Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 11701/85

E.

against

NORWAY

Report of the Commission

(adopted on 16 March 1989)

TABLE OF CONTENTS

page

I. INTRODUCTION (paras. 1-22 ) ........................... 1

A. The application

(paras. 2-4) ...................................... 1

B. The proceedings

(paras. 5-17 ) .................................... 1

C. The present Report

(paras. 18-22) .................................... 2

II. ESTABLISHMENT OF THE FACTS (paras. 23-80) ............ 4

A. Particular circumstances of the case

(paras. 23-61) .................................... 4

B. Relevant domestic law and practice

(paras. 62-80) .................................... 14

a. Section 39 of the Penal Code .................. 14

b. The Mental Health Act ......................... 20

c. The Code of Civil Procedure, Chapter 33 ....... 28

III. SUBMISSIONS OF THE PARTIES (paras. 81-120) ............ 34

A. The applicant

(paras. 81-95) .................................... 34

B. The Government

(paras. 96-120) ................................... 36

IV. OPINION OF THE COMMISSION (paras. 121-145) ............ 41

A. Point at issue

(para. 121) ....................................... 41

B. Article 5 para. 4 of the Convention

(paras. 122-145) .................................. 41

APPENDIX I: History of the proceedings

before the Commission ........................... 46

APPENDIX II: Decision on the admissibility

of the application .............................. 48

APPENDIX III: Partial decision on the admissibility

of the application .............................. 66

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. Before the

Commission he was represented by Mr. Knut Rognlien, a lawyer

practising in Oslo.

3. The application is directed against Norway and the respondent

Government were represented by Mr. Erik Møse of the Attorney General's

office, as Agent.

4. The applicant has been in prison or in another correctional

facility almost constantly since 1978, most of the time not

serving an actual prison sentence but in preventive detention

(sikring), authorised by the Norwegian courts, implemented by the

prosecuting authority and terminated, resumed or altered by the

Ministry of Justice in accordance with the Norwegian Penal Code

(straffeloven). The application, as declared admissible, concerns the

question whether the applicant, when detained by administrative

decision under the Norwegian Penal Code, could rely on an appropriate

procedure allowing a court to determine the lawfulness of this measure

as guaranteed by Article 5 para. 4 of the Convention.

B. The proceedings

5. The application was introduced on 13 May 1985 and registered

on 16 August 1985.

6. On 8 January 1986 the respondent Government were requested,

pursuant to Rule 40 para. 2, sub-para (a) of the Commission's

Rules of Procedure, to submit certain information as to the facts of

the case. This information was submitted by the Government on

7 March 1986 and the applicant's reply was submitted on 6 June 1986.

7. On 13 October 1986 the Commission decided in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure to invite the respondent

Government to submit before 9 January 1987 their observations in

writing on the admissibility and merits of the above complaint as well

as the applicant's complaint under Article 3 of the Convention

concerning his treatment.

8. Following an extension of the time-limit, the Government's

observations were submitted on 16 February 1987. The applicant's

observations in reply were submitted on 31 March 1987.

9. Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 13 March 1987.

10. On 7 October 1987 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

11. The hearing took place on 7 March 1988. The applicant was

represented by Mr. Knut Rognlien as counsel and by Mr. Øyvind Solberg,

advocate, as adviser.

12. The Government were represented by Mr. Erik Møse of the

Attorney General's office as agent, Mr. Robert W. Knudsen of the

Ministry of Foreign Affairs as co-agent, and by Ms. Kari Meling of the

Ministry of Justice, Ms. Mette Walaas from the Directorate of Health,

Mr. Roger Østbøl of the Ministry of Social Affairs, and

Mr. Karsten Helgeby of the Ministry of Foreign Affairs as advisers.

13. Following the hearing the Commission declared the applicant's

complaint under Article 3 of the Convention inadmissible and adjourned

the examination of the issue under Article 5 para. 4 of the

Convention. It was also decided to request the parties to submit

further observations on this particular issue.

14. The Government's further observations were submitted on

7 April 1988 and the applicant's further observations were submitted

on 8 April and 7 May 1988.

15. The Commission declared the issue under Article 5 para. 4 of

the Convention admissible on 12 May 1988.

16. The parties were then invited to submit additional

observations on the merits of the case. The applicant submitted

additional observations on 25 July 1988 and the Government submitted

additional observations on 26 August 1988.

17. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. Consultations with the parties took place between

16 May 1988 and 10 February 1989. The Commission now finds that there

is no basis upon which such a settlement can be effected at present.

C. The present Report

18. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

E. BUSUTTIL

A. WEITZEL

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C. L. ROZAKIS

Mrs. J. LIDDY

19. The text of this Report was adopted on 16 March 1989 and is

now transmitted to the Committee of Ministers of the Council of Europe

in accordance with Article 31 para. 2 of the Convention.

20. The purpose of the Report, pursuant to Article 31 para. 1 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.

21. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decisions on the admissibility of the application as Appendices II

and III.

22. The full text of the pleadings of the parties, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular facts of the case

23. In 1965 the applicant was involved in a traffic accident which

caused serious brain damage. This has subsequently led to a distinct

tendency to become aggressive.

24. In 1967 the applicant was convicted of having violated

Sections 227, 228 and 292 of the Norwegian Penal Code (assault and

inflicting bodily harm) and sentenced to preventive detention

(sikring) for a maximum period of 5 years in accordance with Section

39 para. 1 (e) of the Penal Code. In an expert opinion obtained at that

time, the applicant was declared mentally ill (sinnssyk) and he spent

the periods from 5 May 1967 to 5 September 1969 at Telemark Central

Hospital, and from 5 September 1969 to 13 July 1972 at Reitgjerdet

Mental Hospital. It does not appear from the facts established that

the applicant was released at any time during these periods. Neither

does it appear that he challenged the legality or necessity of further

detention during the five year period.

25. From 1973 to 1978 the applicant spent a total of approximately

4 years at either Telemark Central Hospital or Reitgjerdet Mental

Hospital in accordance with the provisions of the Mental Health Act

(lov om psykisk helsevern).

26. In 1978 the applicant was subjected to "judicial observation"

(judisiell observasjon) in relation to an episode of violence against

his father. The expert opinion now obtained concluded that the

applicant was not mentally ill but should be regarded as a person with

underdeveloped and permanently impaired mental capacity (mangelfullt

utviklede og varig svekkede sjelsevner). The risk of further criminal

offences was therefore imminent.

27. By judgment of 26 June 1978 pronounced by the District Court

(herredsrett) of Kragerø, the applicant was sentenced to 60 days in

prison and, at the request of the prosecuting authority, the Court

authorised the use of preventive detention under Section 39 para. 1

(a) to (f) of the Penal Code for a maximum period of five years,

should this prove necessary. In its judgment the Court pointed out

that preventive detention in a prison as set out in Section 39 para. 1

(f) should only be used as an emergency measure since such detention

was likely to have a negative influence on the applicant. Such

detention should therefore, according to the Court, only be imposed

insofar as it was necessary to protect the applicant's family and

himself from aggressive actions which could easily lead to very

serious incidents. The Court expected that the competent authorities

would take the necessary measures in order to avoid prolonged stays in

prison.

28. Due to the above recommendations of the Court, the Chief of

Police of Kragerø contacted the Telemark Central Hospital inquiring

whether they could admit the applicant. On 27 June 1978, however, the

acting chief physician of the hospital informed the Chief of Police

that the hospital could not receive the applicant. The hospital had

already been in charge of the applicant for a considerable period of

time, alternately in open and closed wards. It had, however, been

impossible to give him any treatment at all. On the contrary, he had

been a threat to both the staff and other patients. The hospital

considered the applicant as a brain-damaged deviant (psychopath)

(hjerneskadet karakterafviger (psykopat)) and psychiatric treatment

did not appear to open any possibilities for an improvement in his

situation.

29. The 60 days' imprisonment imposed by the Court on

26 June 1978 was considered served in detention on remand but as a

consequence of the above inquiries and on the authorisation of the

above judgment the prosecuting authority (statsadvokaten) decided, on

3 July 1978, to detain the applicant in accordance with Section 39

para. 1 (e) in a security ward at Ila National Penal and Preventive

Detention Institution, hereafter called Ila. The applicant arrived

there on 4 July 1978.

30. The question of continuing detention at Ila was taken up due

to the applicant's request of 8 September 1978 to be released under

protective surveillance (sikring i frihet) addressed to the prison

authorities. The Director of Ila forwarded the application to the

Ministry of Justice on 18 September 1978 informing the Ministry that,

although it would not be easy to find an appropriate solution to the

applicant's problems, it would not seem correct to place him in the

prison.

31. On 5 October 1978 the Ministry of Justice decided nevertheless

that the applicant should remain at Ila until further notice in

accordance with Section 39 para. 1 (e). It does not appear that the

applicant challenged this decision in any way.

32. On 10 January 1979 the applicant's lawyer applied to the

Ministry of Justice for the applicant's release from the detention at

Ila and his placement under protective supervision in accordance with

Section 39 para. 1 (a) to (c) and with the views expressed in the

court judgment of 26 June 1978. The application was supported by the

Director of Ila and it appears that the applicant, on 24 April 1979,

was released from Ila under a leave of absence scheme with assigned

residence at Skottun near Skien and subjected to restrictions under

Section 39 para. 1 (a) to (c).

33. However, after approximately one week he was back at Ila since

he did not comply with the conditions imposed. A subsequent leave of

absence scheme from Ila was arranged, with assigned residence at his

parents' home at Kragerø. However, the applicant refused to return to

Ila when the period of leave of absence had come to an end and he was

brought back to Ila by the police on 16 August 1979.

34. It furthermore appears that the authorities at Ila made an

arrangement with the Telemark Central Hospital to which the applicant

was transferred on 1 December 1979 and where he was provided with a

flat and work under a supervisory regime (vernet arbeid). However, on

1 January 1980 he was sent back to Ila because he behaved contrary to

the conditions for treatment on which he and the hospital had agreed.

35. By a letter of 17 December 1979 addressed to the Ministry of

Justice, the Director of Ila recommended to release the applicant

under protective surveillance in accordance with Section 39 para. 1 (a)

to (c) with placement at his parents' home at Kragerø. It was pointed

out that the applicant was obviously a psychiatric case and not fit

for placement in a prison. All rehabilitation projects had failed and

there was nothing more that could be done for the applicant at Ila.

The Director also considered that the applicant was under the

responsibility of the health authorities and therefore recommended

that the Ministry of Justice contact these authorities in order to

solve the question of the applicant's possible placement in a suitable

psychiatric institution.

36. On 21 January 1980 the Ministry of Justice decided to release

the applicant with assigned residence at his parents' home under

Section 39 para. 1 (a) to (c). The applicant arrived there on

4 February 1980. At the end of February 1980, however, the applicant

assaulted a person, in March 1980 he assaulted his father and in

April 1980 he threatened his parents to such an extent that they were

forced to leave their home. Due to these incidents the applicant was

arrested and detained on remand at Skien District Prison. By judgment

of 15 June 1980 the District Court of Kragerø sentenced the applicant

to 90 days' imprisonment, which sentence was considered to have been

served in detention on remand. During the remand period the applicant

was sent to Telemark Central Hospital twice but returned to Skien

District Prison since the hospital could not take care of him as he

threatened the staff and refused to take the prescribed medicine.

37. On 24 July 1980 the Ministry of Justice decided to place the

applicant in preventive detention again at Ila in accordance with

Section 39 para. 1 (e). He arrived there on 29 July 1980. A contact

was established with the Telemark Central Hospital and whilst in

preventive detention at Ila the applicant accepted to be treated with

medicine and he was transferred to the hospital on whose premises he

got his own flat. He was also repeatedly permitted to leave the

premises. He returned to Ila at the end of January 1981 and stayed

there until 2 June 1981 when he was again released to his parents'

home under protective surveillance and in accordance with Section 39

para. 1 (a) to (c) as decided by the Ministry of Justice.

38. The applicant's release under protective surveillance did not

prove very successful and after a number of unfortunate episodes the

Ministry of Justice decided to detain the applicant at Ila again under

Section 39 para. 1 (e). The applicant accordingly returned to Ila on

17 July 1981. It does not appear that the applicant in any way

challenged the decision to detain him again.

39. The applicant's placement at the security ward at Ila did not

prove successful either. The applicant attacked the prison personnel

on several occasions and he was as a consequence thereof often placed

in security cells. The prison authorities contacted Reitgjerdet

Mental Hospital in order to have the applicant transferred to the

hospital. However, it was considered that the applicant did not fulfil

the requirements for being placed there. Such a placement would

require that the applicant fulfilled the conditions for admission

under the Mental Health Act.

40. By letter of 16 September 1981 the Director of Ila requested

assistance from the Ministry of Justice to have the applicant

transferred to the psychiatric health care. Furthermore, the applicant

requested release under protective surveillance. It appears that the

Ministry, subsequent to its examination of the matter, concluded that

nothing could be done concerning the applicant's transfer to an

adequate place of treatment under the psychiatric health system unless

the situation developed and the applicant became psychotic within the

meaning of the Mental Health Act.

41. Due to the unfortunate circumstances at Ila the Ministry of

Justice decided on 5 February 1982 to apply Section 39 para. 1 (f) and

the applicant was transferred to the District Prison of Oslo on

16 February 1982. During the applicant's stay at the District Prison

of Oslo there was frequent contact with the Telemark Central Hospital

in order to transfer him there, if possible. It turned out, however,

that there was no such possibility and during a meeting of the prison

administration on 22 October 1982 it was considered that a transfer to

Ullersmo National Penitentiary would appear to be the best solution in

order to let the applicant receive a change of environment. The

applicant was accordingly transferred to Ullersmo where he arrived on

4 November 1982, still under the authorisation of the Ministry of

Justice under Section 39 para. 1 (f) of the Penal Code. The applicant

remained at Ullersmo until 18 November 1983.

42. In the meantime the applicant was convicted by the District

Court of Asker and Baerum on 18 March 1983 and sentenced to six months'

imprisonment for having, in three cases, assaulted prison staff whilst

in preventive detention at Ila and Ullersmo. The psychiatric expert

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. With regard to the authorisation

of security measures under Section 39 of the Penal Code 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 the applicant clearly

belonged to the category of persons who needed psychiatric care and

concluded that everything should be done to give him adequate

treatment. Thus, in addition to the six months' prison sentence the

Court authorised the prosecuting authority to impose security measures

under Section 39 para. 1 except, however, detention in a security ward

or in a prison as set out in Section 39 para. 1 (e) and (f).

43. Having served his six months' prison sentence the applicant was

thus released on 18 November 1983 and placed in an apartment at

Kragerø under the surveillance of the local police. However, on

19 December 1983 he was arrested and detained on remand charged with

new violations of Sections 227 and 228 of the Penal Code. A new expert

opinion on the applicant's mental capacity was obtained but it reached

the same conclusion as the two preceding opinions mentioned above.

44. During his detention on remand the applicant was admitted to

Reitgjerdet Mental Hospital from 4 to 26 January 1984. As from

26 January 1984 the applicant was in detention on remand at Ila. On

20 September 1984 the District Court of Kragerø, in its judgment of

the same day, found the applicant guilty of most of the charges brought

against him and sentenced him to 120 days' imprisonment. Furthermore,

the Court decided in accordance with Section 39 para. 2 of the Penal

Code that security measures under Section 39 para. 1 should be

imposed on the applicant and the Court authorised the prosecuting

authority to use all measures mentioned in paras. (a) to (f) for a

maximum period of five years. The Court explained thoroughly the

extent of the preventive measures and referred to the earlier decision

in this respect. The Court found that it would undoubtedly be

dangerous to release the applicant, having regard to his almost total

lack of self-control in certain situations and his physical strength.

The Court would not, therefore, rule out that the competent

authorities could use preventive detention in a prison or in a

security ward under Section 39 para. 1 (e) and (f), should this prove

necessary. This was apparently found necessary since the applicant

remained at Ila.

