Lexploria

PARTIAL

AS TO THE ADMISSIBILITY OF

Application No. 17391/90

by S.E.

against Norway

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 September 1990

by S.E. against Norway and registered on 5 November 1990 under file No.

17391/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Norwegian citizen born in 1948. He resides at

K. Before the Commission he is represented by Mr. Knut Rognlien, a

lawyer practising in Oslo.

A. The particular facts of the case

The applicant's previous application (no. 11701/85) was finally

determined by the European Court of Human Rights in its judgment of

29 August 1990 (Series A no. 181-A). The present case is related to the

previous case in that it also concerns the doubts about the applicant's

mental capacity and the conflicts which arise out of this.

The Commission recalls from the applicant's previous application

that he was involved, in 1965, in a traffic accident which caused

serious brain damage. This subsequently led to a distinct tendency to

become aggressive. The applicant was described as a person with an

underdeveloped and permanently impaired mental capacity (mangelfult

utviklede og varig svekkede sjelsevner) and was on numerous occasions

in conflict with the law and convicted because of his aggressiveness.

As from 1978 the applicant spent years in various prisons under a

system of preventive detention. On 12 January 1985 the Supreme Court

(Høyesterett) upheld a judgment of the District Court of Kragerø of

20 September 1984 and furthermore authorised the implementation of

security measures under Section 39 of the Penal Code until

25 February 1990. Under this authorisation the applicant, inter alia,

spent several years in solitary confinement, in particular due to his

aggressive behaviour.

In its decision on admissibility of 7 March 1988 the Commission

found that the circumstances of the applicant's detention did not, in

the light of his distinct dangerousness, the stringency of the measures

when compared with the objective pursued and the effects on the

applicant, attain the level of seriousness which would make the

detention inhuman or degrading within the meaning of Article 3 of the

Convention.

The Commission recalls that when the above decision was taken the

applicant's situation had just changed. With effect from

8 February 1988 the Ministry of Justice decided, pursuant to

Section 39, subsection 1 (a) to (c), of the Penal Code, that the

applicant should no longer stay at Ullersmo National Penitentiary

(Ullersmo), and he 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 the Telemark Central Hospital which was responsible

for his social training.

On 19 April 1988, i.e. subsequent to the Commission's decision

on admissibility, the applicant assaulted the social workers

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

to protect the physical integrity of others and also 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, subsection 1 (a) to (c), by detention in

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

applicant was thus transferred to Arendal District Prison in

accordance with Section 39, subsection 1 (f), of the Penal Code.

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, subsection 1 (a) to (c). Consequently,

with effect from 19 May 1988, the applicant was transferred from

Arendal District Prison to the house in Skien where he was again placed

under supervision of the two social workers.

Following several incidents of aggressive behaviour by 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, subsection 1 (a) to (c). As the applicant

was accused of several criminal offences he was placed in detention on

remand.

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 the Ila National Penal and

Preventive Detention Institution (Ila) in accordance with Section 39,

subsection 1 (e), of the Penal Code.

On 21 October 1988 the Ministry of Justice decided that the

applicant should again be subjected to preventive supervision under

Section 39, subsection 1 (a) to (c), of the Penal Code and he was taken

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 again at Ila in accordance with

Section 39, subsection 1 (e), of the Penal Code.

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 remained, however, detained at

Ila under Section 39, subsection 1 (e), of the Penal Code in accordance

with the Supreme Court authorisation of 1985 to implement security

measures.

On 11 January 1990 the prison authorities of Ila submitted a

report to the State Prosecutor concerning the applicant. Having regard

to the fact that the Supreme Court authorisation of 12 January 1985 to

use preventive measures would expire on 25 February 1990 the report

recommended that security measures under Section 39 of the Penal Code

be prolonged. On 2 February 1990 the State Prosecutor accordingly

submitted a request to the District Court of Kragerø for permission to

prolong by three years the period during which preventive measures

under Section 39 of the Penal Code could be used.

