THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a Norwegian citizen, born in 1925. He is at present

being held in preventive detention (sikring) in the Oslo Regional

Prison (kretsfengsel). When lodging his application he was assisted by

his former defence counsel Mr H., a lawyer practising in Oslo.

On .. November 1967, the applicant was sentenced by the Eidsivating

Regional Court (lagmannsrett) to two years and six month's imprisonment

for theft, fraud and other offenses. On appeal the Supreme Court

(Höyesterett) in a decision of .. February 1968, also authorised the

prosecution authorities "to institute security measures ... as provided

for in Article 39 (1) (a-f) of the Penal Code (straffeloven) for a

period not exceeding five years".

The relevant parts of Article 39 of the Code read as follows:

"1. If an otherwise punishable act is committed in a state of insanity

or unconsciousness, or if an offence is committed during

unconsciousness due to voluntary intoxication (Article 45) or during

temporarily reduced consciousness or by someone with underdeveloped or

permanently impaired mental capacity, and there is danger that the

perpetrator because of his condition will repeat such an act, the court

may decide that, for purposes of safety, the prosecution shall

(a)  assign or forbid him a certain place or residence;

(b)  place him under the supervision of 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 reliable, private care;

(e)  place him in a mental hospital, sanatorium, nursing home, or

workhouse, where possible, in accordance with general provisions

promulgated by the King;

(f)  keep him in custody.

2. If such condition involves danger of acts of the kind covered by

Articles 148, 149, 152 (2), 153 (1 to 3), 154, 155, 159, 160, 161,

192-198, 200, 206, 212, 217, 224, 225, 227, 230, 231, 233, 245 (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) to (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 measures 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 No. 1 above, are imposed, the

Ministry may decide to forgo all or part of the punishment to which a

transgressor might be sentenced.

...."

The applicant who had previously been held in custody

(varetektsfengsel), was transferred to a prison to serve his term on

8 June 1968. On 2 December 1968 the applicant was transferred from the

Botsfengslet prison where he was then being detained to the Ila

Security Institution (sikringsanstalt) in accordance with a decision

taken by the Prison Board (fengselsstyret) apparently on the ground

that there was lack of places in prison.

The applicant contends that he was forcibly transported to Ila. He

states that during the transport which was carried out by means of an

open car which went through the busiest streets of the city, he was

handcuffed and in leg-irons. He was only dressed in a night shirt and

his genitals were exposed.

The applicant subsequently complained to the Public Prosecutor

apparently without success. On 11 January 1969 he wrote again to the

Public Prosecutor to put on record that he had tried to satisfy the

conditions as to exhaustion of domestic remedies. In his second letter

he alleged that the transfer had taken place in an unnecessarily brutal

manner, and that, both mentally and physically, it could be

characterised by inhuman and degrading treatment. He also pointed out

that, as a direct result of the treatment he had received during the

transfer, he suffered from numbness in the instep of his foot and that

it was too early to say if this would be permanent. He called for a

court investigation. The applicant claims that, by May 1969 he had not

received any reply to his complaint.

The applicant also lodged a further complaint in which he claimed that

his transfer to the Ila Security Institution while he was still serving

his prison sentence was illegal. The Public Prosecutor stated on 12

October 1968 that the question of transfer from one institution to

another was a matter outside his jurisdiction, and the Attorney General

(Riksadvokaten) concurred in this opinion on 29 November 1968.

The applicant then requested in accordance with Article 481 of the Code

of Criminal Procedure (straffeprocessloven) a judicial decision as to

whether or not the Prison Board under Article 12 of the Prison Law

(fengselsloven) was permitted to transfer him to Ila to serve the

remainder of his sentence.

On .. January the City Court (forhörsrett) of Oslo held that there was

no "conflict" between the applicant and the prosecution within the

meaning of Article 481 of the Code of Criminal Procedure which could

be decided by the Court.

The applicant then appealed to the Eidsivating Regional Court which

stated in a decision of .. March 1969 that the applicant's request was

inadmissible on the ground indicted by the City Court.

On 2 May 1969 the applicant laid criminal charges against the prison

authorities in which he accused the officials concerned of having shown

gross negligence in the exercise of their duty by not respecting the

provisions of Article 14 of the Prison Law. This Article stipulates

that harmful consequences resulting from deprivation of liberty should

be avoided "so far as possible". On .. July 1969 the Public Prosecutor

decided, however, not to take any action in respect of his charges.

On 15 September 1969 the applicant submitted to the Oslo City Court an

application for a summons against the Prison Board and the Botsfengslet

Prison on the ground that his transfer from Botsfengslet to the Ila

Security Institution had involved a violation of Articles 12 and 14 of

the Prison Law. He asked for damages.

His application was, however, returned by the Court on 27 September

1969 since the defendants named by him could not be parties to a civil

action of the kind concerned. The applicant was informed that his

action should instead be brought against the State represented by the

Ministry of Justice. He was told that he would first have to deposit

a sum of 330 Crowns to cover the costs involved unless the Ministry had

granted him an exception from such costs.

The applicant then filed a summons application against the State. In

addition he instituted a private prosecution against the Director of

the Prison Board and the Governor of the Botsfengslet Prison for

illegal imprisonment and neglect of their duties. He also applied for

free legal aid.

On .. April  1970 the applicant was informed by the City Court that the

Ministry of Justice had rejected his application for free legal aid in

both cases.

The applicant maintains that he is unable to pursue the criminal case

as he cannot pay the security of 1,500 Crowns required. As regards the

civil action, he has approached an Oslo newspaper in order to find a

possibility to continue the proceedings but has not yet received any

reply.

