Lexploria

PARTIAL

AS TO THE ADMISSIBILITY OF

Application No. 11701/85

by E.

against Norway

The European Commission of Human Rights sitting in private

on 7 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H. DANELIUS

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER 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 N° 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 and 16 February 1987, and

the information and observations submitted in reply by the applicant on

6 June 1986 and 31 March 1987 as well as the submissions of the parties

at the hearing held on 7 March 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 17 December 1979 the Director of Ila wrote the following

to the Ministry of Justice:

"In my opinion this case is a typical example of how hopeless

a case can become when the Health Authority (helsevesenet)

disclaim the responsibility for a human being who obviously is

a psychiatric case and unfit for placement in a prison. Here

at Ila there is absolutely nothing we can do for him and it

begins to become quite unjustifiable to keep him detained here.

During the period of time (the applicant) has been here he has

been one of our most difficult prisoners and the development in

this regard has not been favourable. On several occasions

he has hit the prison officers and in particular he has been

aggressive towards the young officers. Due to this he has been

placed in our solitary confinement ward (G ward) for long periods

of time and we also had to place him in a security cell ....... .

Despite his threatening and aggressive behaviour we have

granted him a number of leaves of absence. The first

such leaves worked well but at the end of April of this year

he had to be taken back to Ila due to threats and aggression

against the staff of the institution "Skottun" at Skien

where he had been placed since 24 April until further

notice.

On 8 August this year he was again granted leave of absence

(with assigned residence at his parents' home at Kragerø).

At the end of this leave he refused to return to (Ila) and

was not brought back until 16 August, by the police. After

this we have not found it appropriate to grant further

leaves for the time being.

What should we then do with him? A suggestion of protective

surveillance at the institution "Skottun" failed due to (the

applicant's) own behaviour, as mentioned above. For a long

time the so-called ISO project under the employment service

has now worked with the possibility of a transfer to the

district prison of Oslo, work in a protected workshop and

possible admission to Ullevål hospital. This project has

now been pending for approximately 6 months and still we

receive promises that the project 'will be ready within 4

weeks'. The first four week period ended, however, two

months ago and it has still not been finished. We did not

even receive an announced written orientation. If this

project works, it is fine, but I think it is more realistic

to base oneself on the fact that it does not.

Since (the applicant) obviously should not be here any

longer and since all rehabilitation projects either cannot

be carried out or fail because of (the applicant) himself I

see no other solution than to impose protective surveillance

in accordance with Section 39 para. 1 a, b and c with

placement at his parents' home at Kragerø. Admittedly the

parents are not very well prepared for this but the

applicant is completely unable to manage his own affairs and

his parents' home is nevertheless his home - he does not

have any other place. I do not have any special reason to

believe that this will work well, but on the other hand it

is not appropriate either with continued detention here. I

therefore recommend that the Ministry of Justice replace the

e detention at Ila by protective surveillance under (Section

39 para. 1) a, b and c.

Furthermore, I refer to the fact that (the applicant) was

sentenced to 60 days' imprisonment for the offences he

committed whereas he has now spent almost 1 1/2 years in

a closed prison, in other words, there is an extreme

disproportionality between the actual prison sentence and

the preventive detention in a closed institution.

Finally, I would maintain that (the applicant) is under the

responsibility of the Health Authorities and I therefore

recommend that the Ministry of Justice contact the

Directorate of Health in order to solve his possible

placement in a suitable psychiatric institution."

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 16 September 1981 the Director of Ila wrote to the Ministry

of Justice inter alia:

"I ... ask for the assistance of the Ministry of Justice in

the attempt to have this kind of patients transferred to

the psychiatric health care. There can be no doubt that ...

(the applicant) ... is in need of a treatment which is

based on something different from voluntary injections and

the use of security cells.

The prison warders - who, by the way, do an excellent job -

do not have the necessary training enabling them to handle

these patients. Their situation becomes accordingly more

onerous in that it is a psychic strain to treat a fellow

human being in this way."

At the applicant's request and due to the above letter the

Ministry of Justice considered his situation again and wrote in its

reply of 4 December 1981 inter alia:

"According to the information obtained concerning the

applicant ... it appears that nothing can be done from

here concerning his transfer to an adequate place of

treatment under the psychiatric health care system

unless the situation develops and he becomes psychotic."

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. As regards his stay at this prison the

following appears from a letter of 25 October 1982 from the deputy

director of the prison to the Ministry of Justice:

"During the most recent period of time it could be

established that (the applicant's) situation in the prison

has become worse and worse. Repeatedly it has been tried to

give him work, inter alia outside in the yard, but all

attempts have failed after a relatively short period of time

due to his threatening behaviour against staff and inmates.

Work in the cell has been tried but he has shown little

interest in this and he has now for a longer period remained

in his cell inactive. The applicant's aggressive reactions

have become more frequent lately. This has probably a

certain connection with his forthcoming trial and his

expressed fear for a new conviction including preventive

detention.

The prison officers have shown great patience towards (the

applicant) but they have indicated that the work situation

in the ward where he is placed becomes more and more

difficult since his aggressiveness is, in particular,

directed against the staff of the ward. He has been moved

from ward to ward within the prison, but these possibilities

now also appear to be exhausted.

Ever since the applicant was transferred from Ila to the

district prison of Oslo there has been a frequent contact

with Telemark Mental Hospital in order to transfer him there

if possible. However, apparently there does not appear to

be any possibility for such a transfer within the near

future.