On 7 February 1990 the Chief of Police requested the District

Court to detain the applicant on remand for a period of four weeks in

order to obtain a medical opinion to be used during the forthcoming

hearing concerning the question of further authorisation to use

preventive measures. It was noted that the previous authorisation would

expire on 25 February 1990.

On 12 February 1990 the District Court considered the question

of detention on remand. The applicant maintained that a detention on

remand after 25 February 1990 would be illegal, and that such detention

would mean that he would be punished for the same offences twice. He

furthermore alleged that the only reason why the authorities requested

his detention on remand was because they had failed to proceed with the

case although they had known for five years when the authorisation

would expire.

In its decision of 12 February 1990 to detain the applicant on

remand for a period of four weeks beyond 25 February 1990 the District

Court stated:

(translation)

"In accordance with Norwegian law the prosecuting authority

shall consider and, where appropriate, determine the

question of prolonging the period during which preventive

measures can be used, regardless of the fact that the

person in question has not committed new criminal offences,

cf. Section 39, subsection 3, of the Penal Code.

...

In addition Section 171, subsection 2 in fine, of the Code

of Criminal Procedure [straffeprosessloven] authorises the

use of detention on remand in cases were there is a need

for such detention before a new decision on preventive

measures can be taken. The requirements are that continuing

use of preventive measures is the most likely outcome of

the case and that one of the specific detention

requirements of Section 171, subsection 1, is fulfilled. In

this case it is the requirement no. 3 in Section 171,

subsection 1, which is relevant - the risk of new criminal

offences which carry more than 6 months' imprisonment.

...

The preventive measure issues cannot be examined before

25 February 1990. This is due to the fact that a necessary

expert opinion will not be ready before then.

...

The Court finds that there is reason to follow the

prosecutor's request, cf. [the above-mentioned provisions

of the Code of Criminal Procedure].

In the opinion of the Court it is very likely that [the

applicant] - if released in two weeks - will commit

criminal offences such as threats (Section 227 of the Penal

Code) and assault (Section 228). He has without doubt

strong character deviations, little tolerance and easily

threatens people's life and health, and also attacks them.

Today he rejects any form of supervision proposals. The

Court refers in its evaluation first of all to what has

happened earlier. In the Supreme Court's decision of 1985

there is a thorough account until that time. Since 1985 he

has been convicted twice for violations of Sections 227

and 228. The psychiatrist H must be understood as also

considering that [the applicant] due to his weak impulse

control and impaired capacity to control himself, will find

himself in situations where he reacts with verbal threats

if he is released and that things will - despite his good

intentions - go wrong.

Furthermore, it is likely that the case will end with the

use of preventive measures against [the applicant] - for

one or more years and with one or more of the measures

mentioned in Section 39, subsection 1 (a) to (f), of the

Penal Code. It suffices here to refer to the fact that the

Ila prison authorities recommend this and to the fact that

the psychiatrist H has drawn up a new plan for preventive

measures.

In the present circumstances the Court cannot see that the

detention is a disproportionate step. [The applicant's]

case is sad and tragic. The Court cannot consider only what

is in his interest but must also consider the risk of the

applicant exposing others to fear and danger. As far as the

Court can see from the documents now, it appears that the

outcome will be the taking of preventive measures to be

implemented in Skien which should work better than the last

programme and which will secure him a much better life than

during the last 14 months."

The applicant appealed against this decision to the Agder High

Court (Agder Lagmannsrett). On 23 February 1990 the High Court upheld

the decision of the lower court and added:

(translation)

"It is clear that according to Norwegian law it has been

assumed until now that it is possible to prolong the period

of detention even if the person concerned has not committed

any crimes during that period. The High Court does not find

that such an arrangement violates Article 4 of

Protocol No. 7 to the Convention concerning a new

conviction of a crime for which he has already been

convicted. The requirement in law that the Court shall fix

a maximum period for preventive detention is based on, for

example, considerations in respect of the convicted person

-to secure that he will have a judicial review after a

certain period of time of the necessity of the continuation

of preventive measures.

...