It appears that the applicant has also lodged complaints with the

Parliamentary Commissioner (Stortingets ombudsman) without obtaining

any redress.

The applicant submits that under Article 39 of the Penal Code, the

court may sentence a convicted person to various security measures in

addition to the prison term fixed by the court. It is, however, not the

court itself but the Ministry of Justice after consultations with the

Attorney General which decides if a security measure should be used,

what kind of measure, and for which period within the maximum period

fixed by the court. The applicant alleges that the use of the security

measures constitutes a violation of Article 5 (1) (a) of the

Convention, since the use of them which may amount to a regular prison

term of five years has not been decided by a court but by an

administrative authority.

The applicant considers that this system under which the prosecution

may be authorised to use security measures is contrary to the

principles of the Convention because the measure which may result if

the prosecution authorities use their discretion is not a consequence

of a criminal act of which the accused has been found guilty. Instead

it is a safeguard to prevent him from committing possible future

breaches of the law. Apart from thus constituting punishment without

a definite crime, the system introduces an arbitrary element contrary

to the generally accepted principles of criminal law on which the

Convention is based.

The applicant contends that when in practice yet another administrative

authority, the Prison Board, is allowed to intervene actively in such

a way that even the prosecution authorities are deprived of their

authority, it is obvious that this fails to comply with Article 5 (1)

of the Convention.

In a letter of 5 June 1969 the applicant complained that he had been

refused permission to use a typewriter for his correspondence with the

Commission and the Norwegian authorities. He considered that this

amounted to interference with his right to petition. It appears,

however, from his subsequent letters of 6 September 1969 and 30 April

1970 that he has again been allowed the use of a typewriter.

THE LAW

Whereas, insofar as the applicant complains that he had to serve part

of his prison sentence at the Ila Security Institution, it is to be

observed that the Convention, under the terms of Article 1 (Art. 1)

guarantees only the rights and freedoms set forth in Section I of the

Convention; and whereas, under Article 25 (1) (Art. 25-1) of the

Convention only the alleged violation of one of those rights and

freedoms by a Contracting Party can be the subject of an application

presented by a person, non-governmental organisation or group of

individuals; whereas otherwise this examination is outside the

competence of the Commission ratione materiae;

Whereas no right for a convicted person to be detained in any

particular type of institution is as such included among the rights and

freedoms guaranteed by the Convention; whereas in this respect the

Commission refers to its decision of 10 July 1967 on the admissibility

of Application No. 2760/66, X. v. United Kingdom; whereas it follows

that this part of the application is incompatible with the provisions

of the Convention within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention;

Whereas the applicant also complains of the Supreme Court's judgment

of 3 February 1968 whereby in addition to the prison sentence imposed

on him, the Public Prosecutor was authorised to institute security

measures including, as in the present case, a period of preventive

detention, as provided for in Article 39 of the Penal Code;

Whereas, in particular, the applicant alleges that the application of

such security measures constitutes a violation of Article 5 (1)

(Art. 5-1) of the Convention, as it has not been decided by a court but

by an administrative authority;

Whereas Article 5, paragraph (1) (a) (Art. 5-1-a) of the Convention

permits "the lawful detention after conviction by a competent court";

Whereas it is clear that the Supreme Court, having found the provisions

of Article 39 of the Code to be applicable in the applicant's case,

authorised that the applicant should, for a maximum period of five

years, be taken into preventive detention or be made subject to such

other restrictions on his liberty as are provided for in the said

Article;

Whereas it is equally clear that the Public Prosecutor's subsequent

order that the applicant should be taken into preventive detention on

completion of his prison sentence was issued in accordance with the

decision of the Court expressly authorising such detention; whereas,

therefore, the applicant is being detained after conviction by a

competent court and in accordance with his sentence; whereas,

accordingly, his detention is "lawful" within the meaning of Article

5 (1) (a) (Art. 5-1-a) of the Convention;

Whereas, in this connection, the Commission has also had regard to its

previous jurisprudence according to which certain similar measures of

detention for reasons of public safety ordered by a court in addition

to a prison sentence or in lieu of such sentence have been found to be

consistent with the provisions of Article 5 (1) (a) (Art. 5-1-a), of

the Convention (see e.g. in regard to preventive detention,

"Sicherungsverwahrung" of recidivists in the Federal Republic of

Germany, the decision on the admissibility of application No. 99/55,

X. v. Federal Republic of Germany, Yearbook, Vol. I, p. 160 and in

regard to detention in a special detention centre, "saerlig

forvaringsanstalt", of persons with certain mental defects in Denmark,

the decision on Application No. 2518/65, X. v. Denmark, Yearbook, Vol.

VIII, p. 370);

Whereas, it follows that this part of the application is manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention;

Whereas, finally, insofar as the applicant complains of the manner in

which he was transported to the Ila Security Institution, it is to be

observed that, under Article 26 (Art. 26) of the Convention, the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law; whereas it appears from the applicant's statements

and documents that he had submitted in support of his application that,

apart from writing in general terms to the Public Prosecutor, he has

not raised any complaints in this respect before the competent courts

and authorities, in particular, as regards the foot injury which he

allegedly sustained during his transfer; whereas, therefore, he has

failed to show that he has exhausted the remedies available to him

under Norwegian law;

Whereas, moreover, an examination of the case as it has been submitted,

including an examination made ex officio, does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of international

law, from exhausting the domestic remedies at his disposal;

Whereas, therefore, the condition as to the exhaustion of domestic

remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3) of the

Convention has not been complied with by the applicant.

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE