CEDH · CASELAW;REPORTS;ENG — 16 mars 1989

.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 }  EUROPEAN COMMISSION OF HUMAN RIGHTS   Application No. 11701/85     E.   against   NORWAY   Report of the Commission   (adopted on 16 March 1989)   TABLE OF CONTENTS                                                                     page   I.       INTRODUCTION (paras. 1-22 ) ...........................      1           A.   The application             (paras. 2-4) ......................................      1           B.   The proceedings             (paras. 5-17 ) ....................................      1           C.   The present Report             (paras. 18-22) ....................................      2     II.      ESTABLISHMENT OF THE FACTS   (paras. 23-80) ............      4           A.   Particular circumstances of the case             (paras. 23-61) ....................................      4           B.   Relevant domestic law and practice             (paras. 62-80) ....................................     14               a.   Section 39 of the Penal Code ..................     14               b.   The Mental Health Act .........................     20               c.   The Code of Civil Procedure, Chapter 33 .......     28   III.     SUBMISSIONS OF THE PARTIES (paras. 81-120) ............     34           A.   The applicant             (paras. 81-95) ....................................     34           B.   The Government             (paras. 96-120) ...................................     36   IV.      OPINION OF THE COMMISSION (paras. 121-145) ............     41           A.   Point at issue             (para. 121) .......................................     41           B.   Article 5 para. 4 of the Convention             (paras. 122-145) ..................................     41     APPENDIX I:    History of the proceedings               before the Commission ...........................     46   APPENDIX II:   Decision on the admissibility               of the application ..............................     48   APPENDIX III: Partial decision on the admissibility               of the application ..............................     66   I.       INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant is a Norwegian citizen, born in 1948.   Before the Commission he was represented by Mr.   Knut Rognlien, a lawyer practising in Oslo.   3.       The application is directed against Norway and the respondent Government were represented by Mr.   Erik Møse of the Attorney General's office, as Agent.   4.       The applicant has been in prison or in another correctional facility almost constantly since 1978, most of the time not serving an actual prison sentence but in preventive detention (sikring), authorised by the Norwegian courts, implemented by the prosecuting authority and terminated, resumed or altered by the Ministry of Justice in accordance with the Norwegian Penal Code (straffeloven).   The application, as declared admissible, concerns the question whether the applicant, when detained by administrative decision under the Norwegian Penal Code, could 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.   B.       The proceedings   5.       The application was introduced on 13 May 1985 and registered on 16 August 1985.   6.       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 reply was submitted on 6 June 1986.   7.       On 13 October 1986 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to invite the respondent Government to submit before 9 January 1987 their observations in writing on the admissibility and merits of the above complaint as well as the applicant's complaint under Article 3 of the Convention concerning his treatment.   8.       Following an extension of the time-limit, the Government's observations were submitted on 16 February 1987.   The applicant's observations in reply were submitted on 31 March 1987.   9.       Legal aid under the Addendum to the Commission's Rules of Procedure was granted to the applicant on 13 March 1987.   10.      On 7 October 1987 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   11.      The hearing took place on 7 March 1988.   The applicant was represented by Mr.   Knut Rognlien as counsel and by Mr. Øyvind Solberg, advocate, as adviser.   12.      The Government were represented by Mr.   Erik Møse of the Attorney General's office as agent, Mr.   Robert W. Knudsen of the Ministry of Foreign Affairs as co-agent, and by Ms.   Kari Meling of the Ministry of Justice, Ms.   Mette Walaas from the Directorate of Health, Mr.   Roger Østbøl of the Ministry of Social Affairs, and Mr.   Karsten Helgeby of the Ministry of Foreign Affairs as advisers.   13.      Following the hearing the Commission declared the applicant's complaint under Article 3 of the Convention inadmissible and adjourned the examination of the issue under Article 5 para. 4 of the Convention.   It was also decided to request the parties to submit further observations on this particular issue.   14.      