45. The applicant appealed against the decision as to the

preventive detention to the Supreme Court (Høyesterett). In its

judgment of 12 January 1985 Justice Røstad stated on behalf of the

unanimous court inter alia:

"As a starting point I would observe that the case naturally

concerns the question whether the authorisation to impose the

security measures appealed against should replace the

authorisation given by the District Court of Asker and Baerum

on 18 March 1983. Under this judgment the prosecution can,

until 18 November 1988, impose protective measures under

Section 39 para. 1 (a), (b), (c), (d), and (e) except

placement in a security ward.

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 a deviant

character as required by Section 39 presents a serious danger

regarding new offences, including threats, Section 227. I add

that it cannot be considered disproportionate to impose

security measures on an offender of such distinct danger.

Considerations for the protection of society entail in

my view that the authorities should be able to impose

security measures which are considered necessary in order to

prevent (the applicant) from committing new serious offences.

In view of the summing up of the defence counsel I would point

out that I find no basis for the view that the decision of a

Norwegian court concerning the authorisation to use security

measures, in a case like the present one, should violate

(Article 3) of the Council of Europe Convention. It is for the

implementing authorities to ensure that the security measure

is given a practical frame which on top of ensuring the

interests of society also tries to promote the interests of (the

applicant) including his need for psychiatric treatment.

...

In this case it has been pointed out by several parties that

(the applicant) to a very large extent is in need of

treatment, and that he most of all belongs in psychiatric

health care. I agree with these views and I add that I expect

that the prosecuting authorities, the penitentiary authorities

and the health authorities after consultations continue to try

to reach a solution whereby preventive detention in a

prison can be avoided. A proposal for treatment drawn up after

a meeting held on 13 November 1984 has been presented to the

Court. This proposal could not be implemented since (the

applicant) is opposed to it. The proposal involved his return

to Telemark where an apartment would be bought for (the

applicant) at Skien near a psychiatric hospital. In the

proposal there was also an arrangement concerning treatment

with medicine and a possibility of a quick transfer to

preventive detention in case of a breach of important

agreements, such as non-observance of the medical treatment or

stays at Kragerø.

The time element and the serious consequences a continued

placement under the prison authorities may entail for (the

applicant) dictate that, as soon as possible, it is sought to

establish a suitable solution which can take into account the

legitimate interests of both (the applicant) and society."

46. Whilst the applicant's criminal case was pending, ending with

the above Supreme Court judgment, he stayed at Ila and remained there

until 7 November 1985 when he was transferred to Ullersmo as

authorised by the Ministry of Justice under Section 39 para. 1 (f) of

the Penal Code. The applicant did not challenge this decision.

47. After the applicant's arrival at Ullersmo the authorities

looked for alternative places outside the prison. He was now prepared

to fulfil the conditions laid down in the Telemark project mentioned

in the above Supreme Court judgment and an application was lodged with

the hospital which was supposed to supervise this project. The

hospital responded that it was in principle willing to take over the

responsibility for the applicant, but it was impossible until a

department for difficult patients had been set up.

48. An application was also submitted to Reitgjerdet Mental

Hospital, which was prepared to accept the applicant for treatment.

However, according to the general regulations applicable to that

institution, only patients who are "seriously mentally deranged" may

be admitted. As the applicant did not fall within this group of

persons, Reitgjerdet asked the Public Health Department of the

Ministry of Social Affairs for a dispensation. On 26 February 1986 the

Public Health Department declared that it was legally precluded from

making exceptions from the general regulations. Nevertheless, the

applicant spent 23 days at Reitgjerdet Mental Hospital in April/May

1986. On 6 May, however, the applicant's case was considered by the

Supervisory Board of the hospital (kontrollkommisjonen for Reitgjerdet

sykehus) which found that the requirements for staying at the hospital

were not fulfilled. The applicant was not psychotic in its opinion.

Accordingly the applicant was sent back to Ullersmo were he remained

until 12 January 1987, still under the authorisation of the Ministry

of Justice in accordance with Section 39 para. 1 (f) of the Penal Code.

49. By judgment of 29 October 1986 the applicant was convicted by

the District Court of Asker and Baerum and given a suspended sentence

of 45 days' imprisonment for an attack on a prison officer. In the

judgment the Court stated inter alia:

"(The applicant) was sentenced to imprisonment and preventive

detention ... in 1978. During the major part of the period of

preventive detention he stayed in prison, ... in a closed

ward, with long periods of solitary confinement, despite the

fact that the Court at that time pointed out that imprisonment

would probably have negative effects on his development. He

was, however, considered as so dangerous that the imprisonment

was nevertheless used as a security measure.

After his release he committed new acts of violence and on

20 September 1984 he was sentenced to preventive detention

which included the use of imprisonment. This judgment was

upheld by the Supreme Court on 12 January 1985 with comments

which show that the Supreme Court also found that imprisonment

should be used as a last resort.

Subsequent to this the prison authorities have done their best

to start a treatment at the Telemark hospital, Faret, and (the

applicant) has accepted the hospital's requirements for

admission. Nevertheless, he remained in prison, and in a closed

ward, more precisely at Ila National Penal and Preventive

Detention Institution. Of a preventive detention of

approximately 8 years (the applicant) has spent five years in

prison, mostly in a closed ward. (Ila) implemented, however,

an extensive arrangement of leave of absence, which (the

applicant) kept loyally. Then, however, the punishable acts

were committed of which he has now been found guilty, and

which led to a 3/4 year's stop of leave of absence. He is now

transferred to Ullersmo and there a new extensive arrangement of

leave of absence has been established. (The applicant)

travels to Oslo three times a week and consideration is given

to the possibility of extending this to four days.

...

The prison authorities have only been able to ease (the

applicant's) difficulties by giving him extensive leaves of

absence. The Court fears that this arrangement will end and

the possibilities of an imminent transfer to a psychiatric

hospital will become even less, if (the applicant) should now

receive an unconditional prison sentence. A conditional

sentence in this case will not be in accordance with normal

case-law, having regard to his earlier convictions. But this

case is a special one insofar as other people hardly suffer if

(the applicant) should be relieved from serving a sentence.

The prison has, despite the acts of which (the applicant) has

now been found guilty, decided to give him leave of absence,

probably due to the fact that this arrangement is better, both

for (the applicant) and for society, than keeping him detained

all the time. The Court finds that it should not make this

arrangement more difficult. The Court hopes that, in showing

understanding for (the applicant's) problems and making the

sentence conditional, it also contributes to making it clear

to (the applicant) that his acts of violence in order to

obtain respect will only do him harm and that he must get used

to disregarding what he considers as being personal

infringements."

50. The applicant remained at Ullersmo under the authorisation of

the Ministry of Justice until 12 January 1987 when he was transferred

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 returned to Ullersmo due to an

attack on a nurse.

51. On 24 February 1987 the applicant was transferred to Reitgjerdet

Mental Hospital for certain examinations which showed that he was now

to be considered psychotic. Thus fulfilling the requirements for

compulsory placement at the hospital he was kept there until

4 December 1987 when the hospital (now called Trøndelag Psychiatric

Hospital) decided that he could no longer be considered psychotic.

52. The applicant nevertheless remained at the hospital on a

voluntary basis but after some weeks he became aggressive towards

other patients and staff. He repeatedly attacked a nurse, seizing her

by the throat and threatening to kill her. As a consequence, he could

no longer stay in the hospital's ordinary ward. 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.

53. With effect from 8 February 1988 the preventive measures were

changed. In accordance with Section 39 para. 1 (a) to (c) the Ministry

of Justice decided that the applicant should no longer stay at

Ullersmo but was assigned residence in a house in Skien under the

supervision of the Probation and Aftercare Service (kriminalomsorg i

frihet). The applicant was there under the daily supervision of two

social workers from Telemark Central Hospital which was responsible

for his social training.

54. On 19 April 1988 the applicant assaulted the social workers

supervising him and the incident was reported to the police. In order

to protect the integrity of others and partly to emphasise clearly to

the applicant that such behaviour could not be tolerated the Ministry

of Justice decided on the same day to replace the preventive

supervision under Section 39 para. 1 (a) to (c) by detention at a

closed institution, at least for a short period of time. The applicant

was thus transferred to Arendal District Prison for preventive

detention in accordance with Section 39 para. 1 (f).

55. On 27 April 1988 the applicant instituted proceedings against

the Ministry of Justice in the Oslo City Court, claiming that the

Ministry's decision of 19 April 1988 was invalid. On 6 May 1988, the

Court asked for the Ministry's observations and ordered that the

hearing in the case should take place on 20 June 1988. Observations on

behalf of the Ministry were submitted on 9 June 1988.

56. In the meantime and following consultations with the Telemark

Central Hospital and the Probation and Aftercare Service the Ministry

of Justice decided on 18 May 1988 that the applicant could again be

subjected to preventive supervision under Section 39 para. 1 (a) to

(c). Consequently, with effect from 19 May 1988, the applicant was

transferred from Arendal District Prison to his house in Skien where

he was again placed under supervision of the two social workers. On

17 June 1988 the applicant's lawyer confirmed in writing that the

applicant withdrew the case pending before the Oslo City Court as he

was no longer detained. The Court dismissed the case on 30 June 1988.

57. Following several incidents of aggressive behaviour on the

part of the applicant the Probation and Aftercare Service concluded on

24 June 1988 that it was no longer advisable to continue the programme

of preventive supervision in Skien and recommended that other forms of

preventive measures be employed until a suitable programme could be

worked out under Section 39 para. 1 (a) to (c). As the applicant was

accused of several criminal offences he was transferred to detention

on remand. The decision of the Kragerø District Court of 27 June 1988

which authorised detention on remand until 22 July 1988 was upheld by

the Agder Court of Appeal (lagmannsrett).

58. On 21 July 1988 the Ministry of Justice decided that it was

no longer advisable to continue the preventive supervision in Skien.

The applicant was therefore transferred to Ila in accordance with

Section 39 para. 1 (e). Maintaining that the Ministry's decision was

invalid the applicant instituted proceedings against the Ministry of

Justice in the Oslo City Court on 2 August 1988. The Court held a

hearing in the case on 7 September 1988 where the applicant and five

witnesses were heard. The Court pronounced judgment on 27 September

1988. In its judgment the Court stated:

"The case concerns the validity of the Ministry of Justice's

decision to change the security measures imposed from

preventive supervision (frisikring) to preventive detention in

a security ward.

...

Concerning Section 96 of the Constitution

The Court (finds) that security measures under Section 39

cannot be imposed unless this, as required, is decided by a

court. When the judgment, as in (the applicant's) case,

authorises security measures as set out in Section 39 para. 1

(a)-(f) for a maximum period of 5 years, this then means that

it is the court which has decided that (the applicant) may be

subjected to different security measures, including a closed

ward, which cannot, however, exceed the time-limit fixed. The

court's decision fixes the scope of the security measures

which can be imposed on the (person) according to rules set

out in Section 39.

The legal provision whereby the Ministry decides to alter the

security measures is found in Section 39 para. 4, subpara. 2.

See also Section 39 para. 3 whereby 'the measures are

terminated when they are no longer regarded as necessary, but

may be resumed if there should be reason to do so'.

The Court does not find that these provisions contravene

Section 96 of the Constitution whereby 'no-one can be punished

except by judgment'. The Ministry's decision under Section 39

para. 3 concerning a change back to placement in a security

ward was based on the decision in the judgment which

authorised the use of security measures.

Concerning procedural errors

(The applicant) was clearly informed in advance that the

Ministry was planning to examine and decide on the question of

an alteration of security measures when he was detained on

remand in this connection. This appears from the Kragerø

District Court transcripts of 27 June 1988. ...

The witness statements have confirmed that (the applicant) was

informed of the alteration of security measures. The Court

finds that this has been dealt with properly, having regard to

Section 16 ... of the Public Administration Act. Neither can

it be established that the Ministry has failed to consider the

rules set out in Section 17 ... . In any event the Court finds

that even if (the applicant) would have felt a need for a

further possibility to be informed, Section 41 of the Public

Administration Act applies. ...

Concerning the fairness of the decision

The decision includes no time-limit but this does not mean

that (the applicant) must expect a placement in the security

ward to continue during the remainder of the security

period. On the contrary it has been submitted that a new

preventive supervision programme is considered and that it is

intended to decide to alter the security measures to such

supervision before the end of October 1988.

Section 39 of the Penal Code does not require that a special

time-limit is included in the decision to alter the security

measures. The law only requires a time-limit for the maximum

period. The question of time in connection with an alteration

will be dependent on the time it takes to organise a new

preventive supervision programme. ... The Court does not find

that the lack of time-limits in the decision gives reason to

consider it unfair.

Neither will it be correct to consider the decision unfair

because of the fact that the accusations brought against (the

applicant) might lead to the filing of charges against him. A

punishable offence may justify an alteration to a more severe

security measure, but this is then based on the aims of the

security measures and not considered as a punishment. If the

case would be followed up and (the applicant) convicted, the

question whether it is fair to use both placement for a certain

period of time in a security ward and punishment must be

considered when meting out the sentence. In such circumstances it

will be of importance that (the applicant) had to accept the

alteration of the security measure. This can be compared with

the opposite constellation as set out in Section 39 para. 5 of

the Penal Code."

59. As the applicant's suit against the Ministry of Justice was

unsuccessful from his point of view, costs were awarded against him

and he remained at Ila. The applicant did not appeal against the

judgment. At his request the Ministry of Justice subsequently

released the applicant from the obligation to pay the costs of the

proceedings.

60. On 21 October 1988 the Ministry of Justice decided that the

applicant should again be subjected to preventive supervision under

Section 39 para. 1 (a) to (c) of the Penal Code and he was brought

back to his house in Skien. However, as he violated the restrictions

imposed on him on several occasions the Ministry of Justice decided,

on 27 December 1988, to detain him at Ila again in accordance with

Section 39 para. 1 (e) of the Penal Code. It does not appear that the

applicant challenged this decision.

61. On 11 January 1989 the applicant was convicted by the District

Court of Kragerø of having violated 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 were considered served

in detention on remand. The applicant is, however, at present detained

at Ila under Section 39 para. 1 (e) of the Penal Code. The

authorisation to implement security measures, upheld by the Supreme

Court in 1985, expires on 25 February 1990.

B. Relevant domestic law and practice

a. Section 39 of the Penal Code

62. The legal basis for preventive measures is Section 39 of the

Penal Code of 22 May 1902. Sections 39 - 39b read as follows:

§ 39

"1. Hvis en ellers straffbar handling er foretatt i

sinnssykdom eller bevisstløshet eller en straffbar handling er

begått i bevisstløshet som er en følge av selvforskyldt rus

eller under en forbigående nedsettelse av bevisstheten eller

av en person med mangelfullt utviklede eller varig svekkede

sjelsevner, og der er fare for at gjerningsmannen på grunn av

en sådan tilstand atter vil foreta en handling som foran

nevnt, kan retten beslutte at påtalemyndigheten i

sikringsøiemed skal

a. anvise eller forby ham et bestemt opholdssted,

b. stille ham under opsikt av politiet eller en dertil særlig

opnevnt tilsynsmann og pålegge ham å melde sig for politiet

eller tilsynsmannen til visse tider,

c. forby ham å nyte alkoholholdige varer,

d. anbringe ham i betryggende privat forpleining,

e. anbringe ham i psykiatrisk sykehus, kursted, pleieanstalt

eller sikringsanstalt, såframt det er adgang til dette

etter alminnelige forskrifter utferdiget av Kongen,

f. holde ham i fengslig forvaring.

2. Er det på grunn av sådan tilstand fare for handlinger av

den art som er omhandlet i §§ 148, 149, 152 annet ledd, 153

første, annet og tredje ledd, 154, 155, 159, 160, 161, 192-198,

200, 206, 212, 217, 224, 225, 227, 230, 231, 233, 245 første

ledd, 258, 266, 267, 268 eller 292, skal retten beslutte

anvendelse av sådanne sikringsmidler som foran nevnt.

3. Forholdsreglene innstilles når de ikke lenger anses

påkrevet, men kan gjenoptas når dertil finnes grunn. Av de

under a-d nevnte sikringsmidler kan flere anvendes samtidig.