In the light of the above it is considered of decisive

importance for (the applicant) if he could, in all

circumstances, receive a change of environment, a 'change of

air'.

The question of what could be done in the near future in

(the applicant's) case was discussed at a meeting of the

prison administration on 22 October 1982 and it was

considered that a transfer to Ullersmo National Penitentiary

for the time being would appear to be the best solution.

Subsequently the acting director was contacted and informed

of this.

For these reasons it is recommended that a decision be taken

as soon as possible as to the transfer to Ullersmo for

continued detention there in accordance with Section 39

para. 1 of the Penal Code."

The applicant 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. 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 actually

concerns the question whether the authorisation to impose

the preventive measures appealed against should replace the

authorisation given by the District Court of Asker and Bærum

on 18 March 1983. With reference to this judgment the

prosecution can, until 18 November 1988, impose protective

measures under Section 39 para. 1 a, b, c, d and e except

preventive detention.

I consider it beyond doubt that the scope of the preventive

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 preventive measures against an

offender of such distinct danger. Considerations for the

protection of society entail in my view that the authorities

should be able to impose preventive 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 a decision

of a Norwegian court concerning the authorisation to use

preventive measures - in a case like the present one - could

violate (Article 3) of the Council of Europe Convention. It

is for the implementing authorities to ensure that the

preventive measure is given a practical frame which on top

of ensuring the interest of society also tries to promote

the interests of (the applicant) including his need for

psychiatric treatment.

I shall not refrain from pointing out that the implementation

of solitary confinement in this case is related to a large

extent to (the applicant's) own behaviour during the

preventive detention. In certain cases the prison

authorities had to impose solitary confinement due to

offences committed against prison staff.

During the appeal proceedings no material was submitted

which could illustrate how the solitary confinement was

carried out in (the applicant's) case, to what extent this

led to a limitation of the contact with prison staff,

contact with the outside world etc. The arguments of the

defence counsel in this respect were not adjusted to the

views which underlie the Commission's decisions when

considering the lack of compliance with Article 3 of the

European Convention. I would not refrain from pointing out

that counsel maintained that there was no reason to

criticise the individual decisions concerning the solitary

confinement of (the applicant).

Hereafter I do not consider it doubtful that according to

applicable law here it may be justified to impose preventive

measures in their full scope in a case like the present one.

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 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 arrangement which can take into

account the legitimate interests of both (the applicant) and

society."

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. 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, and there, in a

closed ward, with long periods in solitary confinement,

despite the fact that the court at that time pointed out that

imprisonment probably would have negative effects on his

development. He was, however, considered as so dangerous that

imprisonment nevertheless was used as a preventive 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 remains in prison, and in a

closed ward, more precisely at Ila National Penal and Preventive

Detention Institution. Of a preventive detention period of

approximately 8 years (the applicant) has spent 5 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 for which he has now been found guilty, and

which led to 3/4 years'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 3 times a week and consideration is given to

the possibility of extending this to 4 days.

The Court has the impression that (the applicant) actually is

friendly and would like to be friendly to his fellow man. He

also appears to be intelligent and thinks remarkably logically.

Nevertheless it is clear that he is sensitive and aggressive

and easily relies on acts of violence against the persons he

thinks hurt him. Furthermore, the Court considers it possible

to establish that he has a strong need to be accepted again

and again as equal to others. This the Court does not find

strange but it leads to an inclination to 'test' his

surroundings. In this way he himself increases the risk of

being subjected to what he considers hurts him. Experience

shows that this inclination is particularly strong towards

his closest surroundings and in particular towards the

prison officers, whom he considers as representatives of a

system which hurts him and deprives him of the possibility

of having a human existence instead of giving him the help

he needs and has a legal right to get after the accident

which occurred when he was seventeen. The Court finds that

it can furthermore be established that (the applicant) is of

the opinion that those who hurt him in any way must be

'dealt with in a tough manner' before they will stop. This

is an opinion which the Court - in accordance with what has

previously been said about (the applicant's) state of mind -

hardly can explain as anything else than a product of the

experiences a human being can get in a prison when he

arrives there as a young person and stays there for years.

This opinion of course increases his inclination to become

aggressive.

The Court is of the opinion that (the applicant) has been

badly treated; more precisely that he is the victim of

shortcomings and deficiencies in our mental health care. He

who does not fulfil the requirements of being 'seriously

mentally deranged' has no possibility of being treated in a

psychiatric hospital if the chief physician is opposed to

it, even if he is dangerous to himself and others and

definitely needs treatment. If judgment has been pronounced

which includes preventive detention in a prison he risks to

be plaaced there even if this affects him in a considerable

and destructive manner. This is the situation in which (the

applicant) is placed. In connection with the Supreme

Court's examination of his previous case he received a

well-founded hope of treatment against his psychic

deficiencies in a hospital, but this hope has not yet,

almost two years later, materialised because the county of

Telemark, due to budgetary reasons, has postponed the

necessary expansion of Faret hospital - an expansion which

probably is required of the county under the Act on Mental

Health Care. Instead he has been kept in a prison, despite

the remarks made in the judgment of the Supreme Court.

The prison authorities have obviously done their best in

order to limit the damage and the prison officers appear to

have an understanding of the problems, but they lack the

qualifications to be able to solve them - something that the

officers, who have appeared as witnesses, have pointed out

and indeed regret. 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) now receives 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 it

- in showing understanding for (the applicant's) problems and

making the sentence conditional - 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."