The High Court has no doubt that there is a very obvious

risk that [the applicant] will commit new criminal offences

if he is released at the end of the period of preventive

detention without the prison or the prosecuting authorities

having any control over him ... In order to prevent new

acts of violence it is necessary that he is taken care of

also after the preventive detention period has expired.

Accordingly, there is a need for detention on remand and a

very probable possibility for an authorisation of further

preventive measures.

...

The High Court notes that detention on remand does not

appear to be a disproportionate measure. Considerations for

the protection of society must have priority over [the

applicant's] interest in being released.

The fact that the request for detention on remand of

9 February 1990 ... is based on the ground that time is

needed in order to obtain an additional expert opinion is,

in the opinion of the High Court, of no relevance to the

question of detention. The hearing concerning the question

of continuing preventive measures cannot be held before an

opinion has been submitted also by another expert in

psychiatry ... Until the hearing can be held it is

necessary to take care of [the applicant] due to the danger

of repetition.

The High Court understands the hopelessness expressed by

[the applicant's] counsel concerning the fact that a

programme for [the applicant] has still not been made.

However, it cannot be maintained that detention on remand -

having regard to the circumstances of the case - even

considering the treatment [the applicant] has previously

received, would amount to a violation of Article 3 of the

Convention."

The applicant appealed against this decision to the Supreme

Court. On 16 March 1990 the Supreme Court rejected the appeal. In its

decision the Court stated:

(translation)

"In accordance with Section 39, subsection 3, second

sentence, [of the Penal Code] the Court must in cases of

preventive detention fix a maximum period beyond which no

measures can be taken without the Court's permission. A

decision concerning the prolongation of the preventive

detention does not mean that the convict is convicted or

punished again for those offences which constituted the

basis for the judgment allowing the use of preventive

measures. That these offences constitute the basis for

using preventive measures has already been decided through

this judgment. What is relevant for the question whether

the use of preventive measures should be prolonged beyond

the initial maximum period fixed is an evaluation of the

other circumstances which provide reasons for using

preventive measures, the convict's mental capacity and the

risk of further criminal offences being committed. That the

period of preventive measures may be prolonged, if there is

reason to do so after such an evaluation, follows from the

judgment allowing the use of preventive measures read in

conjunction with Section 39, subsection 3, second sentence.

It follows from this that the High Court has not based its

decision on an incorrect interpretation of Article 4

para. 1 of Protocol No. 7 to the Convention when it has

assumed that a prolongation of the period of preventive

measures in accordance with Section 39, subsection 3,

second sentence, of the Penal Code is not contrary to the

Convention provision.

The Court does not find either that the High Court's

decision is based on an incorrect interpretation of

Articles 3 or 6 of the Convention."

The applicant accordingly remained at Ila, in detention on

remand, after the Supreme Court's authorisation of 12 January 1985

expired on 25 February 1990. The detention on remand was on

20 March 1990 prolonged until 25 April 1990 by the District Court. The

decision was upheld by the High Court on 30 March 1990, and by the

Supreme Court on 19 April 1990. The detention was prolonged again on

20 April 1990 until 21 May 1990. On 14 May 1990, however, the

Prosecutor General withdrew the request for a prolongation of the

period during which preventive measures could be used against the

applicant. He was accordingly released on 15 May 1990.

Subsequent to his release the applicant soon experienced

difficulties in adapting to the norms of society and he was arrested

again, apparently in December 1990, and charged with new violations of

Sections 227 and 228 of the Penal Code (threats and assaults). By

judgment of 13 February 1991 he was convicted and sentenced to

7 months' imprisonment and the prosecuting authorities were authorised

to use preventive measures under Section 39, subsection 1 (a) to (f),

of the Penal Code for a maximum period of three years. This judgment

was upheld by the Supreme Court on 1 November 1991 with the amendment

that only the measures under Section 39, subsection 1 (a) to (b) and

(d) to (f), could be imposed.