Retten skal fastsette en lengstetid utover hvilken

forholdsregler ikke må anvendes uten rettens samtykke.

4. Hvis ikke retten har truffet annen bestemmelse, har

påtalemyndigheten valget mellem de nevnte sikringsmidler.

Bestemmelse om at et sikringsmiddel skal innstilles eller

gjenoptas eller ombyttes med andre, treffes av vedkommende

departement.

Før der treffes beslutning om sikkerhetsforholdsregler

eller om å innstille sådanne, skal der som regel innhentes

erklæring fra sakkyndig læge. Det samme bør skje med visse

mellemrum under anvendelsen av disse forholdsregler.

5. Er straff ilagt for handlingen, kan departementet bestemme

at den helt eller delvis skal bortfalle hvis der anvendes

forholdsregler som nevnt i post 1.

6. Er gjerningsmannen anbrakt i psykiatrisk sykehus, uten at

retten før hans innleggelse har behandlet spørsmålet om

sikringsmidler, skal påtalemyndigheten varsles før utskriving

besluttes, og utskriving må ikke settes i verk før det har

vært anledning til å få rettens avgjørelse om ytterligere

forholdsregler i samsvar med denne paragraf. Gjerningsmannen

må dog ikke i påvente av dette tilbakeholdes i sykehuset i mer

enn 3 måneder etter at overlegen har varslet påtalemyndigheten

om at han vil bli utskrevet.

7. Hvis gjerningsmannen ikke er norsk statsborger, kan

vedkommende departement, såfremt ikke annet er vedtatt ved

overenskomst med fremmed stat, bestemme at han skal utvises

istedenfor å undergis sikkerhetsforholdsregler efter denne

paragraf.

§ 39a.

1. Har tiltalte gjort sig skyldig i flere forsøkte eller

fullbyrdede forbrytelser staffbare etter §§ 148, 149, 152

annet ledd, 153 første, annet eller tredje ledd, 154, 159,

160, 161, 174, 178, jfr. 174, 192-198, 206, 207, 212, 217,

224, 225, 227, 230, 231, 233, 245 første ledd, 258, 266, 267,

268 eller 292, og retten finner grunn til å anta at han på ny

vil begå noen forbrytelse av de her nevnte slags, skal den

beslutte at han, etter at straffen helt eller delvis er

avsonet, skal holdes i forvaring så lenge det finnes

påkrevet.

Retten skal fastsette en lengstetid utover hvilken

forvaringen ikke må fortsette uten rettens samtykke.

2. Er tiltalte en person med mangelfullt utviklede eller

svekkede sjelsevner, kan retten bestemme at der istedenfor

straff og forvaring efter denne paragraf skal anvendes

sikringsmidler efter § 39; sådan bestemmelse kan også treffes

av vedkommende departement.

3. Departementet kan bestemme at domfelte skal overføres fra

fengsel til forvaring, når minst en tredjedel av den idømte

straff er avsonet.

4. Departementet kan løslate domfelte på prøve, når den idømte

straff er avsonet, eller når den avsonte straff og forvaringen

tilsammen har varet minst så lenge som den idømte straffetid.

Departementet kan som vilkår for løslatelsen anvise eller

forby ham et bestemt opholdssted, pålegge ham å melde sig til

visse tider for politiet eller en opnevnt tilsynsmann, forby

ham å nyte alkoholholdige varer og pålegge ham å betale en

efter hans evne avpasset erstatning og opreisning til

fornærmede.

Hvis domfelte i 5 år efter prøveløslatelsen ikke har øvet

nogen forsettlig forbrydelse, blir løslatelsen endelig,

såfremt han har opfylt de vilkår som måtte være satt.

5. Hvis den fastsatte straff fullbyrdes delvis, anses den

utstått fra den tid domfelte blir løslatt fra forvaring uten å

bli gjeninnsatt.

6. Hvis gjerningsmannen ikke er norsk statsborger, kan

vedkommende departement, såfremt ikke annet er vedtatt ved

overenskomst med fremmed stat, bestemme at han skal utvises

når den idømte straff er avsonet.

§ 39b.

1. Påtalemyndigheten kan anlegge sak etter § 39 uten å påstå

straff så lenge adgangen til å reise straffesak ikke er

foreldet. Saken kan i tilfelle reises uten hensyn til om

betingelsene i straffeprosesslovens § 74 er til stede.

Begjæring fra fornærmede er ikke nødvendig.

2. Er det under straffesak ikke truffet noen avgjørelse om

sikringsmidler etter § 39 eller § 39a, kan påtalemyndigheten

når særlige grunner foreligger, innbringe dette spørsmål for

retten inntil ett år etter at straffen er utholdt.

3. Kongen kan gi nærmere regler om de sikkerhetstiltak som er

nevnt i §§ 39 og 39a."

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, must

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 danger of acts of the kind

covered by sections 148, 149, 152 para. 2, 153 paras. 1, 2 or

3, 154, 155, 159, 160, 161, 192 - 198, 200, 206, 212,

217, 224, 225, 227, 230, 231, 233, 245 para. 1, 258, 266, 267,

268 or 292, the court must 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 should be

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. If the court has not 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

ordinarily be obtained. The same procedure should be followed

at regular intervals during the period in which security

measures are in force.

5. If security measures, as mentioned in para. 1 above, are

imposed, the ministry may decide to forgo all or part of the

punishment to which a transgressor might be sentenced.

6. If the perpetrator is placed in a mental hospital and the

court has not in advance decided that security measures are to

be employed, the prosecution shall be notified before

discharge. Discharge shall not take place until there has been

opportunity to obtain the decision of the court on the

imposition of further measures in accordance with this

section. The offender may not be kept in the hospital waiting

for such decision for more than three months after the

director of the hospital has notified the prosecution that he

will be certified as recovered.

7. If the perpetrator is not a Norwegian citizen, the ministry

may decide to deport him instead of subjecting him to security

measures according to this section, unless otherwise agreed by

treaty with a foreign state.

Section 39a.

1. If the defendant is guilty of several attempted or

completed felonies punishable according to Sections 148, 149,

152 para. 2, 153 paras. 1, 2 or 3, 154, 159, 160, 161, 174,

178, cf. 174, 192-198, 206, 207, 212, 217, 224, 225, 227,

230, 231, 233, 245 para. 1, 258, 266, 267, 268 or 292, and the

court has reason to assume that he will again commit a felony

of the kind named above, the court shall decide that he is to

be kept in preventive detention after he has served all or

part of his sentence, so long as this is necessary.

The court shall determine the maximum period for which

preventive detention may be imposed without its further

consent.

2. If the defendant is a person with underdeveloped or

impaired mental capacity, the court may decide to employ

security measures in accordance with Section 39 instead of

punishment and preventive detention in accordance with this

section. Such decision may also be made by the ministry.

3. The ministry may decide to transfer the convict from

prison to preventive detention when he has served at least

one-third of the term to which he was sentenced.

4. The ministry may release the convict on probation when the

punishment to which he is sentenced has been fully served, or

when the punishment served and the preventive detention

together equal at least the prison term to which he was

sentenced. As a condition for the release the ministry may

assign or forbid him a certain place of residence, order him

to report at regular intervals to the police or an appointed

probation officer, forbid him to consume alcoholic beverages,

and order him, within his financial capacity, to pay the

victim compensation for economic loss and suffering.

If during the five years following his release on probation

the convict has not committed any intentional felony and has

acted in accordance with the conditions set, the release

becomes final.

5. If the stipulated punishment has been served in part, it

is regarded as completed as of the time the convict is

released from preventive detention, unless he is again

confined.

6. If the perpetrator is not a Norwegian citizen, the ministry

may decide to deport him when the punishment to which he is

sentenced has been served, unless otherwise agreed by treaty

with a foreign state.

Section 39b.

1. The prosecution may proceed according to Section 39

without demanding punishment, provided the right to prosecute

has not expired. In such a case proceedings may be brought

regardless of whether the conditions mentioned in Section 74

of the Code of Criminal Procedure are present. A request for

prosecution by the victim is not required.

2. In a criminal case, if no decision is made about security

measures according to Sections 39 or 39a, the prosecution may,

where there are special reasons, bring the question before the

court within one year after sentence has been served.

3. The King may issue further provisions about the security

measures referred to in Sections 39 and 39a."

63. The above security measures are regarded as extraordinary

means necessary to protect society from psychologically abnormal

recidivists. Preventive measures may be used (instead of punishment)

against insane offenders or those who suffered a temporary lapse from

consciousness, but also (in addition to punishment) against certain

other groups, inter alia, persons (like the applicant) with

underdeveloped or permanently impaired mental capacity. In any case,

the person concerned must have committed an offence, and it is also a

general condition that there be a danger that, because of his

condition, he will repeat such an act.

64. It is for the court to decide whether the conditions for

security measures are fulfilled and, if need be, to authorise the

use of the measures listed in Section 39 para. 1 (a) to (f) (the first

mentioned being the least far-reaching). The decision may be taken as

part of a criminal case, or as a separate case, but at any rate in

accordance with the general provisions of the Code of Criminal

Procedure No. 25 of 22 May 1981 (straffeprosessloven). Under Section

248 of that Code, a court of examining and summary jurisdiction

(forhørsretten), applying a simplified procedure, may not decide on

cases concerning preventive detention.

65. If the court authorises the use of security measures, it

shall fix a maximum period beyond which the measures cannot be upheld

without its consent (Section 39 para. 4 second subparagraph of the

Penal Code). In practice, the courts are very seldom asked for a

prolongation of the stipulated period. The person concerned will

therefore usually be released before the time-limit expires, or at

that time.

66. The court decision to authorise the use of security measures

may be appealed against, eventually to the Supreme Court.

67. The implementation of and choice between security measures

lies with the prosecuting authority, unless the Court decides

otherwise. However, once that decision has been taken, it is for the

Ministry of Justice to terminate, resume or alter the measures

(Section 39 para. 4 second subparagraph of the Penal Code). The

measures shall be terminated when they are no longer regarded as

necessary, but may be resumed if there is reason to do so (Section 39

para. 3 first subparagraph).

68. Rules concerning changes in the security measures are found in

Section 11 of a Royal Decree of 1 September 1961 which reads as

follows:

"Not later than one year after security measures have been

initiated, and subsequently at intervals of not more than one

year, the security measures in question shall be submitted to

the Ministry of Justice with a statement as to whether the

form of security measures should remain unaltered or whether

the security measures applied should be replaced by other

measures, or whether the measures should be discontinued. If

special reasons so indicate, the matter may be submitted

independently of the specified time-limits.

The matter shall be submitted by the prosecuting authority

except in those cases in which the person sentenced to

security measures is serving a prison sentence or is subject

to security measures in an institution in the prison system.

If that is the case, the matter shall be submitted by the

director of the institution concerned.

The report of the prosecuting authority shall contain

information on the situation of the person sentenced to

security measures, with a statement from the probation

officer, the Probation and Aftercare Service, the custodian,

or from the hospital or any other institution in which the person

sentenced to security measures has been placed.

The report shall be prepared by the chief of police who has

been in charge of investigating the security matter, and sent

by him to the state advocate (statsadvokaten) who will forward

it to the Ministry of Justice."

69. The Ministry will also consider the question of terminating or

changing the measures when requested by the person concerned. In

practice, the appropriateness of preventive detention in a particular

case may be considered several times a year. If a person is subjected

to such detention, a medical report will be included in his records.

70. The decision made by the Ministry is subject to appeal to the

King in Council in conformity with the Public Administration Act of 10

February 1967 (forvaltningsloven). This Act establishes the right to

appeal to a superior administrative authority, but does not answer the

question whether that right must be exhausted before the case is

brought before a court. However, according to the Code of Civil

Procedure of 13 August 1915 No. 6 (tvistemålsloven) there is no such

requirement unless it is explicitly stated in administrative

regulations. No such provision exists in relation to a decision made

under Section 39 of the Penal Code. Accordingly the person concerned

may bring the decision of the Ministry of Justice under Section 39 of

the Penal Code directly before the ordinary courts of justice. No

special administrative procedure exists in such cases but the courts

will examine the administrative decision in accordance with their

competence under the general unwritten constitutional principles of

judicial supremacy.

71. Such a decision of a court may be appealed to the Court of

Appeal and then to the Supreme Court.

72. Suspensive effect may be given to an appeal by decision of

the administration or of the court.

73. According to Section 42 of the Public Administration Act of

10 February 1967, the administrative body which has made the decision

or the appeals organ may decide that the decision shall not be

executed until the time-limit for lodging an administrative appeal has

expired or the appeal has been decided. When the person concerned

intends to take legal action or has taken legal action in order to

have the administrative decision reviewed, they may suspend the

execution until final judgment has been rendered.

74. In pursuance of Chapter 15 of Act No. 7 of 13 August 1915

relating to the enforcement of civil claims (tvangsfullbyrdelsesloven)

the court may impose interim measures (midlertidig forføyning), such

as suspension of a decision. Such measures may not only be requested

in connection with judicial review in the court of first instance, but

also in connection with appeal proceedings. Once an appeal has been

lodged, it will be for the court of appeal to decide whether the party

requesting interim measures has demonstrated the likelihood of his

winning in the subsequent appeal proceedings, cf. Sections 262, 268

and 248 of the Act.

75. There is no case-law whereby a court has overruled a decision

of the Ministry of Justice under Section 39 of the Penal Code, taken

in connection with its annual review of the security measures or as a

consequence of an initiative from a person subjected to such measures.

b. The Mental Health Act No. 2 of 28 April 1961

76. The Mental Health Act regulates the conditions for

hospitalisation in mental hospitals. Chapters II and III of the Act

read as follows:

"Kap. II. Om undersøkelse, innleggelse og utskrivning

§ 3. Når noen på grunn av sin sinnstilstand ikke selv kan

sørge for å få det legetilsyn og det psykiske helsevern han

trenger og hans nærmeste heller ikke sørger for at han får det,

skal offentlig myndighet sørge for at han blir undersøkt av

lege og ellers gjøre det som trenges for å få ham under vern.

Finner lege det nødvendig etter en personlig undersøkelse

kan den syke etter begjæring fra sine nærmeste eller offentlig

myndighet innlegges eller beholdes innlagt i sykehus eller

holdes på annet sted hvor forsvarlig pleie kan skaffes, men

ikke uten eget uttrykkelig samtykke i mer enn tre uker, hvis

ikke betingelsene etter § 5 foreligger.

Legen skal gjøre pasienten oppmerksom på at han kan klage

beslutningen inn for kontrollkommisjonen. Klagen har ikke

oppsettende virkning hvis ikke legen bestemmer noe annet.

§ 4. Den som selv begjærer seg innlagt i psykiatrisk

institusjon, kan mottas dersom overlegen eller den lege som

har ansvaret for vernet finner at innleggelse på grunn av

pasientens sinnstilstand er til beste for ham, og at pasienten

har evne til selv å ta bestemmelsen. Pasienten skal skrives ut

uten opphold dersom han begjærer det.

Overlege ved psykiatrisk sykehus eller klinikk kan når han

av behandlingsmessige grunner finner det ønskelig, sette som

vilkår for innleggelse at pasienten kan holdes tilbake i

institusjonen i inntil 3 uker fra innleggelsen, og i tilfelle

av unnvikelse hentes tilbake om nødvendig med tvang. Avtale om

innleggelse på vilkår som nevnt skal være skriftlig og

undertegnet av partene.

Hvis pasienten er under 16 år, kan den eller de som har

foreldremyndigheten på pasientens vegne samtykke i innleggelse

etter første ledd eller inngå avtale etter annet ledd. Hvis

den mindreårige er fylt 12 år og ikke selv samtykker i

innleggelsen eller avtalen, skal overlegen bringe innleggelsen

eller avtalen inn for kontrollkommisjonen til overprøving.

Overlegens beslutning om å sette vilkår for innleggelse som

nevnt i annet ledd skal være grunngitt og kan av pasienten

eller dennes nærmeste pårørende eller vergen bringes inn for

kontrollkommisjonen til overprøving.