The Government's further observations were submitted on 7 April 1988 and the applicant's further observations were submitted on 8 April and 7 May 1988.   15.      The Commission declared the issue under Article 5 para. 4 of the Convention admissible on 12 May 1988.   16.      The parties were then invited to submit additional observations on the merits of the case.   The applicant submitted additional observations on 25 July 1988 and the Government submitted additional observations on 26 August 1988.   17.      After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 16 May 1988 and 10 February 1989.   The Commission now finds that there is no basis upon which such a settlement can be effected at present.   C.       The present Report   18.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   E. BUSUTTIL                   A. WEITZEL                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C. L. ROZAKIS              Mrs.   J. LIDDY   19.      The text of this Report was adopted on 16 March 1989 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   20.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is :          (i)    to establish the facts, and          (ii)   to state an opinion as to whether the facts found              disclose a breach by the State concerned of its              obligations under the Convention.   21.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decisions on the admissibility of the application as Appendices II and III.   22.      The full text of the pleadings of the parties, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       The particular facts of the case   23.      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.   24.      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 5 years in accordance with Section 39 para. 1 (e) of the Penal Code.   In an expert opinion obtained at that time, the applicant was declared mentally ill (sinnssyk) and he spent the periods from 5 May 1967 to 5 September 1969 at Telemark Central Hospital, and from 5 September 1969 to 13 July 1972 at Reitgjerdet Mental Hospital.   It does not appear from the facts established that the applicant was released at any time during these periods.   Neither does it appear that he challenged the legality or necessity of further detention during the five year period.   25.      From 1973 to 1978 the applicant spent a total of approximately 4 years at either Telemark Central Hospital or Reitgjerdet Mental Hospital in accordance with the provisions of the Mental Health Act (lov om psykisk helsevern).   26.      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 permanently impaired mental capacity (mangelfullt utviklede og varig svekkede sjelsevner).   The risk of further criminal offences was therefore imminent.   27.      By judgment of 26 June 1978 pronounced by the District Court (herredsrett) of Kragerø, the applicant was sentenced to 60 days in prison and, at the request of the prosecuting authority, the Court authorised the use of preventive detention under Section 39 para. 1 (a) to (f) of the Penal Code for a maximum period of five years, should this prove necessary.   In its judgment the Court pointed out that preventive detention in a prison as set out in Section 39 para. 1 (f) 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 authorities would take the necessary measures in order to avoid prolonged stays in prison.   28.       Due to the above recommendations of the Court, the Chief of Police of Kragerø contacted the Telemark Central Hospital inquiring whether they could admit the applicant.   On 27 June 1978, however, the acting chief physician of the hospital informed the Chief of Police that the hospital could not receive the applicant.   The hospital had already been in charge of the applicant for a considerable period of time, 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 to both the staff and other patients.   The hospital considered the applicant as a brain-damaged deviant (psychopath)   (hjerneskadet karakterafviger (psykopat)) and psychiatric treatment did not appear to open any possibilities for an improvement in his situation.   29.      The 60 days' imprisonment imposed by the Court on 26 June 1978 was considered served in detention on remand but as a consequence of the above inquiries and on the authorisation of the above judgment the prosecuting authority (statsadvokaten) decided, on 3 July 1978, to detain the applicant in accordance with Section 39 para. 1 (e) in a security ward at Ila National Penal and Preventive Detention Institution, hereafter called Ila.   The applicant arrived there on 4 July 1978.   30.      The question of continuing detention at Ila was taken up due to the applicant's request of 8 September 1978 to be released under protective surveillance (sikring i frihet) addressed to the prison authorities.   The Director of Ila forwarded the application to the Ministry of Justice on 18 September 1978 informing the Ministry 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 the prison.   