In the meantime, on 8 July 1991, the applicant had again been

convicted and sentenced to 90 days' imprisonment by the District Court

for new offences similar to those mentioned above. In connection with

the last two judgments the applicant spent a total of four months in

prison. Since mid-July 1991 the applicant has been in freedom and has

not been charged with any offences. The authorities have apparently not

made use of the authorisation to use preventive measures.

B. Relevant domestic law

Section 39 of the Penal Code in its relevant parts reads as

follows:

(translation)

"Section 39

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

of insanity or unconsciousness or if a punishable act is

committed in a state of unconsciousness due to self-

inflicted intoxication, or in a state of temporarily

reduced consciousness, or by someone with an

underdeveloped or permanently impaired mental capacity, and

there is a danger that the offender, because of his

condition, will repeat such an act, the court may decide

that the prosecuting authority, as a security measure,

shall

a. assign or forbid him a particular place of residence,

b. place him under surveillance by the police or a

specially appointed probation officer and order him to

report to the police or the probation officer at designated

intervals,

c. forbid him to consume alcoholic beverages,

d. place him in secure private care,

e. place him in a mental hospital, sanatorium, nursing

home or security ward, where possible, in accordance with

the general provisions promulgated by the King,

f. keep him in preventive detention.

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

covered by Sections 148, 149, 152, subsection 2, 153,

subsections 1, 2 or 3, 154, 155, 159, 160, 161, 192 - 198,

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

subsection 1, 258, 266, 267, 268 or 292, the court shall

decide to apply such security measures as are mentioned

above.

3. These measures are terminated when they are no longer

regarded as necessary, but may be resumed if there is

reason to do so. The security measures listed under (a)-(d)

may be employed concurrently.

The court shall determine the maximum period for which

security measures may be imposed without its further

consent.

4. Unless the court has decided otherwise, the

prosecution may chose 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."

COMPLAINTS

The applicant submits that subsequent to the Commission's

decision on admissibility of 7 March 1988 concerning Article 3 of the

Convention he was detained under similar conditions, including solitary

confinement, for two more years, i.e. until 15 May 1990. He submits

that in the period from December 1988 until his release the conditions

were stricter since he received no leave of absence from Ila and the

authorities made fewer efforts to arrange alternatives. He considers

that the total period of confinement now amounts to a violation of

Article 3 of the Convention.

Under Article 5 of the Convention the applicant complains that

his detention from 25 February to 15 May 1990 did not fulfil any of the

conditions set out in this provision. The only reason for this

detention was a need to obtain an expert opinion, something which

should have happened much earlier, thereby avoiding the disputed period

of detention.

The applicant also complains, under Article 6 of the Convention,

of the fact that the report of 11 January 1990 from Ila contained

allegations of the applicant having threatened prison officers without

this being supported by any proof. He maintains that this influenced

the courts which decided on the question of prolonging the period of

preventive detention and thus deprived him of his right to a fair

hearing.

Finally, the applicant complains, under Article 4 para. 1 of

Protocol No. 7 to the Convention, that his detention from 25 February

to 15 May 1990 had no legal basis other than his conviction of

20 September 1984 by the Kragerø District Court as confirmed by the

Supreme Court on 12 January 1985. Accordingly, his detention was a new

punishment for offences of which he had already been finally convicted.

THE LAW

1. The applicant complains that his conditions of detention and

treatment in prison from 1978 to 1990 amounted to a breach of Article 3

(Art. 3) of the Convention which reads:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The applicant maintains that although the Commission previously

did not find that his detention raised issues under this provision the

additional detention now renders the treatment inhuman or degrading.

In its decision on admissibility of 7 March 1988 the Commission

examined the period of detention from 1978 to 1988. It stated as

follows:

"In this case, the Commission recalls that the applicant,

since 1978, has been convicted four times of violent acts

and has been sentenced to a total of 15 months'

imprisonment, not including a suspended sentence of 45

days' imprisonment. Over the years the applicant has on

several occasions been examined by medical experts who have

concluded that, although extremely aggressive, he is not

insane but should be regarded as a person with an

underdeveloped and impaired mental capacity.