Helsedirektoratet kan gi overleger ved andre sykehus adgang

til å motta pasienter til psykiatrisk behandling etter reglene

i annet ledd, og kan også bestemme at enkelte psykiatriske

sykehus skal være unntatt fra adgang til å motta pasienter til

frivillig innleggelse etter første og annet ledd.

§ 5. Den som har en alvorlig sinnslidelse kan innlegges i

sykehus uten eget samtykke hvis hans nærmeste eller offentlig

myndighet begjærer det, og sykehusets overlege finner at

innleggelse på grunn av den sykes sinnstilstand er nødvendig

for å hindre at han lider overlast eller at utsikt til

helbredelse eller vesentlig bedring forspilles, eller at den

syke er til vesentlig fare for seg selv eller andre.

Overlegen kan gjennom kontrollkommisjonen begjære innhentet

og protokollert vitneforklaringer som anses å være av

betydning for bedømmelsen av om lovens betingelser for

innleggelse er til stede. Reglene i § 9 annet ledds annet

punktum og tiende ledds tredje punktum gjelder tilsvarende.

Den som er innlagt i sykehus, kan beholdes i sykehuset uten

eget samtykke hvis vilkårene etter første ledd, jfr. annet

ledd, er til stede. Dette gjelder dog ikke om innleggelsen har

funnet sted etter § 4.

Den syke, hans nærmeste eller den myndighet som har begjært

innleggelsen, kan innbringe overlegens avgjørelse for

kontrollkommisjonen. Dette gjelder også om overlegen har

nektet å motta eller beholde den syke. Klagen har ikke

oppsettende virkning hvis ikke kontrollkommisjonen bestemmer

noe annet.

Når noen er innlagt eller beholdt i sykehus med hjemmel i

denne paragraf, skal overlegen straks underrette

kontrollkommisjonen. Er den syke innlagt eller beholdt etter

begjæring fra myndighetene, skal overlegen også underrette

hans nærmeste. Den syke og hans nærmeste skal alltid

underrettes om retten til å bringe spørsmålet om innleggelse

eller utskrivning, samt klager over sykebehandlingen, inn for

kontrollkommisjonen.

§ 5 a. Helsedirektøren kan etter klage omgjøre

kontrollkommisjonens beslutning om ikke å innlege en syk som

søkes overført fra annen institusjon m.v. Klageordningen

gjelder bare overføringer som søkes i medhold av lovens § 5 og

bare for disse grupper:

a. Pasienter i institusjoner som drives i medhold av denne

lov. Overføring mellom fylkeskommunale institusjoner i

samme fylke omfattes likevel ikke av klageordningen.

b. Pasienter som i medhold av denne lov er innlagt i andre

typer institusjoner. Bokstav a, annet punktum gjelder

tilsvarende.

c. Innsatte i fengselsvesenets anstalter.

Beslutning som nevnt i første ledd kan ikke omgjøres for så

vidt den er begrunnet med at den syke ikke oppfyller vilkårene

etter § 5 første ledd for innleggelse uten eget samtykke.

Klageretten til helsedirektøren i saker som nevnt i første

ledd utøves av pasienten eller vedkommende overlege eller den

lege som har vernet for pasienten (bokstav a og b), eller av

den innsatte eller den ansvarlige fengselsmyndighet eller

påtalemyndighet (bokstav c). De som har slik klagerett til

helsedirektøren, har også rett til å begjære overføring som

nevnt i første ledd og har rett til å klage vedtaket inn for

kontrollkommisjonen.

Helsedirektørens avgjørelse er ikke bindende for senere

avgjørelser etter denne lov.

§ 6. Begjæring om utskrivning fra sykehus av en pasient

som er innlagt med hjemmel i § 5 kan fremsettes av den syke

selv, eller om han ikke selv er i stand til det, av hans

nærmeste.

Etter at utskrivning er begjært, kan den syke ikke beholdes

i sykehuset med mindre overlegen finner at vilkårene i § 5

første ledd er tilstede. Reglene i § 5 annet ledd gjelder

tilsvarende når overlegen skal avgjøre om lovens betingelser

for utskrivning er til stede. Nekter overlegen utskrivning,

kan hans beslutning klages inn for kontrollkommisjonen som i

alle tilfelle skal underrettes om nektelsen.

Selv om det ikke foreligger begjæring som nevnt i første

ledd, kan den innlagte utskrives etter overlegens beslutning

hvis vilkårene for å beholde ham i sykehuset etter annet ledd

ikke er til stede. Overlegens beslutning kan innbringes for

kontrollkommisjonen av den syke selv eller hans nærmeste eller

av den myndighet som har begjært ham innlagt. Klagen har

oppsettende virkning.

Paragraf 5 femte ledds annet og tredje punktum gjelder

tilsvarende for avgjørelser etter annet og tredje ledd.

§ 7. Forvaltningslovens kap. III-VI gjelder ikke for saker

som nevnt i dette kapittel.

Bestemmelsen i § 7 første ledd, samt §§ 5 og 6 får

tilsvarende anvendelse ved psykisk helsevern som finner sted

utenfor sykehus, når den syke uten eget samtykke er under

vern. De avgjørelser som i de nevnte paragrafer er tillagt

sykehusets overlege treffes i så fall av den lege som har

ansvaret for vernet.

Kap. III. Om tilsyn, kontroll og overprøving

§ 8. Hvor noen er under psykisk helsevern etter denne lov,

skal det være en kontrollkommisjon som etter nærmere regler

gitt av departementet treffer de avgjørelser som særlig er

tillagt den, og eller fører den kontroll den finner nødvendig

for de sykes velferd.

Kontrollkommisjonene oppnevnes av departementet som også

bestemmer det område som skal være tillagt hver kommisjon.

Kommisjonen skal innen sitt område, ha tilsyn med alle som er

under psykisk helsevern uten eget samtykke og med andre syke

som selv ber om det.

Kommisjonen skal bestå av en jurist, fortrinnsvis med

dommererfaring, som formann, en lege og to andre medlemmer,

alle med personlig varamann. Dommeren er kommisjonens formann.

Medlemmene oppnevnes for seks år om gangen. Ved første

oppnevning etter denne lovs ikrafttreden oppnevnes to av

medlemmene for tre år.

Ingen kan oppnevnes som medlem av en kontrollkommisjon som

har å føre tilsyn med noen del av det psykiske helsevern som

han selv i stillings medfør har noe ansvar for.

Medlemmene er pliktige til taushet om det de i stillings

medfør får vite om private forhold. Overtredelse straffes

etter straffelovens regler om offentlige tjenestemenn.

§ 9. Før kontrollkommisjonen avgjør sak hvor det uten den

sykes samtykke kan besluttes å innlegge ham eller beholde ham

innlagt i sykehus eller annet sted i medhold av denne lov,

skal den syke eller den som handler på hans vegne gis adgang

til å uttale seg.

Formannen skal ellers sørge for at saken blir best mulig

opplyst. Enhver har plikt til å møte for kommisjonen som vitne

eller sakkyndig etter de regler som gjelder for

hovedforhandling ved herreds- eller byrett.

Kontrollkommisjonen kan begjære bevisopptak ved herreds-

eller byrett hvis et vitne ikke har møteplikt for kommisjonen

eller hvis fremmøte for kommisjonen ville være forbundet med

uforholdsmessig omkostning eller ulempe eller hvis slikt

bevisopptak av andre grunner må anses særlig praktisk.

Privat antatt advokat eller advokat oppnevnt etter lov om

fri rettshjelp har rett til å bli kjent med alle opplysningene

i saken og til å være tilstede under parts- og vitneavhør. I

den utstrekning kontrollkommisjonen finner det tilrådelig,

gjelder dette også den syke selv eller den som handler på hans

vegne.

Kommisjonen skal om mulig treffe sin avgjørelse innen to

uker etter at saken ble brakt inn for den. Kan denne frist

ikke overholdes, skal grunnen til dette opplyses i

avgjørelsen.

Avgjørelsen treffes i møte av fulltallig kommisjon. I

tilfelle av stemmelikhet gjør formannens stemme utslaget.

Reglene om ugildhet i domstolslovens kap. 6 gjelder

tilsvarende for kommisjonens medlemmer. Formannen fastsetter

godtgjørelsen til oppnevnt sakfører.

Avgjørelsen skal ha grunner.

For saker som behandles av kontrollkommisjonen, gjelder

forvaltningsloven for så vidt ikke annet er bestemt i denne

lov. Kongen kan gi supplerende bestemmelser om

saksbehandlingen.

Er en klage blitt avslått av kontrollkommisjonen kan ny

klage ikke kreves fremmet før minst seks måneder er gått.

For utskrifter og attester som gis av kontrollkommisjonen

eller av herreds- eller byrett betales ikke gebyr. Heller ikke

betales gebyr for bevisopptak etter tredje ledd. Den som i

medhold av nærværende paragraf møter for å forklare seg for

kontrollkommisjonen, har krav på slik godtgjøring som er

bestemt for vitner og sakkyndige.

§ 9 a. Kontrollkommisjonens vedtak etter § 9 om innlegging

eller om å nekte utskriving kan av den sjuke eller hans

nærmeste bringes inn for retten etter reglene i lov av

13. august 1915 om rettergangsmåten for tvistemål kap. 33.

Ved melding om vedtaket skal kontrollkommisjonen gjøre den

sjuke eller den som handler på hans vegne, kjent med adgangen

til å kreve saka brakt inn for retten. Når vedkommende krever

rettslig behandling skal han få veiledning og hjelp."

Translation

"Chapter II. Examination, admission and discharge

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 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 apprise the patient of his

right to appeal against the decision before the supervisory

board. The appeal does not have the effect of a postponement

unless the medical practitioner decides otherwise.

Section 4. Anyone who wishes to have himself admitted to a

psychiatric institution may be accepted if the senior

physician or the medical practitioner with responsibility for

the care of the patient considers that admission on account of

the patient's mental state is in his best interests, and that

the patient is in a position to take the decision himself. The

patient shall be discharged without delay if he so desires.

The senior medical practitioner in a psychiatric hospital or

clinic may, when he considers this to be desirable in the

interests of treatment, make it a condition of the admission

that the patient be detained in the institution for up to 3

weeks from admission, and in the event that the patient

discharges himself he may be taken back, forcibly if

necessary. The agreement concerning admission subject to the

conditions referred to shall be in writing and signed by the

parties concerned.

If the patient is under 16 years of age, the person or

persons having custody of the patient may on the patient's

behalf consent to his being admitted in conformity with

paragraph one or come to an agreement as referred to in

paragraph two. If the minor is 12 years of age or over and

does not himself consent to his admission or to the agreement,

the senior physician shall submit the matter of the admission

or the agreement to the supervisory board for a decision.

The decision of the senior physician regarding the

stipulation of conditions for the admission as referred to in

paragraph two shall be justified and may be submitted to

the supervisory board by the patient or his nearest relative

or guardian for a decision.

The Directorate of Health may grant senior physicians at

other hospitals permission to admit patients for psychiatric

treatment under the rules laid down in paragraph two, and

may also rule that particular psychiatric hospitals shall be

exempted from the right to admit patients on a voluntary basis

in conformity with paragraphs one or two.

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 paragraph two second sentence

and paragraph ten 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.

Section 5 a. The Director-General of Public Health may,

following an appeal, set aside the decision of the supervisory

board not to admit a patient whose transfer from another

institution etc. has been applied for. The system for appeals

applies only to transfers applied for in conformity with

Section 5 of the Act and only to the following groups:

a. Patients covered by and institutions which are run in

accordance with this Act. Transfers between municipal

institutions in the same county are also not covered by

the system for appeals.

b. Patients who in accordance with this Act are admitted to

other types of institutions. Sub-paragraph a, second

sentence is similarly applicable.

c. Persons admitted to penal establishments.

The decision referred to in paragraph one may not be set

aside insofar as it is justified by the fact that the patient

does not meet the conditions set out in the Section 5

paragraph one concerning admission without own consent.

The right of appeal to the Director-General of Public

Health in the cases referred to in paragraph one may be

exercised by the patient or the senior physician concerned or

the physician who is in charge of caring for the patient

(letters a and b), or by the person admitted or the

responsible prison authority or prosecuting authority

(letter c). Persons enjoying this right of appeal to the

Director-General of Public Health also have the right to

request the transfer referred to in paragraph one and the

right to appeal against the decision to the supervisory board.

The decision of the Director-General of Public Health is

not binding upon subsequent decisions under this Act.

Section 6. Requests for the discharge from hospital of a

patient who is admitted under Section 5 may be submitted by

the patient himself, or if he is not in a position to do so,

by his nearest relatives.

After the discharge has been requested, the patient cannot

be detained in the hospital unles the senior physician

considers that the conditions stipulated in Section 5

paragraph two have been met. The rules in Section 5

similarly apply when the senior physician has to determine

whether the conditions of the Act as regards discharge have

been met. If the senior physician turns down the application

for discharge, his decision may be appealed against to the

supervisory board, which shall be informed of the rejection of

such requests in all cases.

Even in the absence of the request referred to in

paragraph one, the patient admitted may be discharged on the

decision of the senior physician, if the conditions for

detaining him in hospital as stipulated in the second

paragraph have not been met. The decision of the senior

physician may be appealed against to the supervisory board by

the patient himself or his nearest relative or the authority

which has requested his admission. The appeal has suspensive

effect.

Section 7. Chapters III-VI of the Public Administration

Act do not apply to cases referred to in this chapter.

The provision in Section 7 paragraph one and Sections 5

and 6 are similarly applied in mental health care which is

provided outside a hospital, when the patient is under care

without his own consent. Decisions which, in the paragraphs

referred to, fall within the competence of the hospital's

senior physician are in such cases made by the physician who

has responsibility for the care.

Chapter III. Supervision, control and appeals

Section 8. Where a person is in psychiatric care under

this Act, there shall be a supervisory board which, in

accordance with the specific rules issued by the Ministry,

makes such rulings as fall within its particular field of

competence and/or exercises such supervision as it deems

necessary for the welfare of the patients.

The supervisory boards are appointed by the Ministry, which

also determines the field of competence of each board. Within

its field of competence, the board shall supervise all persons

who are in psychiatric health care without their own consent

and other patients who request such care themselves.

The board shall consist of a lawyer, preferably with

experience as a judge, as chairman, a medical practitioner and

two other members, each with their individual substitutes. The

judge is chairman of the committee. Members shall be appointed

for a period of six years. On their first appointment after

the entry into force of this Act, two of the members shall be

appointed for three years.

No one may be appointed a member of a supervisory board

responsible for supervising any part of the psychiatric health

care service for which he himself bears some responsibility in

pursuance of his duties.

Members are bound by the rule of professional secrecy as

regards any private information which comes to their knowledge

in pursuance of their duties. Contraventions of this rule are

punishable according to the rules of the Penal Code relating

to public officials.

Section 9. Before the supervisory board makes its ruling

on a case where, without the patient's consent, a decision can

be taken to admit him to or detain him in a hospital or other

place in accordance with this Act, the patient or the person

acting on his behalf shall be given an opportunity to state

his case.

The chairman shall otherwise ensure that the case is

investigated as fully as possible. It is the duty of everyone

to appear before the board as a witness or expert in

accordance with the rules which apply to the principal hearing

in the district or the city court.

The supervisory board may request the recording of evidence

in the district or city court if a witness is not bound to

appear before the board or if appearance before the board

would entail disproportionate expense or inconvenience or if

such recording may be regarded as especially practical for

other reasons.

Privately engaged lawyers or lawyers appointed under the

free legal aid law have the right to be acquainted with all

the information pertaining to the case and to be present

during the hearing of the opposing parties and witnesses. To

the extent that the supervisory board considers it advisable,

this shall also apply to the patient himself or to the person

acting on his behalf.

The board shall where possible reach its decision no later

than two weeks after the case has been brought before it. If

this time limit cannot be complied with, the reason shall be

stated in the decision.

The decision shall be reached with all members of the board

present. In the event of a tie vote, the chairman has the

casting vote. The rules concerning exemption in chapter 6 of

the Court Act similarly apply to the members of the board. The

chairman determines the fee paid to solicitors who are appointed.

The decision shall be followed by reasons.

Where cases heard by the supervisory board are concerned,

the Public Administration Act applies, provided nothing else

is stipulated in this act. The King may issue additional

provisions concerning court procedure.

If a case has been turned down by the supervisory board, a

fresh appeal cannot be made until at least six months have

elapsed.

Transcripts and certificates issued by the supervisory

board or the county or municipal court are free of charge. Nor

is any charge payable for the recording of evidence referred

to under paragraph three. Persons who in accordance with

the present paragraph attend to make a statement before the

supervisory board shall be entitled to such compensation as is

stipulated for witnesses and experts.

Section 9 a. The decision of the supervisory board under

Section 9 concerning admission or the refusal to discharge may

be brought before a court by the patient or his nearest

relative under the rules in the Code of Civil Procedure of

13 August 1915, chapter 33.

In announcing the decision, the supervisory board shall

apprise the patient or the person acting on his behalf of his

right to have the case brought before a court. When the person

in question demands a court examination, he shall be given

guidance and help."

77. A person upon whom security measures under Section 39 of the

Penal Code is imposed cannot be detained in a mental hospital against

his will, unless he qualifies as "insane" and otherwise fulfils the

requirements for admission under the Mental Health Act.

c. Chapter 33 of the Code of Civil Procedure of 13 August 1915

78. Chapter 33 of the Code of Civil Procedure relates to review

of administrative decisions concerning deprivation of liberty and

other enforcement measures. It reads as follows:

"33. kapittel. Saker om overprøving av administrative

vedtak om frihetstap og andre tvangsinngrep

§ 474. Føresegnene i dette kapitlet gjelder søksmål som

etter særskilt lovføresegn kan reises mot offentlig myndighet

til overprøving av administrative vedtak om frihetstap eller

andre administrative tvangsinngrep.

§ 475. Søksmålet reises for herreds- eller byretten i den

rettskretsen der saksøkeren er i samsvar med vedtaket eller

der han har sitt heimting eller hadde heimting før vedtaket

ble satt i verk.

Søksmål kan ikke reises uten at vedkommende har nytta den

retten han har til å klage over vedtaket til overordna

forvaltningsorgan, og klagen er avgjort av den høgste

klageinstansen som står åpen. Når særlige grunner taler for

det, kan retten behandle saka enda om vedkommende ikke har

klaga eller klagesaka ikke er avgjort.

§ 476. Saksøker er den som tvangsinngrepet er retta mot.

Vedkommende kan reise søksmål på egen hånd dersom han har evne

til å forstå hva saka gjelder. Likevel kan barn først reise

søksmål når det har fylt 15 år.

Vergen kan reise sak på vegne av en umyndig, og ektefellen

på vegne av en gift person. For øvrig kan sak reises på vegne

av en annen bare etter særskilt lovføresegn.

Staten ved departementet er saksøkt.

Søksmålet reises ved at saksøkeren krever saksanlegg.

Kravet rettes til den myndighet som har gjort vedtaket om

tvangstiltak. Vedkommende myndighet skal uten opphold sende

kravet om søksmål og saksdokumenta til herreds- eller

byretten.

§ 477. Saksanlegget er ikke til hinder for at

tvangsinngrepet settes i verk eller opprettholdes med mindre

retten fastsetter noe anna.

§ 478. Retten skal påskynne saka mest mulig. Fristene for

varsel til rettsmøte kan fravikes av rettens formann.

Hovedforhandling kan berammes straks uten saksførebuing.

Føresegnene om rettsferier gjelder ikke.

§ 479. Retten avgjør om hovedforhandling skal holdes i

rettslokale, eller på sjukehus eller institusjon der

saksøkeren er.

Saka behandles for stengte dører.

§ 480. Skal retten settes med meddommere, oppnevnes disse

av dommeren.

Kongen kan opprette et eller flere utvalg av personer med

fagkyndighet i saker som skal behandles etter dette kapittel.

NÃ¥r dommeren finner grunn til det kan han oppnevne sakkyndige

og meddommere som ikke står i utvalget.

§ 481. Uteblir saksøkeren uten gyldig forfall, kan retten

gjøre vedtak om at han skal hentes til samme eller et anna

rettsmøte. Retten kan unnlate å motta partsforsikring.

Dersom retten finner det ubetenkelig, kan personlig avhør

av saksøkeren unnlates. Retten kan utelukke saksøkeren fra å

være til stede under visse deler av hovedforhandlingen eller

helt unnlate å kalle han inn, dersom hans nærvær på grunn av

hans helsetilstand eller alder må anses utilrådelig. I så fall

skal han av rettens formann gjøres kjent med hovedinnholdet av

de forhandlinger som har funnet sted under hans fravær, dersom

han kommer til stede.

Rettens formann kan vedta at saksøkeren ikke skal kunne

kreve å få se saksdokumenta, dersom en slik adgang på grunn av

saksøkerens helsetilstand eller alder er utilrådelig. I så

fall skal rettens formann eller prosessfullmektig eller annen

representant for saksøkeren etter oppmoding fra denne gjøre

han kjent med hovedinnholdet av dokumenta i den utstrekning

opplysningene er av interesse for saka.

Utenrettslige forklaringer og erklæringer kan brukes når

retten finner det ubetenkelig.

Retten kan nekte å oppnevne sakkyndige når slik oppnevning

finnes unødvendig fordi retten settes med fagkyndige

meddommere.

Retten sørger for at saka blir fullt opplyst.

§ 482. Innafor rammen av vedkommende lov skal retten prøve

alle sider av saka.

Retten er ubundet av det partene gjør gjeldende og av

påstandene.

§ 483. Staten bærer alle kostnader ved saka. Ansvar for

sakskostnader pålegges ikke uten særlige grunner taler for

det.

§ 484. Saksøkeren gjøres kjent med dommen og ankereglene

på den måte retten bestemmer. Dersom det anses hensiktsmessig,

kan det overlates til prosessfullmektigen hans å gjøre det.

§ 485. Anke over herreds- eller byrettens avgjerd hører

under Høgsterett.

Er søkeren lagt inn tvangsmessig, kan han anke muntlig

eller skriftlig for styreren (direktøren) for sjukehuset eller

institusjonen. Er anken muntlig, skal mottakeren syte for at

den blir skrevet ned. Anken skal uten opphold sendes til den

retten som har avsagt dommen.

For anke fra saksøkeren gjelder ikke § 364 andre ledd og

§ 365.

Den retten som mottar anken avgjør om førebuende

ankebehandling skal finne sted.

For behandlinga i Høgsterett gjelder § 478 og §§ 481-84 så

langt de høver.

§ 486. Når en dom som fastsetter eller stadfester et

tvangsinngrep er blitt rettskraftig, kan ny sak ikke reises

før ett år er gått.

Når vedkommende tidligere har fått prøvd sin sak for

domstolene, og retten finner at det ikke foreligger nye

opplysninger eller bevis av betydning, kan den avgjøre saka

uten forutgående muntlig forhandling og uten å tilkalle

meddommere."

Translation

"Chapter 33. Cases relating to review of administrative

decisions concerning deprivation of liberty and other

enforcement measures

Section 474. The rules in this chapter apply to legal

proceedings which, pursuant to special statutory provisions,

may be instituted against the public authorities for the

review of administrative decisions concerning deprivation of

liberty or other administrative enforcement measures.

Section 475. The legal proceedings shall be instituted

before the City or District Court at the venue where the

plaintiff actually is pursuant to the administrative decision

or where his home venue is or was before the said decision was

implemented.

The legal proceedings cannot be instituted unless the

person concerned has invoked his right to appeal against the

decision to a superior organ of the public administration, and

such appeal has been decided by the highest appeal organ to

which he has access. When indicated on special grounds, the

court may hear the case even if the person concerned has not

appealed or the appeal has not been decided.

Section 476. The plaintiff is the person against whom the

enforcement measure is directed. The person concerned may

institute legal proceedings on his own initiative if he is

capable of understanding the purport of the case. Nevertheless

a child may not institute legal proceedings before reaching

the age of 15.

A guardian may institute legal proceedings on behalf of a

person incapable of managing his own affairs, and the spouse

on behalf of a marriage partner. Otherwise, legal proceedings

may be instituted on behalf of another person only in

accordance with special statutory provisions.

The State, represented by the Ministry concerned, is the

defendant.

The legal proceedings are instituted by the plaintiff

demanding legal action. The request shall be addressed to the

authority which has taken the decision concerning enforcement

measures. The relevant authority shall immediately send the

request for legal action and the documents in the case to the

District or City Court.

Section 477. The institution of proceedings shall not

preclude the application or continuance of the enforcement

measure unless the court decides otherwise.

Section 478. The court shall as far as possible expedite

the case. The time-limits for notification of the court

hearing may be departed from by the president of the court.

The date for the main hearing may be set at once without any

formal legal preliminaries. The provisions regarding court

vacations shall not apply.

Section 479. The court shall decide whether the main

hearing is to be held in the court premises, or at the

hospital or institution where the plaintiff is.

The case shall be heard in camera.

Section 480. If the court is to be set with lay judges,

these shall be nominated by the judge.

The King may appoint one or several panels of persons

possessing the relevant expert knowledge in cases to be heard

pursuant to this chapter. If the judge considers there are

grounds for so doing, he may appoint experts and lay judges

who are not included in the panel.

Section 481. If the plaintiff defaults without due cause,

the court may adopt a decision to the effect that he shall be

brought to the same or another session of the court. The court

may waive the requirement of receiving an assurance on the

part of the plaintiff.

If the court has no misgivings in that regard, personal

interrogation of the plaintiff may be waived. The court may

exclude the plaintiff from attending certain parts of the main

hearing or entirely dispense with summoning him to attend, if

his attendance on account of his state of health or age must be

considered inadvisable. In such a case he must be acquainted

by the president of the court with the principal content of

the proceedings which have been conducted in his absence,

should he make an appearance.

The president of the court may decide that the plaintiff

shall not be able to demand to see the documents in the case,

if such access is inadvisable on account of the plaintiff's

state of health or age. In such cases the president of the

court or the counsel for the plaintiff or some other

representative of the plaintiff at the latter's request shall

acquaint him with the principal content of the documents

insofar as the information therein is of interest for the

case.

Out-of-court declarations and statements may be used if the

court has no misgivings in that regard.

The court may refuse to appoint experts if such appointment

is considered unnecessary because the court is set with lay

judges possessing the relevant expert knowledge.

The court shall ensure that the case is fully elucidated.

Section 482. Within the framework of the relevant Act the

court shall examine all aspects of the case. The court shall

not be bound by the parties' contentions or allegations.

Section 483. The State shall cover all costs in the case.

Liability for the costs of the case shall not be imposed on

the party unless there are special grounds for so doing.

Section 484. The plaintiff shall be informed of the

judgment and of the rules governing appeals as and how the

court decides. If deemed appropriate, this matter may be left

to his counsel.

Section 485. Appeals against decisions made by the

District or City Court are in the purview of the Supreme

Court. If the appellant has been compulsorily admitted, he may

appeal orally or in writing to the administrator (director) of

the hospital or institution. If the appeal is made orally, the

person to whom it is made shall ensure that it is written

down. The appeal shall be sent without delay to the court

which has rendered judgment.

In respect of appeals from the plaintiff, Section 364

second paragraph and Section 365 shall not apply.

The court which receives the appeal shall decide whether

preliminary appeal proceedings are to take place.

The Supreme Court shall appoint an advocate for the

plaintiff. The advocate's fees shall be determined by the

court.

For hearings in the Supreme Court, Section 478 and Sections

481-484 shall apply insofar as they are suitable.

Section 486. When a judgment which determines or lays down

an enforcement measure has become res judicata, a new case

cannot be instituted before one year has elapsed.

If the person concerned has previously had his case

reviewed by the courts, and the court finds that there is no

new information or evidence of importance, it may decide the

case without any preliminary oral proceedings and without

summoning lay judges."

79. This chapter applies to persons who are compulsorily committed

to mental hospitals regardless of whether they are subjected to

security measures or not. Chapter 33 only applies when this is

explicitly stated in statutory provisions. It follows from Section 9 A

of the Mental Health Act that a decision of the Supervisory Board to

commit a person to hospital or to refuse to discharge him may be

brought before the courts. The courts may control every aspect of the

administrative discretion, including matters of pure expediency.

Having recourse to psychiatric experts, the courts will decide whether

the conditions for compulsory committal to hospital under Section 5 of

the Mental Health Act are fulfilled, in particular whether the person

concerned is suffering from a serious mental illness.

80. Chapter 33 applies to a person subjected to security

measures under Section 39 para. 1 (e) of the Penal Code when he is

compulsorily committed to a mental hospital in accordance with Section

5 of the Mental Health Act. It is not applicable, however, when the

person is placed outside psychiatric hospitals (f. ex. in a security

ward) under Section 39 para. 1 (e). Neither is it applicable to a

person arguing that a decision of the Ministry of Justice to impose

security measures under Section 39 para. 1 (f) of the Penal Code

(preventive detention) is invalid.

III. SUBMISSIONS OF THE PARTIES

A. The applicant

81. The applicant submits that the Government's observations

relating to Article 5 para. 4 of the Convention are based on a wrong

assumption. The Government allege that the applicant must be

considered to be a person of unsound mind within the meaning of

Article 5 para. 1 (e) and that he is deprived of his liberty as a

consequence of this fact. On the contrary it is clear that the

applicant was not considered mentally ill after the judicial

observation in 1978. He was considered as a person with an

underdeveloped and impaired mental capacity. Only in March 1987 was

he considered to be seriously mentally ill within the context of the

Mental Health Act, Section 5. This means that in the period from 1978

to 1987 the applicant could not be hospitalised in psychiatric

institutions without his consent. The detention of the applicant - in

the context of the Convention - is not to be considered under Article

5 para. 1 (e) but under Article 5 para. 1 (a).

82. The Government mention that once a year the applicant has the

opportunity to bring the question of further preventive detention

before the courts and that the requirements of a regular judicial

control in Article 5 para. 4 are fulfilled for this reason. The

courts' possibilities of control are, however, quite limited. If the

Ministry of Justice takes a decision to detain the applicant, the

courts have, in reality, no possibility to quash such a decision.

83. Thus there is no way the courts could possibly test the

professional judgment of the administration about which therapy would

be the best for the applicant. This is even more difficult as

the courts are not presented with concrete, realistic alternatives.

84. There is nothing the courts can do but, in their judgments, to

repeat the urgent requests to avoid detention. This has been done in

all the judgments concerning the applicant. However, the courts do

not have the competence to order the administration to effect

alternatives to detention. This is what has happened in all the

judgments concerning the applicant since 1978: Requests from the courts

to avoid detention - which are not complied with by the administration

because it is not obliged to. Therefore, the possibility mentioned by

the Government is merely a formal possibility without any realistic

content and thus in conflict with Article 5 para. 4 which guarantees a

right to judicial review of both the substantive and the formal

lawfulness of the detention.

85. The available legal procedure in Norway is similar to habeas

corpus proceedings formerly found insufficient to fulfil the

requirements of Article 5 para. 4 (cf. Eur. Court H.R. X v. United

Kingdom, judgment of 5 November 1988, Series A No. 46), because the

court may only examine whether the decision is the result of abuse of

power, incorrect assessments of facts or clearly unreasonable. The

discretionary and substantive elements may not be examined and these

elements are of the greatest importance.

86. The Government mention that, if for example one of the yearly

decisions concerning the use of security measures were to be taken

notwithstanding the fact that the person was no longer of unsound mind,

the decision would be invalid. This seems to imply that a court could

examine the substantive lawfulness of detention. However, this would

only be the case insofar as the person concerned was detained under

the Mental Health Act.

87. To impose and continue security measures does not necessarily

mean that the person is of unsound mind. It is sufficient that he was

of unsound mind when the offence was committed, or that he suffered

from an impaired mental capacity, or that he was in a state of

unconsciousness following a self-inflicted intoxication. A change in

the mental situation does not prevent security measures. Preventive

detention also serves punitive ends. At present preventive detention

is considered as punishment in relation to the Constitution, but not

in criminal law. A new proposal suggests that preventive detention

shall be considered as punishment in both relations.

88. The essential question is whether the applicant could have

brought his case before a court in order to have the lawfulness of his

detention examined. In this connection it is of significance that he

was placed in detention several times by administrative decisions.

Although the decisions to detain him again or to place him in another

kind of detention may be classified as the execution of a court

sentence, such detention was nevertheless the direct result of

administrative decisions.

89. There does not appear to be any case-law showing that a court

has considered administrative decisions on security measures under

Section 39 para. 1 (f) of the Penal Code. Furthermore, the only

case-law concerning detention under Section 39 para. 1 (e) is the case

brought before the Oslo City Court by the applicant.

90. According to existing case-law the Supreme Court of Norway has

stated that detention in a psychiatric hospital according to Section 39

para. 1 (e) of the Penal Code could only be enforced when the conditions

according to the Mental Health Act were also fulfilled. However, that

case-law is not applicable outside psychiatric hospitals or when a

person is detained under Section 39 para. 1 (f) of the Penal Code.

91. If a court would find that the detention ordered by the Ministry

of Justice under Section 39 para. 1 (f) is unlawful, the court would not

have the authority to release the person. The court could only state

that this decision is unlawful, because the Ministry of Justice might

have other reasons for detaining the person in question and this is

covered by the discretionary powers of the administration which the

court cannot consider.

92. The court can only give orders to the administration if there

are laws prescribing the exact conditions for detention so that the

court may conclude that the lack of one condition gives no other

alternative than to release the person concerned. But since there

is no such law the courts have no possibility to draw such conclusions.

93. In other words there are no laws by which the lawfulness of

the administration's decisions can be considered.

94. Should the Government's contentions concerning the existence

of a remedy in accordance with Article 5 para. 4 of the Convention be

accepted it is submitted that such a remedy examining the case under

the unwritten constitutional principles of judicial supremacy would

not fulfil the requirement of speediness set out in Article 5 para. 4

of the Convention.

95. Different committees have discussed changes in the laws about

decisions regarding security measures. Some have even discussed if

the rules are in conflict with Article 5 of the Convention. They have

all concluded that the question is open and have therefore proposed

new laws. But until now such proposals have not been followed up by

the Government and the Parliament. The last committee -

"Saerreaksjonsutvalget" - has the task to consider this. It has not

finished its work yet.

B. The Government

96. The Government submit that, according to the case-law under

Article 5 para. 4 of the Convention, a person of unsound mind

compulsorily confined in a psychiatric institution for an indefinite

or lengthy period is in principle entitled, at any rate where there is

no automatic periodic review of a judicial character, to take

proceedings at reasonable intervals before a court to put in issue the

"lawfulness" - within the meaning of the Convention - of his detention

(cf. inter alia Eur. Court H.R., Winterwerp judgment of 24 October

1979, Series A No. 33).

97. The applicant must be considered to be a person of "unsound

mind" within the meaning of Article 5 para. 1 (e), and to be deprived

of his liberty as a consequence of this fact. As regards the

applicability of Article 5 para. 1 (a), the Government agree that

preventive measures may fall within the scope of that provision. It

should also be noted that preventive detention in the present case

will "follow and depend upon" the "conviction" of the courts (cf. Eur.

Court H.R., X v. UK, judgment of 5 November 1981, Series A No. 46, and

Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A

No. 50). The principle of periodic judicial review embodied in Article 5

para. 4 is in any event applicable in the present case.

98. The Norwegian system of preventive detention is in conformity

with this principle. It follows from Section 11 of the regulations

concerning the use of preventive measures that the Ministry of Justice

shall consider the question of whether to terminate or alter the

measures imposed at least once a year. Moreover, the question will be

considered following a request from the person concerned. The

administration's decision is subject to judicial review by the

courts. The applicant therefore has the opportunity to bring the

question of further preventive detention before the courts once a year

and, in addition, whenever his application for changing the measures

is rejected by the administration.

99. Consequently, it is the opinion of the Government that the

requirements of regular judicial control in Article 5 para. 4 are

fulfilled.

100. It also follows from Article 5 para. 4 that the courts shall

have the competence to decide on the lawfulness of the detention.

According to case-law, the periodic review should be wide enough to

bear on those conditions which, under the Convention, are essential

for the "lawful" detention of a person. However, the provision does

not embody a right to judicial control of such scope as to empower the

court, on all aspects of the case, including questions of pure

expediency, to substitute its own discretion for that of the decision-

making authority.

101. Whenever a decision has been taken, a person deprived of his

liberty has the possibility to bring the matter before the courts in

accordance with the unwritten constitutional principles of judicial

supremacy.

102. If the case is brought before a court, it will ascertain

that the decision to implement the security measure at issue falls

within the authorisation given in the initial judgment. It will also

consider whether the requirements of substantive and procedural legal

provisions are complied with. At this stage the principle stated in

Section 39 para. 3 of the Penal Code will be of particular importance.

According to that provision, preventive measures shall be terminated

when they are "no longer regarded as necessary". If, for example, the

court would find - on the basis of medical expertise - that the person

concerned is no longer of unsound mind or does not any more represent

a danger to society, an administrative decision to impose security

measures would be declared invalid, the reason being that a danger

would no longer exist that the person concerned will repeat a

punishable act, which must be prevented by measures under Section 39

para. 1.

103. The competence of the court is limited in relation to the

administrative discretion, such as an assessment of the most expedient

choice between alternative security measures. This limitation is

based on the presumption that the administration, which is

continuously following the development of the convicted person, is

more qualified to decide upon these matters than the courts. Moreover,

a system where the administrative authorities have the main

responsibility for implementing security measures opens for

considerable flexibility and enables the administration to adapt the

measures according to the development of the convicted person.

104. On the other hand, the administrative discretion is not

unlimited. If the decision can be regarded as abuse of power, for

instance if it is clearly unreasonable in relation to the person

concerned, the court may conclude that the decision is invalid.

105. This principle gives the courts a certain possibility of

controlling the discretionary parts of administrative decisions as

well. The decision has to be based on relevant considerations, which

shall be given the importance they deserve. A decision may also be

found invalid if the Ministry decides to impose preventive measures

which are obviously much more stringent than necessary.

106. Furthermore the courts will consider any allegation that the

administrative decision is not in conformity with the Convention.

Consequently, the Convention would be an important source of law in

the interpretation and application of the substantive and procedural

legal provisions.

107. Regarding the question of speed it follows from the Convention

organs' case-law that the scope of the obligation under Article 5

para. 4 is not identical in all circumstances or for every kind of

deprivation of liberty (cf. e.g. Eur. Court H.R., Bouamar v. Belgium,

judgment of 29 February 1988, Series A No. 129 with references). In

particular, the concept "speedily" cannot be defined in the abstract

but must be assessed in the light of the circumstances of the

particular case (cf. Christinet v. Switzerland, Comm. Report 1.3.79,

para. 41, D.R. 17 p. 35).

108. When considering the requirement of a speedy decision, the

element of initial court authorisation is of great importance. It

should be recalled that for several years the applicant was subjected

to security measures in pursuance of four court decisions given in

1967, 1978, 1983 and 1985. The issue whether authorisation should be

given to the administration to impose such measures was on all

occasions thoroughly studied in proceedings meeting the requirements

of Article 6 of the Convention. On each occasion, the courts

authorised such measures for a five-year period and - with one

exception - in their full scope, i.e. Section 39 para. 1 (a) to (f).

109. It is important to note that the applicant's mental state has

been fairly stable over the years. This is shown by the four medical

reports submitted in connection with the oral hearings. The

applicant's personality and character have changed very little, in

spite of eleven and a half years in psychiatric institutions. This

stability is important in relation to the requirements of Article 5

para. 4, the object and purpose of which is to prevent arbitrary

detention.

110. Given the applicant's basic personality and behaviour

disorder, he is prone to aggressive outbreaks and violent behaviour.

Incidents of aggression occur unexpectedly. Inasmuch as his level of

aggression varies greatly, preventive detention may have to be imposed

rather frequently and for rather short periods. To require court

control immediately or within a very short time whenever a decision

is taken under Section 39 para. 1 (e) or (f) would not be necessary to

prevent arbitrary detention.

111. Taking into consideration all the circumstances of the case,

it is the opinion of the Government that the applicant has been

entitled to take proceedings by which the lawfulness of his detention

would have been decided speedily.

*

* *

112. The Government further observe that the legal basis of the

review of administrative decisions concerning deprivation of liberty

and other enforcement measures is Chapter 33 of the Code of Civil

Procedure of 13 August 1915. In the context of the present case it

should be noted, however, that this Chapter applies to persons who are

compulsorily committed to mental hospitals. Whether they are

subjected to security measures or not is irrelevant. Consequently,

a decision of the Ministry of Justice to detain a person in pursuance

of Section 39 para. 1 (f) of the Penal Code is not subject to court

review under Chapter 33.

113. In cases relating to compulsory committal to or retention in a

mental hospital, the courts may control every aspect of the

administrative discretion in accordance with Chapter 33, including

matters of pure expediency. Having recourse to psychiatric experts,

the court will decide whether the conditions for compulsory committal

to hospital under Section 5 of the Mental Health Act are fulfilled, in

particular whether the person concerned is suffering from a serious

mental illness. The underlying reason for this special system of

court review is that compulsory detention in a mental hospital is an

extremely far-reaching encroachment upon the private sphere of the

individual.

114. It follows from Norwegian case-law that Chapter 33 of the Code

of Civil Procedure is applicable to a person subjected to preventive

measures under Section 39 para. 1 (e) of the Penal Code when he is

compulsorily committed to a mental hospital in accordance with Section

5 of the Mental Health Act. The person concerned may therefore avail

himself of this judicial procedure provided that he has complained to

the Supervisory Board.

115. To sum up: a person detained in prison under Section 39 para. 1

(f) of the Penal Code may bring his case before the courts in

accordance with the general principles of judicial review. Chapter 33

of the Code of Civil Procedure is not applicable to a person arguing

that a decision of the Ministry of Justice to impose preventive

measures under Section 39 para. 1 (f) is invalid. However, should he

under Section 39 para. 1 (e) be compulsorily committed to hospital in

accordance with Section 5 of the Mental Health Act, Chapter 33 applies

to the decision of the Supervisory Board.

116. If a court finds that a decision of the Ministry of Justice

under Section 39 para. 1 (f) is not lawful, that decision will be

declared invalid. The person concerned will then be subjected to the

measures applied before the invalid decision was taken, for instance

security measures outside the institution under Section 39 para. 1

(a) to (c). The Ministry will be legally excluded from making a new

decision under Section 39 para. 1 (f) as long as the court's reason

for declaring the decision invalid applies.

117. To the Government's knowledge, there is no case-law whereby a

court has overruled any decision of the Ministry of Justice under

Section 39 taken in connection with its annual review or as a

consequence of an initiative from a person subjected to security

measures. However, the court's competence to do so follows from the

established constitutional doctrine of judicial supremacy. And the

crucial question under Article 5 para. 4 of the Convention is whether

a person deprived of his liberty has the right to bring his case

before the courts and not whether he in fact decides to take

proceedings to which he is entitled.

118. In the Government's view the system of court review in

relation to the implementation of security measures is in conformity

with Article 5 para. 4 of the Convention.

119. At the same time, it should be noted that the system of

security measures has been discussed de lege ferenda on several

occasions, for instance by the Permanent Committee on Penal Reforms

(Straffelovrådet) which on request from the Ministry of Justice

submitted a report in 1974 (NOU 1974:17 Strafferettslig utilregnelighet

og strafferettslige saerreaksjoner).

120. Moreover, a commission under the Ministry of Justice is for the

time being working on an overall revision of the Penal Code

(Straffelovkommisjonen). In its general report in 1983 (NOU 1983:57

Straffelovgivningen under omforming), the commission mentioned (p. 199)

that the question had been raised whether the present provisions

relating to preventive measures were in breach of Article 5 para. 4.

However, the report simply refers to this question and does not

contain any study or arguments relating to that Article. A sub-

committee under the commission is presently studying the problems

relating to criminal liability and preventive measures

("strafferettslige saerreaksjoner").

IV. OPINION OF THE COMMISSION

A. Point at issue

121. The point at issue is whether the applicant could rely on an

appropriate procedure allowing a court to determine speedily the

lawfulness of his detention as required by Article 5 para. 4 (Art. 5-4) of the

Convention.

B. Article 5 para. 4 (Art. 5-4) of the Convention

122. Article 5 para. 4 (Art. 5-4) of the Convention provides:

"Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a

court and his release ordered if the detention is not lawful."

123. In the present case the Commission recalls that the applicant

was convicted several times where, in addition to relatively short

terms of imprisonment, the courts authorised the implementation of

security measures. The authorisation given in the last judgment of the

Supreme Court of 12 January 1985 expires on 25 February 1990. The

courts, notably the Supreme Court which only had to consider the issue

of security measures, made it quite clear what purpose such measures

were meant to serve in the applicant's case. The intention was to make

the applicant, who was qualified by the Supreme Court as an offender

of "distinct danger", subject to security measures during a period of

five years in the interest of public safety. Under the applicable

Norwegian system this would enable the Ministry of Justice to monitor

the applicant's progress and release or detain him when this would

prove appropriate. As the applicant did not fulfil the requirements of

the Mental Health Act for admission to a mental hospital, this would

appear to have been the only possibility of achieving the purpose of

public safety. In substance, the applicant was being put at the

disposal of the State because he needed continued supervision in

custody for a certain period of time and, as a consequence, periodic

reassessment in order to ascertain the most appropriate manner of

dealing with him.

124. The measure ordered against the applicant is thus comparable

to the Belgian measure at issue in the Van Droogenbroeck case

(judgment of 24 June 1982, Series A no. 50), i.e. the placing of a

recidivist or habitual offender at the disposal of the Government. The

legitimate aim (the social protection and the rehabilitation of

offenders) pursued by the measure and its effects on the convicted

person are in principle the same in both cases.

125. The parties agree that in such circumstances a judicial

control should be available to the applicant despite the court control

carried out during the actual trials in the course of which he was

sentenced to imprisonment followed by security measures. This also

follows from the case-law of the Commission and the Court. It would

suffice to refer to the considerations expounded by the Court in the

above-mentioned Van Droogenbroeck case (pp. 23-27 paras. 44-49 of the

judgment), which confirms the Commission's own opinion (Comm. Report

9.7.80, Eur. Court H.R., Series B No. 44, pp. 26-28, paras. 59-68).

The Commission accordingly finds that Article 5 para. 4 (Art. 5-4) requires an

appropriate procedure in the case of a detention ordered under Section

39 of the Penal Code and has therefore considered whether the

applicant did have a remedy satisfying this requirement (cf. also D.

v. Belgium, Comm. Report 4.3.88, paras 45-46).

126. The applicant should have the right to apply to a "court".

This right should be exercisable by him at the moment of any return to

custody after being at liberty and also at reasonable intervals during

the course of the authorised periods of preventive detention.

127. The term "court" referred to in Article 5 para. 4 (Art. 5-4) serves to

denote bodies which exhibit not only common fundamental features, of

which the most important is independence of the executive and of the

parties to the case, but also the guarantees, appropriate to the kind

of deprivation of liberty in question, of a judicial procedure. In

addition the body in question must not have merely advisory functions

but must have the competence to decide the lawfulness of the detention

and to order release if the detention is unlawful (cf. Eur. Court

H.R., Weeks v. United Kingdom, judgment of 2 March 1987, Series A

No. 114, p. 30, para. 61).

128. As to these requirements, the Commission first recalls that

the applicant could bring his case before the ordinary courts without

involving the King in Council. The Commission has no doubt that these

courts fulfil the requirements as to independence and impartiality

vis-à-vis the executive. Likewise the Commission is satisfied that the

procedure to be used in court could, as such, be accepted.

129. It remains, however, to examine whether the court remedy

available to the applicant when detained in pursuance of Section 39

para. 1 (e) and (f), in particular during the lengthy periods of

detention at Ila and Ullersmo, would fulfil the other requirements set

out in Article 5 para. 4 (Art. 5-4) of the Convention.

130. The Commission recalls that the applicant's detention at issue

in this case appears to have started on 4 July 1978 when he was sent

to Ila National Penal and Preventive Detention Institution for the

first time in pursuance of Section 39 para. 1 (e) of the Norwegian

Penal Code. Furthermore, the Commission recalls that the authorisation

to impose preventive measures does not expire until 25 February 1990.

The facts of the case, as established by the Commission, show that the

applicant's case, during this period of approximately 10 years, was

considered on numerous occasions and that a number of different

programmes were tried. As, however, the applicant was not considered

psychotic he could not be admitted to a mental hospital - except from

24 February to 4 December 1987 - for which reason his detention during

the remaining period is mainly to be considered as being founded on

the decisions of the Ministry of Justice under Section 39 para. 1

(e) and (f) of the Penal Code.

131. The Government have submitted that, when the applicant was

admitted to a mental hospital in accordance with the provisions of the

Mental Health Act, he could have invoked Chapter 33 of the Code of

Civil Procedure, and thereby requested the courts to examine every

aspect of his case, provided he had complained to the Supervisory

Board. The Government consider that there could be no doubt that the

procedure set out in Chapter 33 of the Code of Civil Procedure would

comply with the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.

Furthermore the Government contend that, when otherwise detained under

Section 39 para. 1 (e) and (f), the applicant could bring his case

before the ordinary courts of law which would examine his case in

accordance with the general principles of judicial review.

132. The basis for the courts' control under these principles is

the unwritten constitutional principle of judicial supremacy. This

would in the Government's opinion mean that the courts ascertain

whether the decision to implement the security measure at issue falls

within the authorisation given in the initial judgment. They consider

whether the requirements of substantive and procedural legal

provisions are complied with, such as for example Section 39 para. 3

of the Penal Code which requires the termination of the security

measures if they are no longer regarded as necessary. Also the courts

consider any allegation that the administrative decision would not be

in conformity with the Convention.

133. The Government accept, though, that the competence of the

courts is limited in relation to the administrative discretion, such

as the assessment of the most expedient choice of preventive measures.

The courts would, however, declare a decision invalid if it could be

regarded as an abuse of power.

134. The applicant has not expressed himself as to the procedures

available insofar as committal to a mental hospital under the Mental

Health Act is concerned, but maintains otherwise that, when the

Ministry of Justice took a decision to detain him, the courts had, in

reality, no possibility to quash such a decision. The available legal

procedure could be compared with the habeas corpus proceedings (cf.

Eur. Court H.R. X v. United Kingdom, judgment of 5 November 1981,

Series A No. 46) since the courts could only examine whether the

decision was a result of an abuse of power, disclosed an incorrect

assessment of facts or was clearly unreasonable. The discretionary and

substantive elements of the Ministry's decision could not, however, be

examined.

135. The applicant has also pointed out that this case shows that

the courts' competence vis-à-vis the administrative decisions under

Section 39 of the Penal Code is illusory in that their decisions not

to place the applicant in a security ward or in a prison have simply

been disregarded. Furthermore the courts would not have the power to

release the applicant, but could only state that the decision was

unlawful. The Ministry of Justice might have other reasons for

detaining him and this would be covered by the discretionary powers of

the administration the exercise of which the courts could not review.

136. The parties agree that there is in Norway no available

case-law whereby a court has overruled a decision of the Ministry of

Justice under Section 39 of the Penal Code taken in connection with

its review of security measures.

137. The Commission recalls that, according to the three medical

opinions obtained in 1978, 1982 and 1984, the applicant was not

mentally ill within the meaning of the Mental Health Act and could not

therefore be admitted to a mental hospital for treatment without his

consent. It follows that, except from 24 February to 4 December 1987,

the applicant did not spend any substantial periods between 1978 and

1989 in an institution to which the procedure set out in Chapter 33 of

the Code of Civil Procedure was applicable. The Commission does not

therefore find it necessary to examine whether this procedure would

comply with the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.

138. Regarding the remedy available under the general principles of

judicial review the Commission recalls that, although Article 5 para. 4

(Art. 5-4) does not guarantee a right to judicial control of such a scope as to

empower the court, on all aspects of the case, including questions of

expediency, to substitute its own discretion for that of the decision

making authority, the review should be wide enough to bear on those

conditions which, according to the Convention, are essential for the

lawful detention of a person subjected to the special kind of

deprivation of liberty ordered against the applicant (cf. above-

mentioned Weeks judgment, p. 29, paras. 58-59).

139. The Commission also recalls the findings of the Court of Human

Rights in the Van Droogenbroeck case where the Court stated: "the

existence of a remedy must be sufficiently certain, failing which it

will lack the accessibility and effectiveness which are required by

Article 5 para. 4..."; (Art. 5-4) and "... the state of the case-law is not yet

such as to establish with adequate clarity whether the review ...

meets, from the point of view of its scope, the requirements of

Article 5 para. 4 (Art. 5-4) regarding a decision on 'lawfulness'" (above-

mentioned judgment, p. 30, para. 54).

140. Having regard to this the Commission finds it established that

there exists in Norway a special procedure set out in Chapter 33 of

the Code of Civil Procedure which regulates the court review of the

detention of persons deprived of their liberty by administrative

decision. The underlying reason for this special system of court

review was, according to the Government, that "compulsory detention in

a mental hospital is an extremely far-reaching encroachment upon the

private sphere of the individual". It is clear, however, that the

applicant could not make use of this procedure when detained under

Section 39 para. 1 (e) and (f) of the Penal Code - unless actually

placed in a mental hospital - but had to rely on these general

principles of judicial review of administrative decisions.

141. It has also been established that there exists no Norwegian

case-law which shows that an administrative decision taken under

Section 39 of the Penal Code has been overruled by the courts. In fact

only one case exists whereby a court has considered such decisions

taken under Section 39 para. 1 (e) outside mental hospitals. This is

the judgment of the Oslo City Court of 27 September 1988 against which

no appeal was lodged by the applicant. Furthermore not a single case

exists whereby the courts have considered administrative decisions

taken under Section 39 para. 1 (f) of the Penal Code. Consequently

the Commission finds that the state of the case-law is not yet such as

to establish with adequate clarity whether the review meets, from the

point of view of its scope, the requirements of Article 5 para. 4 (Art. 5-4).

This view is supported by the commission, established by the Ministry

of Justice, which in 1983 raised the question whether the Norwegian

provisions relating to security measures were in conformity with

Article 5 para. 4 (Art. 5-4) of the Convention.

142. Furthermore the Commission has not been able to establish that

the courts would have the power to order the applicant's immediate

release. The applicant has submitted that they have no such power and

the Government have merely stated that the courts could declare a

decision under for example Section 39 para. 1 (f) invalid. It has not

been established, however, that this would have prevented the Ministry

of Justice from detaining the applicant for other reasons under the

initial authorisation granted, for example with reference to Section

39 para. 1 (e).

143. In addition the Commission has noted that the applicant, when

detained under Section 39 para. 1 (e) on 21 July 1988, instituted

proceedings in the Oslo City Court on 2 August 1988 and that the Court

pronounced its judgment on 27 September 1988, approximately two months

later. This period does not correspond with the notion of "speedily"

as required by Article 5 para. 4 (Art. 5-4) of the Convention.

144. Therefore, the Commission finds that the effectiveness and

speediness required by Article 5 para. 4 (Art. 5-4) of the Convention were

lacking in the circumstances of the present case. The scope of the

control afforded by the remedy available was not wide enough to bear

on the conditions essential for the applicant's detention in the sense

of Article 5 para. 4 (Art. 5-4) of the Convention.

Conclusion

145. The Commission concludes unanimously that there has

been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

13 May 1985 Introduction of the application

16 August 1985 Registration of the application

Examination of admissibility

7 March 1986 Submission of information by the

Government, requested pursuant to

Rule 40, para. 2, sub-para a of the

Commission's Rules of Procedure

6 June 1986 Submission of the applicant's

comments made in regard to the

above information

13 October 1986 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

16 February 1987 Submission of the Government's

observations

31 March 1987 Submission of the applicant's

observations

7 October 1987 Commission's decision to hold a

hearing on the admissibility and

merits of the case

7 March 1988 Hearing on the admissibility and

merits. The parties were

represented as follows:

The applicant: MM. Knut Rognlien

Øyvind Solberg

The Government: MM. Erik Møse

Robert W. Knudsen

Ms. Kari Meling

Mette Walaas

MM. Roger Østbøl

Karsten Helgeby

Date Item

7 and 8 March 1988 Commission's decision to declare

part of the application inadmissible,

to adjourn the examination of the

remainder and to invite the parties

to submit further observations

7 April 1988 Submission of the Government's

further observations

8 April and 7 May 1988 Submission of the applicant's

further observations

12 May 1988 Commission's decision to declare

the remainder of the application

admissible

Examination of the merits

25 July 1988 Submission of the applicant's

observations on the merits

26 August 1988 Submission of the Government's

observations on the merits

8 October 1988 Consideration of the state of

proceedings

18 January 1989 Commission's deliberations on

the merits

9 February 1989 Submission of the applicant's

further observations on the merits

10 February 1989 Submission of the Government's

further observations on the merits

7 March 1989 Commission's deliberations on

the merits

16 March 1989 Commission's deliberations on the

merits, final votes and adoption

of the Report

APPENDIX II

DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF

Application No. 11701/85

by E

against Norway

The European Commission of Human Rights sitting in private

on 12 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 May 1985 by

E against Norway and registered on 16 August 1985 under file

No. 11701/85;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the information and observations submitted by

the respondent Government on 7 March 1986, 16 February 1987 and

7 April 1988, and the information and observations submitted by the

applicant on 6 June 1986, 31 March 1987 and 8 April 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows:

The applicant is a Norwegian citizen, born in 1948. When

introducing the application the applicant was placed at Ila National

Penal and Preventive Detention Institution (Ila Landsfengsel og

Sikringsanstalt) hereafter called Ila. Before the Commission he is

represented by his lawyer, Mr. Knut Rognlien, Oslo, Norway.

A. The particular facts of the case

In 1965 the applicant was involved in a traffic accident which

caused serious brain damage. This has subsequently led to a distinct

tendency to become aggressive.

In 1967 the applicant was convicted of having violated

Sections 227, 228 and 292 of the Norwegian Penal Code (assault and

inflicting bodily harm) and sentenced to preventive detention

(sikring) for a maximum period of five years in accordance with

Section 39 para. 1 a-e of the Penal Code. In an expert opinion

obtained at that time, the applicant was declared mentally ill

(sinnssyk). Accordingly, during the five year term of preventive

detention he spent prolonged periods in psychiatric hospitals.

In 1978 the applicant was subjected to "judicial observation"

(judisiell observasjon) in relation to an episode of violence against

his father. The expert opinion, now obtained, concluded that the

applicant was not mentally ill but should be regarded as a person with

underdeveloped and impaired mental capacity (mangelfullt utviklede og

varig svekkede sjelsevner). The risk of further criminal offences was

therefore imminent.

By judgment of 26 June 1978 pronounced by the District Court

of Kragerø (Kragerø herredsrett) the applicant was sentenced to 60

days in prison and subsequent preventive detention under Section 39

para. 1 a-f of the Penal Code for a maximum period of five years due

to the incident involving violence against his father as mentioned

above. In its judgment the Court pointed out that the preventive

detention in a prison should only be used as an emergency measure

since such detention was likely to have a negative influence on the

applicant. Such detention should therefore, according to the Court,

only be imposed insofar as it was necessary to protect the

applicant's family and himself from aggressive actions which could

easily lead to very serious incidents. The Court expected that the

competent social authorities would take the necessary measures in

order to avoid prolonged stays in prison.

The 60 days of imprisonment imposed by the Court on 26 June

1978 had already been served in detention on remand but as a consequence

of the above judgment the applicant was sent to Ila in accordance with

Section 39 para. 1 a-f on 4 July 1978 for the first time. Before

sending him there, the prosecuting authorities had requested the Telemark

Mental Hospital to receive the applicant. However, the hospital

refused, stating that the applicant had already spent nearly four and

a half years there, alternately in open and closed wards. It had,

however, been impossible to give him any treatment at all. On the

contrary, he had been a threat both to the staff and to the other

patients.

The question of whether the detention at Ila should continue

was taken up by the Ministry of Justice as a consequence of the

applicant's request of September 1978 to be released under protective

surveillance (sikring i frihet). On 18 September 1978 the Director

of Ila informed the Ministry of Justice that although it would not be

easy to find an appropriate solution to the applicant's problems it

would not seem correct to place him in a prison.

On 5 October 1978 the Ministry decided nevertheless that the

applicant should stay there until further notice in accordance with

Section 39 para. 1 e.

On 10 January 1979 the applicant's lawyer applied to the

Ministry of Justice for the applicant's release from the detention at

Ila to protective surveillance in accordance with the court judgment

of 26 June 1978. The application was supported by the Director of Ila

and it appears that the applicant, on 24 April 1979, was released from

Ila under a leave of absence scheme with assigned residence at Skottun

near Skien and subjected to restrictions under Section 39 para. 1 a-c.

However, after approximately one week he was back at Ila since he did

not comply with the conditions imposed. A similar subsequent leave of

absence from Ila, with assigned residence at his parents' place at

Kragerø also failed and the applicant was brought back to Ila by the

police on 16 August 1979.

It furthermore appears that the applicant was transferred, on

1 December 1979, to Telemark Mental Hospital, which provided him with

a flat and work under a supervisory regime ("vernet arbeid"). However,

on 1 January 1980 he was sent back to Ila because he behaved contrary

to the conditions for treatment, on which he and the hospital had

agreed.

On 21 January 1980 the Ministry of Justice decided to release

the applicant with assigned residence at his parents' home. He

arrived there on 4 February 1980. At the end of February 1980,

however, the applicant assaulted a person, in March 1980 he assaulted

his father and in April 1980 threatened his parents so that they were

forced to leave their home. Due to these incidents the applicant was

arrested and detained on remand. By judgment of 15 June 1980 the

District Court of Kragerø sentenced him to 90 days' imprisonment,

which sentence was considered to have been served in detention on

remand. During the remand period the applicant was sent to Telemark

Mental Hospital twice but returned to prison since the hospital could

not take care of him because he threatened the staff and refused to

take the prescribed medicine.

On 24 July 1980 the Ministry of Justice decided to place the

applicant in preventive detention again at Ila in accordance with

Section 39 para. 1 e. He arrived there on 29 July 1980. Whilst in

preventive detention at Ila the applicant accepted to be treated with

medicine and he was transferred to a hospital on whose premises he got

his own flat (hybel). He was also granted a number of permissions to

leave the premises. On 2 June 1981 the applicant was again released

to his parents' home under protective surveillance in accordance with

Section 39 para. 1 a-c but after a number of unfortunate episodes the

Ministry of Justice on 1 July 1981 decided to detain the applicant at

Ila again under Section 39 para. 1 e. The applicant was thus detained

there again on 17 July 1981.

On 5 February 1982 the Ministry decided to apply Section 39

para. 1 f and the applicant was transferred to the district prison of

Oslo on 16 February 1982.

He was subsequently transferred to Ullersmo National Penitentiary

where he arrived on 4 November 1982.

By judgment of 18 March 1983 the applicant was convicted by

the District Court of Asker and Bærum (Asker og Bærum herredsrett) and

sentenced to six months' imprisonment for having, in three cases,

assaulted prison staff whilst in preventive detention at Ila and

Ullersmo National Penitentiary. As before the psychiatric expert

concluded that the applicant was not mentally ill but suffered from an

underdeveloped and impaired mental capacity. With regard to

preventive detention the Court pointed out that the information

available showed that this kind of detention in a prison or similar

institution was inappropriate and had a destructive influence on the

applicant. The Court found that the applicant clearly belonged to the

category of persons who needed psychiatric care and thus found that

everything should be done to give the applicant adequate treatment.

In addition to the six months' prison sentence the Court authorised

the competent authority to impose protective measures under Section 39

para. 1, except, however, detention in a prison or similar institution

as set out in Section 39 para. 1 e and f.

Having served his six months' prison sentence the applicant

was accordingly released on 18 November 1983 and placed in an

apartment at Kragerø under the surveillance of the local police. On

19 December 1983, however, he was arrested again and detained on

remand charged with a new violation of Sections 227 and 228 of the

Penal Code. A new expert opinion on the applicant's mental capacity

was obtained but it reached the same conclusion as the two preceding

opinions mentioned above. During his detention on remand he was

at Reitgjerdet Mental Hospital from 4 to 26 January 1984.

The applicant remained in detention on remand at Ila from

26 January 1984 until 20 September 1984 when the District Court of

Kragerø in its judgment of the same date found the applicant guilty of

most of the charges brought against him and sentenced him to 120 days'

imprisonment which was considered to have been served in detention on

remand. Furthermore, the Court authorised the prosecuting authority to

impose preventive measures under Section 39 para. 1 a-f for a maximum

period of five years. The Court explained thoroughly the extent of

the preventive measures and referred to the earlier decision in this

respect. The Court found that it would undoubtedly be dangerous to

release the applicant, having regard to his almost total lack of self-

control in certain situations and his physical strength. The Court

would not, therefore, rule out that the competent authorities could

use preventive detention in a prison or similar institution under

Section 39 para. 1 e and f should this prove necessary. This was

apparently found necessary since the applicant remained at Ila.

The applicant appealed against the decision as to the

preventive detention to the Supreme Court. However, on 12 January

1985 the Supreme Court upheld the decision.

Whilst the applicant's criminal case was pending, ending with

the above Supreme Court judgment, he stayed at Ila. As indicated in

the above judgment a programme was worked out for his placement in

Telemark but he refused it due to the fact that he would be forced to

take certain medicine (depotmedisinering). Therefore the applicant

remained at Ila also after the judgment. From 1 January to 30

September 1985 he was given one-day leaves 27 times and during the

same period he was placed in solitary confinement five times due to

threats and aggressive behaviour. On 30 September 1985 the applicant

attacked a prison officer for which reason he was placed in a security

cell. On 7 October 1985 he was transferred to solitary confinement.

On 7 November 1985 the applicant was transferred to Ullersmo

National Penitentiary.

After the applicant's arrival at Ullersmo the authorities

looked for alternative places outside the prison. He was now prepared

to fulfil the conditions laid down in the Telemark project mentioned

above and on 27 November 1985 an application was lodged with the

hospital which was supposed to supervise this. On 13 December 1985

the hospital responded that it was in principle willing to take over

the responsibility for the applicant, but it was impossible until a

department for difficult patients had been set up.

Previously, on 23 November 1985, Ullersmo submitted an

application to Reitgjerdet Mental Hospital, which by letter of 12

December 1985 answered that it was prepared to accept the applicant

for treatment. However, according to the present general regulations

applicable to that institution, only patients who are "seriously

mentally deranged" may be admitted (Temporary General Directions for

Reitgjerdet Hospital of 1 July 1982, Section 2). As the applicant did

not fall within this group of persons, Reitgjerdet asked the Public

Health Department of the Ministry of Social Affairs for a dispensation.

On 26 February 1986 the Public Health Department declared that it was

legally precluded from making exceptions from the general regulations.

Nevertheless, the applicant spent 23 days at Reitgjerdet mental

hospital in May 1986. However, he was sent back to Ullersmo since the

competent authorities found that the requirements for staying at the

hospital were not fulfilled. The applicant was not psychotic in their

opinion.

By judgment of 29 October 1986 the applicant was convicted by

the District Court of Asker and Bærum and given a suspended sentence

of 45 days' imprisonment for the attack on a prison officer, which, as

mentioned above, occurred on 30 September 1985.

On 12 January 1987 the applicant 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 returned to Ullersmo due to an

attack on a nurse. On 24 February 1987 the applicant was transferred

to Reitgjerdet Mental Hospital for certain examinations which showed

that he was psychotic. He was therefore kept at the hospital on a

compulsory basis. On 4 December 1987, the hospital (which is now

called Trøndelag Psychiatric Hospital) decided that he could no longer

be considered psychotic but he remained there on a voluntary basis.

After some weeks, the applicant became aggressive towards other

patients and the staff. He repeatedly attacked a nurse, seizing her

by the throat and threatening to kill her. As a consequence, he could

no longer stay in the hospital's ordinary ward. As he refused to be

placed in the ward for difficult patients, he was sent back to

Ullersmo where he stayed for one month. In the meantime, the

authorities pursued their efforts to find a solution under the

auspices of Telemark Mental Hospital. With effect from 8 February

1988, the preventive measures were changed. The applicant was no

longer to stay at Ullersmo, but was assigned residence in a house in

the town of Skien under the supervision of the Probation and Aftercare

Service (Kriminalomsorg i frihet). The applicant was there under the

daily supervision of two social workers from Telemark Mental Hospital

which is responsible for his social training.

By letter of 7 May 1988 the applicant's representative

submitted the following:

On 19 April 1988 the Ministry of Justice decided to detain the

applicant at Arendal District Prison in accordance with Section 39

para. 1 f of the Penal Code since he had allegedly behaved aggressively

towards the two social workers.

On 27 April 1988 the applicant's representative instituted

proceedings in the City Court of Oslo (Oslo byrett) maintaining that

the applicant should be released since the decision to detain him was

null and void. At present this question is pending before the City

Court.

B. Relevant domestic law and practice

I. The legal basis for preventive measures is Section 39 of the

Penal Code of 22 May 1902. Section 39 para. 1 a - f reads as follows:

"1. If an otherwise punishable offence is committed

in a state of mental disorder or impairment or a punishable

offence is committed in a state of unconsciousness which

follows from a self-inflicted intoxication, or in a state of

momentary reduction of the consciousness, or by a person with

an underdeveloped or impaired mental capacity, and there is a

danger that the offender, due to this state of mind, again

will commit such an offence, the court may decide that the

prosecuting authority, as a security measure, must

a. assign him or refuse him a particular residence

b. place him under surveillance by the police or

a person appointed for this purpose and order

him to report to the police or the appointed

person at certain hours

c. forbid him to take intoxicating articles

d. place him in secure private care

e. place him in a psychiatric hospital, health resort,

nursing home or security ward

f. keep him in preventive detention."

Preventive measures are not regarded as punishment, but as

extraordinary means necessary to protect society from psychologically

abnormal recidivists. Preventive measures may be used (instead of

punishment) against insane offenders or those who suffered a temporary

lapse from consciousness, but also (in addition to punishment)

against certain other groups, inter alia persons (like the

applicant) with underdeveloped or permanently impaired mental

capacity. In any case, the person concerned must have committed an

offence, and it is also a general condition that there be a danger

that, because of his condition, he will repeat such an act.

It is for the court to decide whether the conditions for

preventive measures are fulfilled and, if need be, to authorise the

use of the measures listed in para. 1 a-f (the first alternatives

being the least far-reaching). The decision may be taken as part of a

criminal case, or as a separate case, but at any rate in accordance

with the general provisions of Act No. 25 of 22 May 1981 relating to

criminal procedure (Straffeprosessloven). Under Section 248 of that

Act, a court of examining and summary jurisdiction ("forhørsretten"),

applying a simplified procedure, may not decide on cases concerning

preventive detention.

If the court authorises the use of preventive measures, it

shall fix a maximum period beyond which the measures cannot be

upheld without its consent (Section 39 para. 4 second subparagraph

of the Penal Code). In practice, the courts are very seldom asked for

a prolongation of the stipulated period. The person concerned will

therefore usually be released before the time-limit expires, or at

that time.

The implementation of and choice between preventive measures

lies with the prosecuting authority. However, once that decision has

been taken, it is for the Ministry of Justice to terminate, resume or

alter the measures (Section 39 para 4 second subparagraph of the Penal

Code). The measures shall be terminated when they are no longer

regarded as necessary, but may be resumed if there is reason to do so

(Section 39 para. 3 first subparagraph).

The competence of the Ministry of Justice is further regulated

by the regulations of 1 December 1961 concerning the implementation

of preventive measures. According to Section 11 the question of

whether to terminate or alter the kind of measures imposed shall be

considered regularly by the Ministry of Justice, and at least once a

year. A report from a medical specialist shall usually be obtained

before a decision is made with regard to changing preventive

measures (Section 39 para 4 third subparagraph of the Penal Code).

The Ministry will also consider the question of terminating or

changing the measures when requested by the person concerned. In

practice, the appropriateness of preventive detention in a particular

case may be considered several times a year. If a person is subjected

to such detention, a medical report will be included in his records.

The decision made by the Ministry is subject to appeal to

the King in Council. The appeal must be submitted within three weeks

from the date on which the party concerned was notified of the decision,

cf. Section 29 of the Public Administration Act of 10 February 1967

(Forvaltningsloven). It follows from Section 27 of the Act that the

person concerned shall be informed of the administrative decisions and

from Section 12 of the Act it follows that he has the right to the

assistance of a lawyer.

If the person subjected to preventive measures does not accept

the decision of the King in Council, he may bring his case before the

courts. The courts may examine the administrative decision according

to the general unwritten constitutional principles of judicial supremacy.

II. Act No. 2 of 28 April 1961 relating to mental health protection

(Lov om psykisk helsevern) regulates the conditions for hospitalisation

in mental hospitals. Insane persons, i.e. psychotic persons or persons

suffering from certain serious malfunctions bordering on the

psychotic, may be committed to a mental hospital without their consent.

They may be detained as long as they are considered to be "insane" and

in need of treatment e.g. to prevent injury to themselves or to other

persons. Hospitalisation without the person's consent may be ordered

at the request of his closest relatives, of his guardian or of a

public authority (Section 5).

Other persons may, when certain conditions are fulfilled, be

kept in a mental hospital without their consent for a maximum period

of three weeks (Section 3).

In both cases, the superintendent of the hospital must agree

to receive the person. This is also the case where the transfer of a

person is requested by the Ministry of Justice in order to implement

preventive detention in mental hospitals.

Even if a person is sentenced to preventive detention, he

cannot be detained in a mental hospital against his own will unless he

qualifies as "insane" within the meaning of the Mental Health Care Act.

III. Chapter 33 of the Code of Civil Procedure of 13 August 1915

(tvistemålsloven) relates to review of administrative decisions

concerning deprivation of liberty and other enforcement measures and

applies to persons who are compulsorily committed to mental hospitals

regardless of whether they are subjected to preventive measures or

not. Chapter 33 only applies when this is explicitly stated in

statutory provisions. It follows from Section 9 A of the Mental

Health Care Act that a decision of the Board of Inspection

(kontrollkommisjonen) to commit a person to hospital or to refuse to

discharge him may be brought before the courts. The courts may

control every aspect of the administrative discretion, including

matters of pure expediency. Having recourse to psychiatric experts,

the courts will decide whether the conditions for compulsory committal

to hospital under Section 5 of the Mental Health Care Act are

fulfilled, in particular whether the person concerned is suffering

from a serious mental illness. Chapter 33 applies to a person

subjected to preventive measures under Section 39 para. 1 e of the

Penal Code when he is compulsorily committed to a mental hospital in

accordance with Section 5 of the Mental Health Care Act. It is not

applicable, however, to a person arguing that a decision of the

Ministry of Justice to impose preventive measures under Section 39

para. 1 f of the Penal Code (preventive detention) is invalid.

COMPLAINTS

The applicant has been in prison more or less constantly since

1978, most of the time not serving an actual prison sentence but in

preventive detention under Section 39 para. 1 f of the Penal Code.

During his period of detention he has been in solitary confinement for

very long periods of time and by judgment of 12 January 1985 the

Norwegian Supreme Court has authorised the authorities to keep the

applicant detained until 1990, if necessary. This treatment, the

applicant alleges, is inhuman or degrading and thus in conflict with

Article 3 of the Convention. The judgment itself might not be

contrary to the Convention, but the treatment or rather the lack of

treatment is. During the long periods of detention the authorities

did not establish adequate remedies in order to help the applicant.

His case did not fit any ordinary social programme and, as indicated

again and again, he did not belong in a prison either. However, the

result was that he spent an intolerable period of time in solitary

confinement.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 May 1985 and registered

on 16 August 1985.

On 8 January 1986 the respondent Government were requested,

pursuant to Rule 40 para. 2, sub-para. a of the Commission's Rules of

Procedure, to submit certain information as to the facts of the case.

This information was submitted by the Government on 7 March

1986 and the applicant's comments in reply were submitted on 6 June

1986. The Commission decided on 13 October 1986 to invite the

respondent Government to submit before 9 January 1987 written

observations on the admissibility and merits of the above complaint.

Furthermore, the respondent Government were requested to explain

whether the applicant, when detained by administrative decision under

Section 39 of the Penal Code, could rely on an appropriate procedure

allowing a court to determine the lawfulness of this measure as

guaranteed by Article 5 para. 4 of the Convention.

On 8 January 1987 the respondent Government requested and were

granted an extension of the time-limit until 9 February 1987.

The Government's observations were submitted on 16 February

1987. The applicant's observations in reply were submitted on 31

March 1987.

Legal aid under the Addendum to the Commission's Rules of

Procedure was granted to the applicant on 13 March 1987.

On 7 October 1987 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.

At the hearing, which was held on 7 March 1988, the parties

were represented as follows:

The Government

Mr. Erik MØSE, lawyer, Attorney General's Office, agent.

Mr. Robert W. KNUDSEN, Minister-Counsellor, Ministry of Foreign Affairs,

co-agent.

Ms. Kari MELING, Head of Division, Ministry of Justice, adviser.

Ms. Mette WALAAS, First Counsellor, Directorate of Health, adviser.

Mr. Roger ØSTBØL, Counsellor, Ministry of Social Affairs, adviser.

Mr. Carsten HELGEBY, Head of Division, Ministry of Foreign Affairs,

adviser.

The applicant

Mr. Knut ROGNLIEN, lawyer, applicant's representative.

Mr. Øyvind SOLBERG, assisting lawyer.

Following the hearing the Commission decided to adjourn the

examination of the application, as far as it concerned the issue under

Article 5 para. 4 of the Convention, and declared the remainder of the

application inadmissible. It was furthermore decided to obtain from

the parties further observations on the issue under Article 5 para. 4

of the Convention.

The Government's further observations were submitted on 7 April

1988 and the applicant's further observations were submitted on 8 April

1988.SUBMISSIONS OF THE PARTIES regarding Article 5 para. 4 of the Convention.

The Government

The Government observe that the decision to authorise

preventive detention is taken by a court. The judgment is subject

to appeal to the Court of Appeal and the Supreme Court.

The prosecuting authority has the initial competence to

implement preventive measures in accordance with the judgment.

Subsequently, the question of whether to terminate, alter or resume

the measures is considered by the Ministry of Justice at least once a

year. Its decision is subject to appeal to the King in Council. The

person concerned shall be informed of the administrative decisions and

has the right to be assisted by counsel. The administrative decision

may be brought before the courts. The judgment of the court of first

instance may be reviewed by the Court of Appeal and the Supreme Court.

According to the case-law under Article 5 para. 4, a person of

unsound mind compulsorily confined in a psychiatric institution for an

indefinite or lengthy period is in principle entitled, at any rate

where there is no automatic periodic review of a judicial character,

to take proceedings at reasonable intervals before a court to put in

issue the "lawfulness" - within the meaning of the Convention - of his

detention, cf. inter alia Eur. Court H.R., Winterwerp judgment

of 24 October 1979, Series A No. 33.

It is clear that the applicant must be considered to be a

person of "unsound mind" within the meaning of Article 5 para. 1 e,

and that he is deprived of his liberty as a consequence of this fact.

The principle of periodic judicial review embodied in Article 5

para. 4 is therefore applicable in the present case.

The Norwegian system of preventive detention is in conformity