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 is now there under

daily supervision of two social workers from the Telemark Mental

Hospital which is responsible for his social training.

As regards the applicant's stays in prison the following

summary has been submitted (interruptions during each period

because the applicant stayed in a mental hospital or under

protective supervision are not indicated):

a. 4 July 1978 to 4 February 1980 at Ila:

13 periods in ordinary wards;

19 periods in solitary confinement wards, altogether 262 days;

12 periods in a security cell, altogether 50 days.

b. 29 July 1980 to 16 February 1982 at Ila:

3 periods in ordinary wards;

3 periods in solitary confinement wards, altogether 215 days;

2 periods in a security cell, altogether 31 days.

c. 16 February to 4 November 1982 in Oslo District Prison:

1 period in a security cell (2 days);

the rest of the period in ordinary wards.

d. 4 November 1982 to 18 November 1983 at Ullersmo:

1 period in ordinary wards;

3 periods in solitary confinement wards, altogether nearly

1 year

2 periods in a security cell, altogether 8 days.

e. 26 January 1984 to 7 November 1985 at Ila:

8 periods in ordinary wards;

14 periods in solitary confinement wards, altogether 463 days;

4 periods in a security cell, altogether 20 days.

f. 7 November 1985 to 8 February 1988 at Ullersmo:

Solitary confinement wards, altogether 490 days;

3 periods in a security cell, 7 days.

The conditions in the different prisons have varied from time

to time. As regards his latest stay from 7 November 1985 to

8 February 1988 at Ullersmo the following appears from a letter of

18 November 1986 from the deputy director of the prison:

"The cell (the applicant) occupies in Ward V measures 3 by 2.05

meters........ . There is no toilet in the cell.

Theoretically the prisoners in the ward remain in the cells 23

hours a day. In practice this is, however, not the case. And

especially with regard to (the applicant), he has a completely

different arrangement from the others.

He gets up before 07.00 hours and is locked out of the room at

07.00 hours. He makes his own coffee and contrary to what is

the case of the other prisoners he walks around freely in the

ward until 08.45 hours. His habits from a chronological point

of view are quite fixed, and he is then locked up in his cell

until 12.00 hours. Then he gets lunch which he preferably

eats in connection with the one hour he spends outdoors every

day. Around one o'clock he returns from the exercise yard, he

makes coffee before he is again locked up in the cell.

Usually he then remains there until 16.00 hours. After dinner

which he has in the cell he remains there until 17.30 hours.

Then he is let out in order to make coffee again. Precisely

at 17.55 hours he returns to the cell in order to watch the

news on television. He then remains in the cell and usually

he is not let out again.

He gets, however, a shower when he wants it and the same is

the case with toilet visits. In addition he is outside on

several occasions if he calls and asks for it.

He is in good contact with the staff of the ward and of the

health and social ward. Regarding the inmates he is in almost

daily contact with the "ganggutten". Otherwise it happens

from time to time that he is placed with one of the others in

the ward.

He is not followed by prison officers of the ward but walks

around freely when he is not locked up. The prison officers

are now and then in his cell to talk with him. They play

cards with him approximately twice a week.

Unlike the other prisoners of the ward (the applicant) may

participate in the common arrangements in the assembly room.

That is, for example, church service, in which he participates

every Sunday. Among the fixed arrangements he can also

participate in the usual get together of the Pentecostal

community on Monday evenings. On Sundays he is also present

for coffee after the church service.

He has also been offered the opportunity to participate in

weekly training and jogging in the prison exercise yard

together with the inmates of the M ward. He previously

participated in this during summer and autumn when the

weather conditions were good. The daily exercise is not

affected by this common arrangement.

(The applicant) is permitted to visit the local area every

Wednesday from 11.00 to 14.00 hours. He visits a school in

Oslo on Mondays from 09.00 to 17.15 hours and he can go to

Oslo each Friday from 09.00 to 20.15 hours.

In addition he is allowed approximately once every three

months to go home several days. He gets a maximum of 18

such days of leave per year."

The applicant has submitted that the above is correct insofar

as it relates to the stay at Ullersmo at that time. However, he has

maintained that in other situations, in particular during the 118 days

he was placed in a security cell, he has spent 23 hours each day in

his cell, the remaining hour being spent in the exercise yard. He was

not allowed to associate with or speak to other prisoners. He was

allowed to receive visitors two hours a week in a special visit room,

but since his family lives in Kragerø, 200 km away, he seldom had

visitors - three times during 1985. His social contact was therefore

with persons of authority. Through the window of his cell he could

see the sky, a grey wall 100m away and a part of the exercise yard

covered by a net. The cell door was closed and impossible to look

through. The furniture in the cell consisted of a bed, a chair, a

table, a wardrobe, a washstand with a mirror and an open lavatory. He

was allowed to have his own radio and TV-set in the cell. He could

read newspapers and borrow magazines and books from the prison

library. He ate each meal in his cell. When he was let out of his

cell he was accompanied by one or two prison officers.

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).

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. According to the general unwritten constitutional principles

of judicial supremacy, the courts may decide whether the administrative

decision is in conformity with the relevant legal provisions (and the

authorisation given by the initial judgment) and based on a correct

assessment of the facts. The purely discretionary parts of the

decision are not subject to judicial review. The courts may, however,

set aside a decision which appears to be the result of abuse of power,

or is found to be arbitrary or clearly unreasonable.

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 sent 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.

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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 Protection

Act.

III. The present procedural and material conditions for solitary

confinement are set out in the Prison Regulations, chapters 35 and 53.

Section 53-4 para. 2, as amended in 1985, provides that:

"Total, or nearly total exclusion from association with other

inmates shall be imposed when necessary to:

a. prevent injury to persons,

b. prevent appreciable damage to property,

c. prevent other punishable acts,

d. reduce a particular risk of escape,

e. prevent serious disturbance caused by the social contact

between the inmates."

As a rule, the decision to move inmates to solitary

confinement shall be taken by the Prison Governor, cf. Section 53-5.

If the decision is taken by somebody else, the Prison Governor shall

be informed as soon as possible. The inmate shall be informed,

usually in writing, of the decision before transfer or shortly

afterwards. The notification shall contain the reasons and refer to

the inmate's right of appeal to the Ministry of Justice, cf. Section

53-5. If segretation under Section 53-4 para. 2 lasts for more than

14 days, the Ministry of Justice shall be given an account of why

further segregation is necessary, how often the inmate has been looked

after by a doctor, and the doctor's conclusion as regards the state of

his health, cf. Section 53-8.

Solitary confinement for short periods (in practice normally

20 days as a maximum) may also be imposed as a disciplinary measure,

cf. Section 35-2 d, but only by the Prison Governor. Before such a

decision is taken, the inmate and other persons affected shall as a

rule have the opportunity to explain the matter, cf. Section 35-4.

Their explanations shall be recorded in writing. The decision to impose

solitary confinement shall be in writing and contain information about

the inmate's right of appeal to the Ministry of Justice, cf. Section 35-9.

The use of security cells is regulated in Regulations No. 6

of 22 April 1960 concerning Coercive Means and Weapons in Institutions

under the Prison Administration. According to Section 5, security

cells may only be used if necessary to prevent injury to persons,

serious damage to property, or serious disturbance of the security of

the institution.

As a rule, an order to use a security cell shall only be given

when the Prison Governor has consented, and at any rate he shall be

informed of the decision as soon as possible, cf. Section 11. The

prison doctor shall normally be consulted in advance, and in any case

be informed of the decision as soon as possible, cf. Section 12.

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Inmates shall not be held in a security cell any longer than

absolutely necessary. A decision to use a security cell is also

subject to appeal to the Ministry of Justice, and the appeal will

usually have suspensive effect.

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 application.

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.

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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, The 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.

SUBMISSIONS OF THE PARTIES

The Government

As to Article 3 of the Convention

The important question in the present case is whether the

treatment of the applicant constitutes a violation of Article 3 of the

Convention. The applicant seems to raise two main issues in this

respect: the question of (further) segregation and of lack of treatment.

Segregation in institutions

The Government would like to emphasise that the present case

does not relate to total social and sensory isolation, and that the

term "solitary confinement" is also somewhat misleading.

According to established case-law under the Convention, the

segregation of prisoners from the prison community does not in itself

constitute a form of inhuman or degrading treatment. Removal from

association with other prisoners for security, disciplinary or

protective reasons is not normally regarded as inhuman treatment or

punishment. In assessing whether such a measure may fall within the

scope of Article 3 in a given case, regard must be had to the

particular conditions, the stringency of the measure, its duration,

the objective pursued and its effects on the person concerned. The

Commission and the Court have consistently held that only treatment

attaining a certain level of severity falls within the scope of this

provision (cf. e.g. Eur. Court H.R., Ireland v. United Kingdom

judgment of 18 January 1978, Series A No. 25).

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The conditions and the stringency of the measures may have

varied during the relevant periods. A survey showing the measures

taken and their duration is set out on p. 12-13 of THE FACTS, above.

The applicant's periods (almost 16 months) in ordinary wards

together with other inmates do not raise any issue in relation to the

aspect of segregation under Article 3.

The stringency of the measures has varied. The most recent

conditions at Ullersmo where the applicant stayed until 8 February 1988

were liberal.

His cell was in a solitary confinement ward, but he could

leave the cell several times every day to make coffee and to go to the

toilet, and he could have a shower whenever he wanted to. The

applicant had one hour of exercise in open air every day. He was not

accompanied by a prison officer when he left his cell, but could walk

around freely in the ward. He had contact with other inmates, and

attended social arrangements in the assembly room. The applicant also

had regular contact with the prison officers, who had conversations

with him in his cell several times a day and played cards with him

approximately twice a week. He had a radio and a television in his

cell, and could borrow books and magazines in the library. His right

to correspond and to use the telephone was not restricted.

The applicant could receive visits and he was permitted to

leave the prison several days a week. As from 11 December 1985, he

was granted leave on a regular basis to visit Kløfta, which is near

Ullersmo, for short periods. Since January 1986, he was also

permitted to visit Oslo one day a week, and since 18 September 1986 he

was granted leave to go to school in Oslo. Furthermore, he was

permitted to visit his parents at Kragerø occasionally. In 1986 he

visited his family five times for a total of 30 days.

The above description illustrates that the applicant was

subjected to a very liberal regime at Ullersmo, which should be

characterised as a form of partial removal from association with

other prisoners.

In the periods of detention several exceptions were made to

the general regulations concerning solitary confinement. For instance,

he could walk around more freely and be outside his cell more than the

regulations prescribed. During some periods he had a television set

in his cell. He was also in frequent contact with prison officers,

who visited him several times every day. By means of a communication

system he could get in contact with the staff when he wanted to. In

conformity with the regulations, he had one hour of exercise in open

air every day. Moreover, the applicant could receive visits from his

family and from his counsel. His right to correspond was not

restricted, and he was given the same opportunity to use the telephone

as other inmates. He could borrow books and magazines from the

library, he had his own newspaper and he often attended arrangements,

which took place at least once a week, together with the other inmates

at the institution.

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Several attempts were made to move the applicant to ordinary

wards with other inmates, but he almost always had to return to the

solitary confinement ward or a security cell after a while because of

incidents involving threats and violence.

As regards the applicant's three periods at Ila, he was

granted leave five times (17 days), seven times (approximately 26

days) and 26 times (for periods up to one day) respectively. During

the last period he was also permitted to visit his parents at Kragerø.

In addition the applicant was outside the prison a number of

times together with prison officers, particularly during his stay at

Ullersmo. Sometimes he was at Kløfta up to three times a week

accompanied by prison officers.

When the applicant stayed at Oslo District Prison, he was

granted leave 5 times (altogether 17 days).

During the applicant's first period at Ullersmo, he was

permitted to leave the institution to stay for four days at Kragerø.

The use of a security cell was ordered only in extreme cases

as a consequence of the applicant's violent behaviour and was always

in conformity with the relevant regulations. This means that he was

not in the security cell any longer than absolutely necessary, and

that he was frequently visited by a doctor and approximately every

hour, day and night, by the staff. Every day he spent one hour in

open air.

The objective of the segregation was in the case of the

applicant clearly legitimate. The grounds for confinement were his

own unruly behaviour. A number of times he threatened, attacked and

tried to hit prison officers. The periods in solitary confinement

wards or in a security cell were imposed out of fear of further

assaults and to prevent serious harm. Consequently, the decisions

were made for specific reasons and based on experience. Repeated

attempts to keep the applicant in ordinary community wards have failed

after a short period, only causing growing fear among other inmates

and the staff.

The effects on the applicant of the measures taken are

difficult to establish with certainty. He has been unruly since early

childhood, and these tendencies became more pronounced following the

traffic accident. The applicant belongs to a small, heterogeneous

category of persons who may need different kinds of treatment. Some

of them are kept in prison institutions, others in mental hospitals.

Even given the nature of this category, the applicant has been

particularly difficult to handle. He is very aggressive and lacks

self-control. Consequently, the slightest "provocation" may lead to

assaults on other persons.

For several years the applicant was subjected to treatment in

mental hospitals. It is very difficult to say whether the later

periods of segregation have had any adverse effects on his mental or

physical health.

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The opinions of medical experts are divided. According to some

doctors, his health may deteriorate as a consequence of segregation.

On the other hand, other doctors take the view that his condition has

remained unchanged since 1978. In the medical-legal report of 1982,

it was concluded that the applicant had by and large shown small signs

of change since the report of 1978. The medical-legal report of 1984

also concludes that his personality and character had changed little

over the last few years, apart from a tendency to increased emotional

liability and reduced tolerance and control of impulses.

The Government find no medical evidence that the segregation

has had any adverse effects on the applicant's physical and mental

health.

Taking into account all the particular circumstances of the

case, the Government consider that the segregation to which

the applicant has been subjected has not attained a sufficient level

of severity to raise an issue under Article 3.

Lack of treatment

The applicant also alleges that the lack of treatment offered

to him constitutes a breach of Article 3.

When considering the treatment of the applicant, his

psychiatric diagnosis should be borne in mind. The applicant has four

times, in 1966, 1978, 1982 and 1984, been submitted to psychiatric

examinations. In the first medical-legal report it was held that the

applicant was psychotic, whereas the three other reports have

concluded that he has an underdeveloped or impaired mental capacity, but

that he is not "insane" within the meaning of the Penal Code or the

Mental Health Act.

In a letter of 12 February 1986 from one of the psychiatrists,

who has had the applicant for observation, it is stated:

"As a result of the brain injury, the personality deviation

(of the applicant) has become more pronounced, leading to a

considerable degree of psychological instability, a greatly

reduced threshold of tolerance accompanied by lack of ability

to control impulses, lack of self-control and lack of ability

to understand the consequences of his behaviour."

In fact, the applicant represents a difficult dilemma for the

authorities: On the one hand he needs treatment and social training,

on the other hand an attempt must be made to prevent new incidents of

violence to other people. A number of incidents, only a small number

of which have been brought before the courts, illustrate his

dangerousness. The applicant often gets violently aggressive when he

feels that other people are afraid of him. Three of the medical-legal

reports have concluded that there is a considerable danger that he

will, because of his condition, commit new offences.

As regards medical supervision within the institutions, it

should be noted that the health staff at Ila comprise one

psychiatrist and one psychologist in addition to regular doctors,

nurses and social welfare officers. At Ullersmo, the health service

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is by and large the same, but the psychiatrist is present only one day

a week. In both institutions the inmates are free to consult the

health staff whenever they want to.

Special attention is paid to persons who are segregated from

the community in the institutions e.g. because it is necessary to

prevent them from doing harm to persons or committing other punishable

acts. In accordance with Section 53-7 of the Prison Regulations, they

shall be looked after by a doctor at least once a week. If the health

of the inmate so requires, medical treatment shall be given as soon as

possible, and consideration shall be given to modifying his

situation. Consequently, the applicant has been under medical

supervision at least once a week.