In addition to the above mentioned prison sentences the

applicant has therefore been placed in preventive

detention, most recently by judgment of the Norwegian

Supreme Court on 12 January 1985. In accordance with these

authorisations under Section 39 of the Norwegian Penal

Code, the applicant has spent approximately eight years in

various prisons of which approximately five years have been

spent in solitary confinement wards including a total of

118 days in security cells.

As regards the use of solitary confinement and the

placement in security cells, the Commission notes that this

to a large extent was related to the applicant's own

behaviour. From the facts of this case it is clear that the

applicant has on many occasions attacked persons from

outside prison and prison staff. All of his convictions

since 1978 relate to assault and bodily harm and in these

circumstances the Commission finds that there is no reason

to criticise the decisions as such to place the applicant

in the solitary confinement wards.

As regards the form of isolation to which the applicant was

subjected, there is a certain divergence of views between

the parties due to the fact that the applicant's repeated

placement in solitary confinement wards concerns a

considerable period of time.

The Commission finds it established, however, that the

applicant had access - at any given time, except when

placed in security cells - to radio and, to a certain

extent, television. He could read newspapers and borrow

magazines and books from the prison library. One hour every

day was spent in the exercise yard and he had contact

several times a day with prison staff. It is furthermore

clear that, as regards his most recent stay at Ullersmo,

the applicant was subjected to a system quite different

from that of other prisoners in solitary confinement. In

particular, the prison authorities offered the applicant

the opportunity to participate in a number of common

arrangements and he could leave the prison premise on

Mondays, Wednesdays and Fridays. In addition, he was

allowed approximately once every three months to go home

for several days. In this respect the Commission has also

noted the applicant's submission that the efforts of the

prison authorities to help him have been remarkable.

The Commission furthermore recalls that the Norwegian

authorities showed concern for improving the applicant's

situation. The applicant was on several occasions released

from prison under protective surveillance. However, all

such attempts to release the applicant from prison

detention failed due to the applicant's own behaviour. He

was also transferred to different prisons so that he could

get a 'change of air'.

As regards treatment and supervision, the Commission

recalls that, according to the psychiatric examinations

carried out in 1978, 1982 and 1984, the applicant is

considered not to be insane but a person with an

underdeveloped and impaired mental capacity which leads to

a distinct tendency to become aggressive. As set out below

the Commission is not convinced that the applicant's

placement in prison was suitable to counteract this

aggressive tendency. However, the care and treatment which

the applicant received while in detention does not reveal

to the Commission any indications which could lead to the

conclusion that the applicant was not looked after as well

as prison conditions allowed. Further, as already mentioned

above, the prison authorities appear to have done what was

possible under their competence, including working out

programmes which could increase the applicant's contact

with the outside community.

The Commission has not overlooked the statements of the

Norwegian courts (cf. Supreme Court judgment of

12 January 1985 and most recently the District Court

judgment of 29 October 1986) from which it appears that the

applicant should have received treatment for his mental

deficiencies in a hospital rather than being placed in

preventive detention where he obviously could not receive

any such treatment. The Commission can only support these

views. Furthermore, the Commission has noted with concern

that the authorities, under the court authorisation given

to them, obviously failed for a regrettable period of time

to implement the measures appropriate to the applicant's

needs. Nevertheless, having regard to the case-law of the

Commission and the Court of Human Rights and to the

circumstances of the applicant's detention, in particular

in the light of his distinct dangerousness, the Commission

must conclude that the stringency of the measures, when

compared to the objective pursued and the effects on the

applicant, did not attain the level of seriousness which

would make the treatment inhuman or degrading within the

meaning of Article 3 (Art. 3) of the Convention."

The Commission recalls that subsequent to the above decision the

applicant was twice, in 1988, assigned residence at Skien under the

supervision of the Probation and Aftercare Service and two social

workers from the Telemark Central Hospital. On both occasions,

however,the programmes failed since the applicant assaulted the social

workers and provoked other incidents involving aggressive behaviour

which led to a conviction for violations of Sections 227 and 228 of the

Penal Code by the District Court of Kragerø on 11 January 1989.

