CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mars 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                                     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 th