31.      On 5 October 1978 the Ministry of Justice decided nevertheless that the applicant should remain at Ila until further notice in accordance with Section 39 para. 1 (e).   It does not appear that the applicant challenged this decision in any way.   32.      On 10 January 1979 the applicant's lawyer applied to the Ministry of Justice for the applicant's release from the detention at Ila and his placement under protective supervision in accordance with Section 39 para. 1 (a) to (c) and with the views expressed in 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) to (c).   33.      However, after approximately one week he was back at Ila since he did not comply with the conditions imposed.   A subsequent leave of absence scheme from Ila was arranged, with assigned residence at his parents' home at Kragerø.   However, the applicant refused to return to Ila when the period of leave of absence had come to an end and he was brought back to Ila by the police on 16 August 1979.   34.      It furthermore appears that the authorities at Ila made an arrangement with the Telemark Central Hospital to which the applicant was transferred on 1 December 1979 and where he was provided 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.   35.      By a letter of 17 December 1979 addressed to the Ministry of Justice, the Director of Ila recommended to release the applicant under protective surveillance in accordance with Section 39 para. 1 (a) to (c) with placement at his parents' home at Kragerø.   It was pointed out that the applicant was obviously a psychiatric case and not fit for placement in a prison.   All rehabilitation projects had failed and there was nothing more that could be done for the applicant at Ila. The Director also considered that the applicant was under the responsibility of the health authorities and therefore recommended   that the Ministry of Justice contact these authorities in order to solve the question of the applicant's possible placement in a suitable psychiatric institution.   36.      On 21 January 1980 the Ministry of Justice decided to release the applicant with assigned residence at his parents' home under Section 39 para. 1 (a) to (c).   The applicant 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 he threatened his parents to such an extent that they were forced to leave their home.   Due to these incidents the applicant was arrested and detained on remand at Skien District Prison.   By judgment of 15 June 1980 the District Court of Kragerø sentenced the applicant 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 Central Hospital twice but returned to Skien District Prison since the hospital could not take care of him as he threatened the staff and refused to take the prescribed medicine.   37.      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.   A contact was established with the Telemark Central Hospital and whilst in preventive detention at Ila the applicant accepted to be treated with medicine and he was transferred to the hospital on whose premises he got his own flat.   He was also repeatedly permitted to leave the premises.   He returned to Ila at the end of January 1981 and stayed there until 2 June 1981 when he was again released to his parents' home under protective surveillance and in accordance with Section 39 para. 1 (a) to (c) as decided by the Ministry of Justice.   38.      The applicant's release under protective surveillance did not prove very successful and after a number of unfortunate episodes the Ministry of Justice decided to detain the applicant at Ila again under Section 39 para. 1 (e).   The applicant accordingly returned to Ila on 17 July 1981.   It does not appear that the applicant in any way challenged the decision to detain him again.   39.      The applicant's placement at the security ward at Ila did not prove successful either.   The applicant attacked the prison personnel on several occasions and he was as a consequence thereof often placed in security cells.   The prison authorities contacted Reitgjerdet Mental Hospital in order to have the applicant transferred to the hospital.   However, it was considered that the applicant did not fulfil the requirements for being placed there.   Such a placement would require that the applicant fulfilled the conditions for admission under the Mental Health Act.   40.      By letter of 16 September 1981 the Director of Ila requested assistance from the Ministry of Justice to have the applicant transferred to the psychiatric health care.   Furthermore, the applicant requested release under protective surveillance.   It appears that the Ministry, subsequent to its examination of the matter, concluded that nothing could be done concerning the applicant's transfer to an adequate place of treatment under the psychiatric health system unless the situation developed and the applicant became psychotic within the meaning of the Mental Health Act.   41.      