In these circumstance the Commission maintains the view that the

applicant's detention related to his own behaviour, whereas the

authorities also after the Commission's previous decision on

admissibility tried to implement programmes which could improve his

difficult situation. The Commission does not find, therefore, that the

applicant's subsequent detention as such raises an issue under

Article 3 (Art. 3) of the Convention. Furthermore, the applicant has

not, in the Commission's opinion, submitted any substantiated evidence

which could lead to the conclusion that the care and treatment which

he received while in detention was insufficient or that he was not

looked after as well as the prison conditions allowed. The Commission

concludes, therefore, that even taking into consideration the periods

of preventive detention following its previous decision on

admissibility of 7 March 1988, this detention did not attain the level

of seriousness which would render the treatment inhuman or degrading

within the meaning of Article 3 (Art. 3) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. Under Article 5 (Art. 5) of the Convention the applicant

complains that his detention from 25 February to 15 May 1990 was

illegal and furthermore did not fulfil any of the conditions set out

in this provision.

The Commission considers that it is not sufficiently informed to

decide on this complaint and finds it necessary to obtain observations

from the parties in this respect. Accordingly, the examination of this

part of the application must be adjourned.

3. The applicant furthermore complains that he was deprived of a

fair trial in the proceedings concerning the question whether the

authorisation of the use of preventive measures should be prolonged.

He invokes in this respect Article 6 (Art. 6) of the Convention.

The Commission notes that these proceedings never involved a

hearing on the merits as the Prosecutor General withdrew the request

for a prolongation of the period during which preventive measures could

be implemented and the applicant was released. Furthermore, the

Commission recalls that Article 6 (Art. 6) only applies to proceedings

which involve the determination of either a civil right or obligation,

or a criminal charge. In the present case the report of 11 January 1990

to which the applicant refers, contained a summary, prepared by the

prison authorities, of his circumstances during his most recent stay

at Ila on the basis of which the competent authorities could consider

whether and to what extent it would be necessary to institute

proceedings in court in order to obtain a prolongation of the existing

authorisation to use preventive measures under Section 39 of the Penal

Code. The Commission finds that such proceedings do not involve a

determination of civil rights or obligations, or of a criminal charge

within the meaning of Article 6 (Art. 6) of the Convention. Accordingly

Article 6 (Art. 6) of the Convention is not applicable to these

proceedings.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4. Finally, the applicant complains that his detention from

25 February to 15 May 1990 had no legal basis other than his conviction

of 20 September 1984 by the Kragerø District Court as confirmed by the

Supreme Court on 12 January 1985. He maintains, therefore, that the

detention was a new punishment for offences of which he had already

been finally convicted. He invokes in this respect Article 4 para. 1

of Protocol No. 7 (P7-4-1) to the Convention which reads:

"No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same

State for an offence for which he has already been finally

acquitted or convicted in accordance with the law and penal

procedure of that State."

The Commission recalls that by judgment of the Supreme Court of

12 January 1985 the competent authorities were authorised to use

preventive measures against the applicant in accordance with Section 39

of the Penal Code until 25 February 1990. As explained by the High

Court and the Supreme Court in their decisions of 23 February and

16 March 1990 respectively, this did not mean that the applicant had

a right to be released after this date, but the maximum period set was

a safeguard to secure that he, as well as any other person subjected

to preventive measures, would have a certain judicial control of the

necessity of the continuation thereof. Furthermore, the Commission has

already found above that the detention from 25 February to 15 May 1990

was in accordance with Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention.

In these circumstances the Commission finds that the applicant

was "not punished again in criminal proceedings" within the meaning of

Article 4 para. 1 of Protocol No. 7 (P7-4-1) to the Convention. It

follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the application as far as

it concerns the applicant's complaint that he was detained from

25 February to 15 May 1990 contrary to Article 5 (Art. 5) of the

Convention, and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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E. v. NORWAY

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