Legal summary
October 2024
Haugen v. Norway - 59476/21
Judgment 15.10.2024 [Section II]
Article 2
Positive obligations
Article 2-1
Life
Failure to safeguard the life of the applicant’s son who suffered from psychiatric disorders and committed suicide in pre-trial detention in an ordinary prison unit: violation
Article 13
Effective remedy
Lack of an effective remedy for the applicant to obtain a determination of the alleged failure to protect his son’s right to life and to obtain satisfaction for the damage suffered: violation
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Civil claim for non-pecuniary damage under domestic tort law for human rights violations at the material time not an effective remedy: admissible
Facts – In 2019, the applicant’s son, X, who suffered from psychiatric disorders, was sentenced to compulsory mental-health treatment following an attempted murder and other criminal acts committed in a state of psychosis. He was admitted to a secure unit at an in-patient psychiatric department, IHT Reinsvoll. X’s state of health improved as a result of his hospitalisation and treatment with antipsychotic injections. On 11 December 2019 he was transferred to a municipal residential facility with fewer security restrictions, to live in shared housing with other patients. On 17 January 2020 he killed a fellow patient there and was charged with murder. Owing to the risk of his committing suicide, X was placed in pre-trial detention in unit 1 in Oslo Prison, where detainees in need of special health treatment were held and where he was under supervision every thirty minutes. On 30 January 2020, in view of the overall suicide risk, he was admitted to IHT Sanderud hospital where he was further diagnosed with an adjustment disorder. On 4 February 2020 he was returned to Oslo Prison as the acute risk of suicide was considered lower and was being managed within the framework of follow-up counselling. He was again placed in unit 1 but on 14 February 2020, after an overall assessment by the head of department, his supervision every thirty minutes was stopped. On 28 February 2020 he was moved to an ordinary prison unit. Two days later he committed suicide.
The applicant unsuccessfully sought to have criminal proceedings instituted against the various authorities he considered responsible for his son’s death.
Law – Article 2 (substantive):
(1) Admissibility – It had not been shown by the Government that at the time of lodging of the application any of the remedies they had relied on, whether alone or in combination, would have offered the applicant reasonable prospects of obtaining non‑pecuniary damages for the death of his son.
As regards the remedy of a declaratory judgment coupled with a claim for non-pecuniary damage, the Court noted that domestic law did not contain a specific provision on State liability for damage as a consequence of a violation of the Convention. Therefore, the applicant would have had to rely on the general provisions of Norwegian tort law, more specifically section 3-5 of the Compensation Act, which required intent or gross negligence for non-pecuniary damages to be awarded in a particular case. However, the applicant’s criminal complaints had already been rejected; the domestic authorities had found that no responsibility or fault on the part of the authorities could be established. The Oslo police had explicitly stated that there had been no grossly negligent breach of official duty or professional misconduct on the part of Oslo Prison, the prison healthcare service, the District Court or the judges which had been involved in the decision to place X in pre-trial detention.
Furthermore, a number of domestic sources had indicated that at the material time the legislative framework for awarding non-pecuniary damages to victims of breaches of the Convention had been unclear and uncertain.
The Supreme Court had clarified the issue with two judgments delivered in June 2014, awarding non-pecuniary damage for violations of the Convention with reference to its Article 13. In doing so, it had confirmed that there had been no statutory provision for granting such compensation. It further made clear, with reference to the 1999 Human Rights Act, that to the extent that there was a duty under the Convention to award non-pecuniary damage to the victims of a violation of their Convention rights, their claim should be accommodated by Norwegian law, without any further legislation in principle being needed. Although those rulings had created precedents for the future, filling in an apparent void in Norwegian law, they could not provide any redress for the applicant in the present case.
Most importantly, there were no factors justifying a departure from the general principle whereby the assessment of whether domestic remedies had been exhausted was carried out with reference to the date on which the application had been lodged before the European Court.
Nor could the remaining remedies relied on the Government be considered effective in the circumstances: section 2-1 of the Compensation Act related solely to pecuniary damage; section 4 of the Patient Injury Act expressly excluded from its ambit any compensation claims for non-pecuniary damage under section 3-5 of the Compensation Act, and the Norwegian Parliamentary Ombud could not issue binding decisions.
Conclusion: preliminary objection dismissed (exhaustion of domestic remedies).
(2) Merits – The Court held that the applicant’s mental disorders had been of considerable gravity and that his risk of suicide must have been well known to the authorities.
As regards the Government’s argument that X’s mental state had improved to such an extent that the authorities had no longer needed to be aware of his heightened risk of suicide, the Court noted that such a conclusion could not be accepted in the absence of any in-depth assessment of his risk of suicide following his release from IHT Sanderud. In any event, given all the circumstances, the authorities had known or ought to have known that X had been in a particularly vulnerable situation and at risk of self-harm, which had required special attention, monitoring of his situation and continuous assessment of his suicide risk.
As to the measures that had been taken by the authorities to mitigate the suicide risk, it did not appear that X had undergone a complete forensic psychiatric examination as recommended by the psychiatrist who had examined him immediately after his arrest. Although action had been taken to safeguard X’s life in Unit 1 and IHT Sanderud, following his return to Oslo Prison in February 2020 there had been a number of shortcomings in the authorities’ subsequent actions.
Firstly, it had remained unclear which of the various health authorities that had been involved in X’s case had assumed ultimate responsibility for his medical treatment and follow-up during his detention in Oslo Prison. Following his return to that prison, it seemed that he had not been provided with any sort of treatment or therapy for his suicidal thoughts or diagnosed adjustment disorder, and his mental state or risk of suicide had never been assessed. Between his return and his placing in the ordinary prison unit he had had only had two visits from senior psychiatrists, who had primarily come to administer prescribed antipsychotics and had had a short conversation with him. The lack of follow-up had been criticised by the County Governor as “a deviation from good practice” to provide routine healthcare to detainees by the prison healthcare service of such a degree as to amount to a “breach of professional care” on its part.
Secondly, the Court had serious concerns about the manner in which X had been transferred to an ordinary prison unit, where he had no longer been under close supervision and had unrestricted access to items suitable for taking his own life, such as strings and ropes, which he had ultimately used to take his own life two days later. There had been no detailed information, let alone documents, to show that any medical professionals had in fact been involved in the decisions to terminate his close supervision or to transfer him to an ordinary prison unit.
Accordingly, there had been serious deficiencies in the coordination of X’s medical care and in the communication between the various medical authorities involved in his case, which had resulted in X being provided with only limited medical attention and treatment after his return from IHT Sanderud, despite his diagnosed mental disorders and repeated suicidal thoughts. Ultimately, that had culminated in his transfer to an ordinary prison unit, where he no longer had the benefit of reinforced care and supervision and where he took his life only two days later. The authorities therefore had not done everything that could reasonably have been expected of them to safeguard the life of the applicant’s son, who had been entirely under their control.
Article 13:
In view of the Court’s finding under Article 2 the applicant’s complaint was “arguable” for the purposes of Article 13 taken in conjunction with that provision. The Court had found within the framework of the Government’s preliminary objection for non-exhaustion of domestic remedies under Article 2, that the applicant had not had available to him an appropriate means of obtaining a determination of his allegations that the authorities had failed to protect his son’s right to life and the possibility of including of obtaining an enforceable award of compensation for the damage suffered thereby. That was an essential element of a remedy under Article 13 for a bereaved parent.
Conclusion: violation (unanimously).
Article 41: EUR 30,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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