Due to the unfortunate circumstances at Ila the Ministry of Justice decided on 5 February 1982 to apply Section 39 para. 1 (f) and the applicant was transferred to the District Prison of Oslo on 16 February 1982.   During the applicant's stay at the District Prison of Oslo there was frequent contact with the Telemark Central Hospital in order to transfer him there, if possible.   It turned out, however, that there was no such possibility and during a meeting of the prison administration on 22 October 1982 it was considered that a transfer to Ullersmo National Penitentiary would appear to be the best solution in order to let the applicant receive a change of environment.   The applicant was accordingly transferred to Ullersmo where he arrived on 4 November 1982, still under the authorisation of the Ministry of Justice under Section 39 para. 1 (f) of the Penal Code.   The applicant remained at Ullersmo until 18 November 1983.   42.      In the meantime the applicant was convicted by the District Court of Asker and Baerum on 18 March 1983 and sentenced to six months' imprisonment for having, in three cases, assaulted prison staff whilst in preventive detention at Ila and Ullersmo.   The psychiatric expert opinion obtained for the trial concluded, as before, that the applicant was not mentally ill but suffered from an underdeveloped and permanently impaired mental capacity.   With regard to the authorisation of security measures under Section 39 of the Penal Code the Court pointed out that the information available showed that 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 concluded that everything should be done to give him adequate treatment.   Thus, in addition to the six months' prison sentence the Court authorised the prosecuting authority to impose security measures under Section 39 para. 1 except, however, detention in a security ward or in a prison as set out in Section 39 para. 1 (e) and (f).   43.      Having served his six months' prison sentence the applicant was thus released on 18 November 1983 and placed in an apartment at Kragerø under the surveillance of the local police.   However, on 19 December 1983 he was arrested and detained on remand charged with new violations 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.   44.      During his detention on remand the applicant was admitted to Reitgjerdet Mental Hospital from 4 to 26 January 1984.   As from 26 January 1984 the applicant was in detention on remand at Ila.   On 20 September 1984 the District Court of Kragerø, in its judgment of the same day, found the applicant guilty of most of the charges brought against him and sentenced him to 120 days' imprisonment.   Furthermore, the Court decided in accordance with Section 39 para. 2 of the Penal Code that security measures under Section 39 para. 1 should be imposed on the applicant and the Court authorised the prosecuting authority to use all measures mentioned in paras. (a) to (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 in a security ward under Section 39 para. 1 (e) and (f), should this prove necessary.   This was apparently found necessary since the applicant remained at Ila.   45.      The applicant appealed against the decision as to the preventive detention to the Supreme Court (Høyesterett).   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 naturally concerns the question whether the authorisation to impose the security measures appealed against should replace the authorisation given by the District Court of Asker and Baerum on 18 March 1983.   Under this judgment the prosecution can, until 18 November 1988, impose protective measures under Section 39 para. 1 (a), (b), (c), (d), and (e) except placement in a security ward.   I consider it beyond doubt that the scope of the security 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 security measures on an offender of such distinct danger. Considerations for the protection of society entail in my view that the authorities should be able to impose security 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 the decision of a Norwegian court concerning the authorisation to use security measures, in a case like the present one, should violate (Article 3) of the Council of Europe Convention.   It is for the implementing authorities to ensure that the security measure is given a practical frame which on top of ensuring the interests of society also tries to promote the interests of (the applicant) including his need for psychiatric treatment.     ...   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 I 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 solution which can take into account the legitimate interests of both (the applicant) and society."   46.      Whilst the applicant's criminal case was pending, ending with the above Supreme Court judgment, he stayed at Ila and remained there until 7 November 1985 when he was transferred to Ullersmo as authorised by the Ministry of Justice under Section 39 para. 1 (f) of the Penal Code.   The applicant did not challenge this decision.   47.      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 in the above Supreme Court judgment and an application was lodged with the hospital which was supposed to supervise this project.   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.   48.      An application was also submitted to Reitgjerdet Mental Hospital, which was prepared to accept the applicant for treatment. However, according to the general regulations applicable to that institution, only patients who are "seriously mentally deranged" may be admitted.   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 April/May 1986.   On 6 May, however, the applicant's case was considered by the Supervisory Board of the hospital (kontrollkommisjonen for Reitgjerdet sykehus) which found that the requirements for staying at the hospital were not fulfilled.   The applicant was not psychotic in its opinion. Accordingly the applicant was sent back to Ullersmo were he remained until 12 January 1987, still under the authorisation of the Ministry of Justice in accordance with Section 39 para. 1 (f) of the Penal Code.   49.      By judgment of 29 October 1986 the applicant was convicted by the District Court of Asker and Baerum and given a suspended sentence of 45 days' imprisonment for an attack on a prison officer.   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, ... in a closed ward, with long periods of solitary confinement, despite the fact that the Court at that time pointed out that imprisonment would probably have negative effects on his development.   He was, however, considered as so dangerous that the imprisonment was nevertheless used as a security 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 remained in prison, and in a closed ward, more precisely at Ila National Penal and Preventive Detention Institution.   Of a preventive detention of approximately 8 years (the applicant) has spent five 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 of which he has now been found guilty, and which led to a 3/4 year'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 three times a week and consideration is given to the possibility of extending this to four days.     ...   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) should now receive 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, in showing understanding for (the applicant's) problems and making the sentence conditional, it 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."   50.      The applicant remained at Ullersmo under the authorisation of the Ministry of Justice until 12 January 1987 when he was transferred 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.   51.      On 24 February 1987 the applicant was transferred to Reitgjerdet Mental Hospital for certain examinations which showed that he was now to be considered psychotic.   Thus fulfilling the requirements for compulsory placement at the hospital he was kept there until 4 December 1987 when the hospital (now called Trøndelag Psychiatric Hospital) decided that he could no longer be considered psychotic. 52.      The applicant nevertheless remained at the hospital on a voluntary basis but after some weeks he became aggressive towards other patients and 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, still under the authorisation of the Ministry of Justice in accordance with Section 39 para. 1 (f) of the Penal Code.   53.      With effect from 8 February 1988 the preventive measures were changed.   In accordance with Section 39 para. 1 (a) to (c) the Ministry of Justice decided that the applicant should no longer stay at Ullersmo but was assigned residence in a house in Skien under the supervision of the Probation and Aftercare Service (kriminalomsorg i frihet).   The applicant was there under the daily supervision of two social workers from Telemark Central Hospital which was responsible for his social training.   54.      On 19 April 1988 the applicant assaulted the social workers supervising him and the incident was reported to the police.   In order to protect the integrity of others and partly to emphasise clearly to the applicant that such behaviour could not be tolerated the Ministry of Justice decided on the same day to replace the preventive supervision under Section 39 para. 1 (a) to (c) by detention at a closed institution, at least for a short period of time.   The applicant was thus transferred to Arendal District Prison for preventive detention in accordance with Section 39 para. 1 (f).   55.      On 27 April 1988 the applicant instituted proceedings against the Ministry of Justice in the Oslo City Court, claiming that the Ministry's decision of 19 April 1988 was invalid.   On 6 May 1988, the Court asked for the Ministry's observations and ordered that the hearing in the case should take place on 20 June 1988.   Observations on behalf of the Ministry were submitted on 9 June 1988.   56.      In the meantime and following consultations with the Telemark Central Hospital and the Probation and Aftercare Service the Ministry of Justice decided on 18 May 1988 that the applicant could again be subjected to preventive supervision under Section 39 para. 1 (a) to (c).   Consequently, with effect from 19 May 1988, the applicant was transferred from Arendal District Prison to his house in Skien where he was again placed under supervision of the two social workers.   On 17 June 1988 the applicant's lawyer confirmed in writing that the applicant withdrew the case pending before the Oslo City Court as he was no longer detained.   The Court dismissed the case on 30 June 1988.   57.      Following several incidents of aggressive behaviour on the part of the applicant the Probation and Aftercare Service concluded on 24 June 1988 that it was no longer advisable to continue the programme of preventive supervision in Skien and recommended that other forms of preventive measures be employed until a suitable programme could be worked out under Section 39 para. 1 (a) to (c).   As the applicant was accused of several criminal offences he was transferred to detention on remand.   The decision of the Kragerø District Court of 27 June 1988 which authorised detention on remand until 22 July 1988 was upheld by the Agder Court of Appeal (lagmannsrett).   58.      On 21 July 1988 the Ministry of Justice decided that it was no longer advisable to continue the preventive supervision in Skien. The applicant was therefore transferred to Ila in accordance with     Section 39 para. 1 (e).   Maintaining that the Ministry's decision was invalid the applicant instituted proceedings against the Ministry of Justice in the Oslo City Court on 2 August 1988.   The Court held a hearing in the case on 7 September 1988 where the applicant and five witnesses were heard.   The Court pronounced judgment on 27 September 1988.   In its judgment the Court stated:   "The case concerns the validity of the Ministry of Justice's decision to change the security measures imposed from preventive supervision (frisikring) to preventive detention in a security ward.   ...   Concerning Section 96 of the Constitution   The Court (finds) that security measures under Section 39 cannot be imposed unless this, as required, is decided by a court.   When the judgment, as in (the applicant's) case, authorises security measures as set out in Section 39 para. 1 (a)-(f) for a maximum period of 5 years, this then means that it is the court which has decided that (the applicant) may be subjected to different security measures, including a closed ward, which cannot, however, exceed the time-limit fixed.   The court's decision fixes the scope of the security measures which can be imposed on the (person) according to rules set out in Section 39.   The legal provision whereby the Ministry decides to alter the security measures is found in Section 39 para. 4, subpara. 2. See also Section 39 para. 3 whereby 'the measures are terminated when they are no longer regarded as necessary, but may be resumed if there should be reason to do so'.   The Court does not find that these provisions contravene Section 96 of the Constitution whereby 'no-one can be punished except by judgment'.   The Ministry's decision under Section 39 para. 3 concerning a change back to placement in a security ward was based on the decision in the judgment which authorised the use of security measures.   Concerning procedural errors   (The applicant) was clearly informed in advance that the Ministry was planning to examine and decide on the question of an alteration of security measures when he was detained on remand in this connection.   This appears from the Kragerø District Court transcripts of 27 June 1988. ...   The witness statements have confirmed that (the applicant) was informed of the alteration of security measures.   The Court finds that this has been dealt with properly, having regard to Section 16 ... of the Public Administration Act.   Neither can it be established that the Ministry has failed to consider the rules set out in Section 17 ... . In any event the Court finds that even if (the applicant) would have felt a need for a further possibility to be informed, Section 41 of the Public Administration Act applies. ...   Concerning the fairness of the decision   The decision includes no time-limit but this does not mean that (the applicant) must expect a placement in the security ward to continue during the remainder of the security period.   On the contrary it has been submitted that a new preventive supervision programme is considered and that it is intended to decide to alter the security measures to such supervision before the end of October 1988.   Section 39 of the Penal Code does not require that a special time-limit is included in the decision to alter the security measures.   The law only requires a time-limit for the maximum period.   The question of time in connection with an alteration will be dependent on the time it takes to organise a new preventive supervision programme. ...   The Court does not find that the lack of time-limits in the decision gives reason to consider it unfair.   