Social training is also considered to be a very important

element in the treatment of the applicant. Special programmes of

activity have been worked out to give him as careful treatment as

possible. One example is the programme which was set up at Ila with

effect from 5 November 1984:

- Monday, Wednesday and Friday 10 - 11 a.m.: Exercise with

prison welfare officer or someone appointed by him;

- Tuesday and Thursday 7.30 a.m. to lunch: Work in the prison;

- Tuesday and Thursday after lunch: On leave in Oslo, accompanied

by a prison officer;

- Monday after lunch: Conversation with chief officer;

- Monday at 4 p.m.: Bridge.

The programme was temporarily discontinued after only one week

due to the applicant's behaviour. It was, however, resumed after a

while, and continued with some interruptions until 30 December 1985,

when the applicant injured a prison officer.

It should be noted that the prison officers spent a lot of

time with the applicant. Moreover, his situation was under more or

less permanent consideration by the competent authorities.

Reference is also made to the general description of the

conditions at Ila and Ullersmo. In particular, a system whereby the

applicant is frequently permitted to leave the institutions is clearly

an indispensable part of his social training.

The authorities have also made other efforts to improve the

applicant's situation inside prison. Several attempts have been

directed at the permanent transfer of the applicant to ordinary prison

wards within the prison system. He has therefore been repeatedly

transferred to wards with other inmates, but every time he has had to

be returned to the solitary confinement ward or a security cell after

a while because of his behaviour. In some ways, ordinary association

with other inmates represents a too liberal arrangement for him, an

arrangement for which he does not have enough self-control, giving him

a feeling of defeat.

The attempts to place the applicant in ordinary prison wards

resulted in frequent transfers. As already mentioned, his stays in

the ordinary wards were brief, and ended with his transfer to a

security cell or a solitary confinement ward. These changes obviously

caused problems as regards establishing regular programmes for him.

The applicant's present situation, where he has been assigned

residence in a house in the town of Skien under daily supervision of

two social workers from the Telemark Mental Hospital, enables him to

cope with his situation and means a more stable and regular life for

him.

The applicant's claim that there has been a lack of treatment

should also be seen in the light of the number of times he has

actually stayed in psychiatric institutions.

During the first periods in prison or at Ila, the efforts to

improve the applicant's conditions were primarily directed at

transferring him to a mental hospital or placing him under protective

supervision in Kragerø or Skien. Between July 1978 and January 1985,

the applicant was transferred four times to Telemark Mental Hospital,

and four times to Skien and Kragerø under protective supervision.

These attempts all failed because of the applicant's lack of self-

control. Because of his explosive aggressiveness, he is extremely

difficult to handle, even for very qualified staff.

Furthermore, the applicant stayed alternately at Telemark

hospital and Reitgjerdet hospital from 1966 to 1977. In between he

was at home for short periods, but they all ended because of his

aggressive behaviour. These periods in psychiatric hospitals before

he was subjected to preventive measures illustrate that psychiatric

treatment will not necessarily solve his problem. In 1978 Telemark

Mental Hospital stated that there was no reason to believe that the

applicant's problems could be solved by psychiatric treatment. It

should also be noted in this context that the applicant's condition

has by and large remained unchanged since 1978.

In the Government's opinion it cannot reasonably be argued

that Article 3 has been violated because of lack of treatment in the

present case. As regards purely medical care and treatment, the

applicant has been looked after by fully competent psychiatrists and

psychologists. As far as social training is concerned, special

arrangements have been worked out under liberal conditions, and he is

at present more in contact with the community than he has been for

many years.

Bearing in mind the minimum level of severity that must be

attained under Article 3, the Government conclude that there has been

no inhuman or degrading treatment in the present case.

As to Article 5 para. 4 of the Convention

The Government have also been requested to explain whether the

applicant, when detained by administrative decision under Section 39

of the Penal Code, can 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.

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

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

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.

The applicant has not availed himself of this opportunity.

Nevertheless, the courts have assessed the necessity of preventive

detention in connection with judgments authorising preventive measures

in 1967, 1978, 1980, 1983, 1984 (District Court) and 1985 (Supreme Court).

Consequently, it is the opinion of the Government that the

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

fulfilled.

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, cf. Eur. Court H.R., van Droogenbroeck

judgment of 24 June 1982, Series A No. 50.

As a rule, the Norwegian courts have competence to consider

all aspects in cases concerning the validity of administrative

decisions. They may consider the lawfulness of the decision. This

implies an investigation of whether the requirements of substantive

and procedural legal provisions are complied with. Furthermore, a

decision to implement preventive measures must be within the

authorisation given in the initial judgment.

The courts will also ascertain that the administrative

decision is based on a correct assessment of the facts. If, for

example, one of the yearly decisions concerning the use of preventive

measures were to be taken notwithstanding the fact that the person is

no longer of unsound mind, the decision would be invalid. The court

would reach the same conclusion if the Ministry were to overlook

important circumstances concerning the person concerned, for example

that he had made extraordinary progress during the past year and that

there is no longer any reason to believe that he is dangerous. These

two conditions, that the person is of unsound mind and that he must be

regarded as dangerous, are two of the three conditions that must be

fulfilled in order to impose preventive measures under Section 39 of

the Penal Code. (The third condition - that the convicted person

is found guilty of having committed an offence - is res judicata as

a consequence of the first judgment.)

On the other hand, the competence of the courts is limited in

relation to the discretion given to the decision-making body.

Consequently, in a case concerning the implementation of preventive

measures, the administrative authorities will have the exclusive

competence to decide on the expediency of the various solutions at

issue within the framework of the legal provisions and the

authorisation given by the first judgment. As long as there are

reasonable grounds to choose e.g. the use of preventive detention

under Section 39, and this is one of the measures authorised by a

court, an administrative decision to this effect cannot be set aside

by the courts.

This limitation - which would seem to be in full conformity

with the case-law established by the Commission and the Court - is

primarily based on the presumption that the administration is more

qualified to decide upon these matters than the courts. The control

of the expediency of the decision is considered to be safeguarded by

administrative review.

As mentioned above the courts have competence to set aside

decisions concerning the implementation of preventive measures because

of abuse of power. 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 because it is clearly

unreasonable in relation to the person concerned, for example if the

Ministry decides to impose preventive measures which are obviously

much more stringent than necessary.

It follows from this description of the legal situation that

the Norwegian system is in accordance with the requirements under

Article 5 para. 4. A person of unsound mind who is subjected to

preventive detention is entitled to take proceedings before the

courts at least once a year. The judicial review is wide enough to

bear on those conditions which are essential for his lawful

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

there is no violation of Article 5 para. 4 in the present case.

The applicant

As to Article 3 of the Convention

The Government emphasise that this case does not relate to

total social isolation. It is correct that the isolation of the

applicant is no longer total and that his present situation is a

considerable improvement over his previous prolonged detention in

different prisons. But this is mainly a result of the fact that this

application was lodged with the Commission. It is therefore requested

that the Commission looks into the several years of isolation of the

applicant before the case was introduced and whether this isolation

was in conflict with Article 3.

Even if the applicant's situation has improved, he has a

legitimate interest in a decision as to whether the isolation while in

prison was in conflict with the Convention, to prevent the risk of a

similar isolation in the future. Moreover, this isolation was

originally what the case was about. The Government cannot prevent

that this question is pushed to extremes, by reducing the isolation in

a way that only just avoids a breach of Article 3, while the case is

being dealt with by the Commission. It is maintained that the

isolation of the applicant on the whole was in conflict with Article

3. Especially the duration of the isolation, the damage it caused the

applicant, and the fact that an alternative treatment was attainable

if sufficient resources had been made available, are elements which

lead to the concluion that the applicant has been the victim of

inhuman or degrading treatment or punishment.

The applicant stayed almost permanently in different prisons

from 1978 to 1987, sentenced for minor violence and threats. During

this period of time he was placed in three main categories of cells.

The first category is the ordinary cell with furniture in an open ward

together with other prisoners. The second category is the ordinary

cell with furniture in a closed ward without any contact with other

prisoners (solitary confinement) and in which the applicant stayed

for altogether 5 years and 7 months. The third category is the

security cell where the applicant stayed for altogether 118 days and

nights. Three of these stays lasted for approximately two weeks each.

The main question in this case is whether the applicant's long

solitary confinement, including the periods spent in a security cell,

amounts to inhuman or degrading treatment or punishment within the

meaning of Article 3 of the Convention.

There may be different opinions on the question as to what

effect the solitary confinement had on the applicant. However, there

is no doubt that the applicant became psychotic due to this. Further,

there is no doubt that the applicant balanced on the edge of a

psychosis when in prison. He has been a borderline patient. It is

quite probable that the solitary confinement was the factor which

provoked a psychosis. Since he is so vulnerable, the authorities

should have an extra responsibility to avoid provoking a psychosis.

The applicant's case has been before the courts several

times since 1978. Every time the question arose as to whether the

court should authorise the use of preventive detention. All parties

agreed that preventive detention was not adequate but for lack of

other alternatives it was found necessary. The courts each time

concluded that a long period of preventive detention could harm the

applicant and make it more difficult to bring him back to normal life

in society and should therefore be avoided. The facts of this case,

however, show another result.

This should be seen in the light of the fact that it was

possible to give the applicant an alternative and adequate treatment.

The applicant's present situation shows that alternatives to detention

in a prison were indeed available.

The Norwegian authorities have admittedly made efforts to

provide an alternative arrangement to detention of the applicant.

However, although the work and efforts of the individual authorities

have been remarkable, these arrangements have all been unrealistic.

The authorities have not been willing to find the necessary resources,

which is the main problem together with the fact that no single

institution had a responsibility for taking care of the applicant.

The question is not whether the prison and the health

authorities have done enough, or whether they can be criticised. The

long-lasting isolation of the applicant could be considered inhuman

or degrading irrespective of whether any individual or any single

institution can be criticised. It is rather a question of a

weakness of the system that allows this kind of treatment to occur.

The system lacks adequate remedial actions to meet the needs of the

applicant. This may be due to lack of resources, inefficient central

organisation, or other conditions. But this is irrelevant regarding

Article 3, which does not allow any such reasons as exception.

Article 3 is meant to protect individuals. It is not a kind

of penal code and the Government or others will not be charged. The

Commission is only meant to consider whether the treatment the

applicant received is in conflict with Article 3, but should not

consider what could have been or should have been done differently for

the applicant. It is sufficient for the Commission to establish that

it was possible to treat the applicant. The previous attempts of

therapies were not successful because adequate resources were not

available.

When looked upon from this angle the present case differs to

such an extent from the Commission's previous case-law concerning

solitary confinement of prisoners that it could not possibly be

considered as being manifestly ill-founded within the meaning of

Article 27 para. 2 of the Convention.

As to Article 5 para. 4 of the Convention

The Government mention that the applicant once a year 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 to control are, however, quite limited. If the

Ministry of Justice makes a decision about the detention of the applicant,

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

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. In

this case the alternative therapies require great resources which the

administration has not been willing to make available.

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 followed 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.

Finally as an important aspect in connection with Article 3 it

should be pointed out that Norway has no laws against long-lasting

detention which may be considered as torture, inhuman or degrading

treatment or punishment. The lawfulness of such a long detention

could therefore not be tested in a court on this ground.

THE LAW

1. The applicant has complained that his conditions of detention

and treatment in prison from 1978 to 1988 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 Commission recalls in the first place the interpretation

of the concept of inhuman or degrading treatment by both the Commission

and the European Court of Human Rights. The Commission has held in the

Greek case (Comm. Report 5.11.69, Yearbook 12 p. 186) and the case of

Ireland v. the United Kingdom (Comm. Report 25.1.76, Eur. Court H.R.,

Series B No. 23-I, p. 388) that :

- the notion of inhuman treatment covers at least such

treatment as deliberately causes severe suffering, mental or physical;

- treatment of an individual may be said to be degrading if it

grossly humiliates him before others or drives him to act against his

own will or conscience.

However, as underlined by the European Court of Human Rights

in the case of Ireland v. the United Kingdom

"ill-treatment must attain a minimum level of severity if it

is to fall within the scope of Article 3 (Art. 3) . The assessment

of this minimum is, in the nature of things, relative; it

depends on all the circumstances of the case, such as the

duration of the treatment, its physical or mental effects

and, in some cases, the sex, age and state of health of the

victim, etc." (Eur. Court H.R., judgment of 18 January 1978,

Series A No. 25, p. 65, para. 162).

The further elements in Article 3 (Art. 3), namely inhuman and

degrading punishment, have been considered by the Court in the Tyrer

case (Eur. Court H.R., Tyrer judgment of 25 April 1978, Series A No.

26). The Court stated that "for a punishment to be 'degrading' and in

breach of Article 3 (Art. 3), the humiliation or debasement involved

must attain a particular level." (at p. 10, para. 30). Once more the

assessment is relative, depending on all the circumstances of the case

and, in particular, on the nature and context of the punishment itself

and the manner and method of its execution. The Court further

considered that "the suffering occasioned must attain a particular

level before a punishment can be classified as 'inhuman' within the

meaning of Article 3" (Art. 3).

Under Article 3 (Art. 3) , the Commission has previously been

confronted with a number of cases of prison conditions, including

isolation of varying duration and severity (cf. inter alia No.

6038/73, Dec. 11.7.73, Collection 44 p. 115; No. 7854/77, Dec.

12.7.78, D.R. 12 p. 185; No. 8317/78, Dec. 15.5.80, D.R. 20 p. 44).

It has stated on several occasions that prolonged solitary confinement

is undesirable, especially where the person is detained on remand.

It has on other occasions stated that complete sensory

isolation, coupled with total social isolation, can destroy the

personality and constitutes a form of treatment which cannot be

justified by the requirements of security or for any other reason.

It has moreover drawn a distinction between this and removal from

association with other prisoners for security, disciplinary or

protective reasons, and would not normally consider that this form of

segregation from the prison community amounts to inhuman treatment or

punishment (cf. No. 5310/71, Ireland v. the United Kingdom, Comm. Rep.

25.1.76, p. 379; Nos. 7572/76, 7586/76 and 7587/76, Dec. 8.7.78, D.R.

14 p. 64 and No. 8317/78 mentioned above).

In making an assessment in the present case, it follows that

regard must be had to the surrounding circumstances including the

particular conditions, the stringency of the measure, its duration,

the objective pursued and its effects on the person concerned (cf.

also No. 8463/78, Dec. 16.12.82, D.R. 26 p. 24).

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,

authorised 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 premises 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 lead

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.

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. The Commission has considered the question whether the

applicant, when detained by administrative decisions under Section 39

of the Penal Code, could rely on an appropriate procedure allowing a

court to determine the lawfulness of this measure as required by

Article 5 para. 4 (Art. 5-4) of the Convention which reads:

"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."

The respondent Government have submitted that the decision to

authorise preventive detention is taken by a court. This decision is

subject to appeal. Furthermore, when the preventive measure has been

implemented in accordance with the judgment, the question of whether

to terminate, alter or resume the measure is considered by the

Ministry of Justice at least once a year either automatically or at

the request of the person concerned. The Ministry's decision is

subject to appeal to the King in Council whose decision may be brought

before the courts. The courts have the competence to consider all

aspects of the case including the lawfulness of the decision as well

as the question whether it is based on a correct assessment of the

facts and whether the enforcement of the preventive measure could be

considered as an abuse of power. Certain discretionary aspects of a

case are not subject to judicial review.

The applicant maintains that the courts' possibilities of

controlling the administrative decisions are quite limited. There is

in his view no way in which the courts can examine the decision as to

which therapy would be best for the applicant and there is actually

nothing the courts can do but repeat their urgent requests to avoid

detaining the applicant in a prison.

In these circumstances the Commission considers that it is not

sufficiently informed to decide on this particular complaint and finds

it necessary to obtain from the parties further observations on the

admissibility in this respect.

For these reasons, the Commission

ADJOURNS the examination of the application as far as it

concerns the issue under Article 5 para. 4 (Art. 5-4) of the

Convention,

Declares the remainder of the application INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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E. v. NORWAY

E. v. NORWAY

LEXI