DISSENTING OPINION OF MR. H.G. SCHERMERS

      Though I agree with much of the Commission's Report, I do not

share the final conclusion that Article 5 of the Convention has been

violated. Section 171, last sentence of the Norwegian Code of Criminal

Procedure may be interpreted as being concerned with a possible

discharge from detention of persons representing a danger to society.

In the Winterwerp judgment the Court accepted that in emergency cases

there may be exceptions to the rule that an individual should not be

deprived of his liberty unless he has been reliably shown to be of

unsound mind (Eur. Court H.R., Winterwerp judgment of 24 October 1979,

Series A no. 33, p. 18, para. 39). It cannot be inferred from the

Winterwerp judgment that the objective medical expertise must in all

conceivable cases be obtained before, rather than after, confinement

of a person on the ground of being of unsound mind. Where a provision

of domestic law is designed, amongst other things, to authorise

emergency confinement of persons capable of presenting a danger to

others, it would be impracticable to require thorough medical

examination prior to any arrest or detention (cf. also Eur. Court H.R.,

X v. the United Kingdom, Series A no. 46, p. 18-19, para. 41).

      It is true that the Norwegian authorities should have taken their

decisions earlier. It cannot be true, however, that a really dangerous

mental patient must be released whenever procedural mistakes have been

made. Article 2 of the Convention obliges the Government to protect the

life of all citizens. Whether the applicant was so dangerous that his

release would threaten the lives of others is a question of fact to be

decided by the national courts. The task of the Strasbourg institutions

is to verify whether these courts acted fairly and reasonably when so

deciding.

      In my opinion a detention on remand pursuant to section 171, last

sentence of the Code of Criminal Procedure, pending the outcome of a

request for the prolongation of the authorisation to use security

measures, is not incompatible with Article 5 para. 1 of the Convention.

The applicant is a man with a history of mental problems. He suffered

serious brain damage in 1965 following which he showed a distinct

tendency to become aggressive. Since 1967 he has been convicted on

numerous occasions of offences involving threats, assault and bodily

harm and no particular improvement in his state of mental health has

been found over the years. During the period when security measures

were authorised the applicant's stays outside institutions were made

conditional upon his being subject to strict surveillance and medical

supervision but all attempts nevertheless failed due to his aggressive

behaviour.

      Regard must also be had to the specific system of detention. In

situations like the present it may only be implemented when it is a

question of extending the maximum period for using security measures

and in addition - as here - when necessary to protect the public. In

such circumstances the interest of the public may prevail over the

applicant's right to liberty to the extent of justifying an emergency

confinement in the absence of the usual guarantees implied in

paragraph 1 e of Article 5. On the facts of the present case, I think

the Norwegian courts had sufficient reason for considering that the

applicant's imminent liberty without any form of supervision

constituted, in view of his mental deficiencies, a danger to the

public. Accordingly, his detention beyond 25 February 1990 until

15 May 1990 was effected in accordance with Article 5 para. 1 e of the

Convention.