Neither will it be correct to consider the decision unfair because of the fact that the accusations brought against (the applicant) might lead to the filing of charges against him.   A punishable offence may justify an alteration to a more severe security measure, but this is then based on the aims of the security measures and not considered as a punishment.   If the case would be followed up and (the applicant) convicted, the question whether it is fair to use both placement for a certain period of time in a security ward and punishment must be considered when meting out the sentence.   In such circumstances it will be of importance that (the applicant) had to accept the alteration of the security measure.   This can be compared with the opposite constellation as set out in Section 39 para. 5 of the Penal Code."   59.      As the applicant's suit against the Ministry of Justice was unsuccessful from his point of view, costs were awarded against him and he remained at Ila.   The applicant did not appeal against the judgment.   At his request the Ministry of Justice subsequently released the applicant from the obligation to pay the costs of the proceedings.   60.      On 21 October 1988 the Ministry of Justice decided that the applicant should again be subjected to preventive supervision under Section 39 para. 1 (a) to (c) of the Penal Code and he was brought back to his house in Skien.   However, as he violated the restrictions imposed on him on several occasions the Ministry of Justice decided, on 27 December 1988, to detain him at Ila again in accordance with Section 39 para. 1 (e) of the Penal Code.   It does not appear that the applicant challenged this decision.   61.      On 11 January 1989 the applicant was convicted by the District Court of Kragerø of having violated Section 227 and Section 228 in conjunction with Section 230 of the Penal Code (threats and assault). He was sentenced to 120 days' imprisonment which were considered served in detention on remand.   The applicant is, however, at present detained at Ila under Section 39 para. 1 (e) of the Penal Code.   The authorisation to implement security measures, upheld by the Supreme Court in 1985, expires on 25 February 1990.   B.       Relevant domestic law and practice   a.       Section 39 of the Penal Code   62.      The legal basis for preventive measures is Section 39 of the Penal Code of 22 May 1902.   Sections 39 - 39b read as follows:   § 39   "1.   Hvis en ellers straffbar handling er foretatt i sinnssykdom eller bevisstløshet eller en straffbar handling er begått i bevisstløshet som er en følge av selvforskyldt rus eller under en forbigående nedsettelse av bevisstheten eller av en person med mangelfullt utviklede eller varig svekkede sjelsevner, og der er fare for at gjerningsmannen på grunn av en sådan tilstand atter vil foreta en handling som foran nevnt, kan retten beslutte at påtalemyndigheten i sikringsøiemed skal   a.   anvise eller forby ham et bestemt opholdssted, b.   stille ham under opsikt av politiet eller en dertil særlig     opnevnt tilsynsmann og pålegge ham å melde sig for politiet     eller tilsynsmannen til visse tider, c.   forby ham å nyte alkoholholdige varer, d.   anbringe ham i betryggende privat forpleining, e.   anbringe ham i psykiatrisk sykehus, kursted, pleieanstalt     eller sikringsanstalt, såframt det er adgang til dette     etter alminnelige forskrifter utferdiget av Kongen, f.   holde ham i fengslig forvaring.   2.   Er det på grunn av sådan tilstand fare for handlinger av den art som er omhandlet i §§ 148, 149, 152 annet ledd, 153 første, annet og tredje ledd, 154, 155, 159, 160, 161, 192-198, 200, 206, 212, 217, 224, 225, 227, 230, 231, 233, 245 første ledd, 258, 266, 267, 268 eller 292, skal retten beslutte anvendelse av sådanne sikringsmidler som foran nevnt.   3.   Forholdsreglene innstilles når de ikke lenger anses påkrevet, men kan gjenoptas når dertil finnes grunn.   Av de under a-d nevnte sikringsmidler kan flere anvendes samtidig.    Retten skal fastsette en lengstetid utover hvilken forholdsregler ikke må anvendes uten rettens samtykke.   4.   Hvis ikke retten har truffet annen bestemmelse, har påtalemyndigheten valget mellem de nevnte sikringsmidler.    Bestemmelse om at et sikringsmiddel skal innstilles eller gjenoptas eller ombyttes med andre, treffes av vedkommende departement.    Før der treffes beslutning om sikkerhetsforholdsregler eller om å innstille sådanne, skal der som regel innhentes erklæring fra sakkyndig læge.   Det samme bør skje med visse mellemrum under anvendelsen av disse forholdsregler.   5.   Er straff ilagt for handlingen, kan departementet bestemme at den helt eller delvis skal bortfalle hvis der anvendes forholdsregler som nevnt i post 1.   6.   Er gjerningsmannen anbrakt i psykiatrisk sykehus, uten at retten før hans innleggelse har behandlet spørsmålet om sikringsmidler, skal påtalemyndigheten varsles før utskriving   besluttes, og utskriving må ikke settes i verk før det har vært anledning til å få rettens avgjørelse om ytterligere fo