the public may prevail over the
applicant's right to liberty to the extent of justifying an emergency
confinement in the absence of the usual guarantees implied in
paragraph 1 e of Article 5. On the facts of the present case, I think
the Norwegian courts had sufficient reason for considering that the
applicant's imminent liberty without any form of supervision
constituted, in view of his mental deficiencies, a danger to the
public. Accordingly, his detention beyond 25 February 1990 until
15 May 1990 was effected in accordance with Article 5 para. 1 e of the
Convention.
Full & Egal Universal Law Academy