CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1992

.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. 17391/90                       by S.E.                       against Norway           The European Commission of Human Rights (Second Chamber) sitting in private on 2 December 1992, the following members being present:                  MM.   S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs. G.H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS                    Mr. K. ROGGE, Secretary to the Second Chamber             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 17 September 1990 by S.E. against Norway and registered on 5 November 1990 under file No. 17391/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant is a Norwegian citizen born in 1948. He resides at K. Before the Commission he is represented by Mr. Knut Rognlien, a lawyer practising in Oslo.   A. The particular facts of the case         The applicant's previous application (no. 11701/85) was finally determined by the European Court of Human Rights in its judgment of 29 August 1990 (Series A no. 181-A). The present case is related to the previous case in that it also concerns the doubts about the applicant's mental capacity and the conflicts which arise out of this.         The Commission recalls from the applicant's previous application that he was involved, in 1965, in a traffic accident which caused serious brain damage. This subsequently led to a distinct tendency to become aggressive. The applicant was described as a person with an underdeveloped and permanently impaired mental capacity (mangelfult utviklede og varig svekkede sjelsevner) and was on numerous occasions in conflict with the law and convicted because of his aggressiveness. As from 1978 the applicant spent years in various prisons under a system of preventive detention. On 12 January 1985 the Supreme Court (Høyesterett) upheld a judgment of the District Court of Kragerø of 20 September 1984 and furthermore authorised the implementation of security measures under Section 39 of the Penal Code until 25 February 1990. Under this authorisation the applicant, inter alia, spent several years in solitary confinement, in particular due to his aggressive behaviour.         In its decision on admissibility of 7 March 1988 the Commission found that the circumstances of the applicant's detention did not, in the light of his distinct dangerousness, the stringency of the measures when compared with the objective pursued and the effects on the applicant, attain the level of seriousness which would make the detention inhuman or degrading within the meaning of Article 3 of the Convention.         The Commission recalls that when the above decision was taken the applicant's situation had just changed. With effect from 8 February 1988 the Ministry of Justice decided, pursuant to Section 39, subsection 1 (a) to (c), of the Penal Code, that the applicant should no longer stay at Ullersmo National Penitentiary (Ullersmo), and he was assigned residence in a house in Skien under the supervision of the Probation and Aftercare Service (kriminalomsorg i frihet). The applicant was there under the daily supervision of two social workers from the Telemark Central Hospital which was responsible for his social training.         On 19 April 1988, i.e. subsequent to the Commission's decision on admissibility, the applicant assaulted the social workers supervising him and the incident was reported to the police. In order to protect the physical integrity of others and also to emphasise clearly to the applicant that such behaviour could not be tolerated the Ministry of Justice decided on the same day to replace the preventive supervision under Section 39, subsection 1 (a) to (c), by detention in a closed institution, at least for a short period of time. The applicant   was thus transferred to Arendal District Prison in accordance with Section 39, subsection 1 (f), of the Penal Code.         Following consultations with the Telemark Central Hospital and the Probation and Aftercare Service the Ministry of Justice decided on 18 May 1988 that the applicant could again be subjected to preventive supervision under Section 39, subsection 1 (a) to (c). Consequently, with effect from 19 May 1988, the applicant was transferred from Arendal District Prison to the house in Skien where he was again placed under supervision of the two social workers.         Following several incidents of aggressive behaviour by the applicant, the Probation and Aftercare Service concluded on 24 June 1988 that it was no longer advisable to continue the programme of preventive supervision in Skien and recommended that other forms of preventive measures be employed until a suitable programme could be worked out under Section 39, subsection 1 (a) to (c). As the applicant was accused of several criminal offences he was placed in detention on remand.         On 21 July 1988 the Ministry of Justice decided that it was no longer advisable to continue the preventive supervision in Skien. The applicant was therefore transferred to the Ila National Penal and Preventive Detention Institution (Ila) in accordance with Section 39, subsection 1 (e), of the Penal Code.         On 21 October 1988 the Ministry of Justice decided that the applicant should again be subjected to preventive supervision under Section 39, subsection 1 (a) to (c), of the Penal Code and he was taken back to his house in Skien. However, as he violated the restrictions imposed on him on several occasions the Ministry of Justice decided, on 27 December 1988, to detain him again at Ila in accordance with Section 39, subsection 1 (e), of the Penal Code.          On 11 January 1989 the applicant was convicted by the District Court of Kragerø of having violated Section 227 and Section 228 in conjunction with Section 230 of the Penal Code (threats and assault). He was sentenced to 120 days' imprisonment which were considered served in detention on remand. The applicant remained, however, detained at Ila under Section 39, subsection 1 (e), of the Penal Code in accordance with the Supreme Court authorisation of 1985 to implement security measures.         On 11 January 1990 the prison authorities of Ila submitted a report to the State Prosecutor concerning the applicant. Having regard to the fact that the Supreme Court authorisation of 12 January 1985 to use preventive measures would expire on 25 February 1990 the report recommended that security measures under Section 39 of the Penal Code be prolonged. On 2 February 1990 the State Prosecutor accordingly submitted a request to the District Court of Kragerø for permission to prolong by three years the period during which preventive measures under Section 39 of the Penal Code could be used.         On 7 February 1990 the Chief of Police requested the District Court to detain the applicant on remand for a period of four weeks in order to obtain a medical opinion to be used during the forthcoming hearing concerning the question of further authorisation to use preventive measures. It was noted that the previous authorisation would expire on 25 February 1990.         On 12 February 1990 the District Court considered the question of detention on remand. The applicant maintained that a detention on remand after 25 February 1990 would be illegal, and that such detention would mean that he would be punished for the same offences twice. He furthermore alleged that the only reason why the authorities requested his detention on remand was because they had failed to proceed with the case although they had known for five years when the authorisation would expire.         In its decision of 12 February 1990 to detain the applicant on remand for a period of four weeks beyond 25 February 1990 the District Court stated:   (translation)         "In accordance with Norwegian law the prosecuting authority       shall consider and, where appropriate, determine the       question of prolonging the period during which preventive       measures can be used, regardless of the fact that the       person in question has not committed new criminal offences,       cf. Section 39, subsection 3, of the Penal Code.         ...         In addition Section 171, subsection 2 in fine, of the Code       of Criminal Procedure [straffeprosessloven] authorises the       use of detention on remand in cases were there is a need       for such detention before a new decision on preventive       measures can be taken. The requirements are that continuing       use of preventive measures is the most likely outcome of       the case and that one of the specific detention       requirements of Section 171, subsection 1, is fulfilled. In       this case it is the requirement no. 3 in Section 171,       subsection 1, which is relevant - the risk of new criminal       offences which carry more than 6 months' imprisonment.         ...         The preventive measure issues cannot be examined before       25 February 1990. This is due to the fact that a necessary       expert opinion will not be ready before then.         ...         The Court finds that there is reason to follow the       prosecutor's request, cf. [the above-mentioned provisions       of the Code of Criminal Procedure].           In the opinion of the Court it is very likely that [the       applicant] - if released in two weeks - will commit       criminal offences such as threats (Section 227 of the Penal       Code) and assault (Section 228). He has without doubt       strong character deviations, little tolerance and easily       threatens people's life and health, and also attacks them.       Today he rejects any form of supervision proposals. The       Court refers in its evaluation first of all to what has       happened earlier. In the Supreme Court's decision of 1985       there is a thorough account until that time. Since 1985 he       has been convicted twice for violations of Sections 227       and 228. The psychiatrist H must be understood as also       considering that [the applicant] due to his weak impulse       control and impaired capacity to control himself, will find       himself in situations where he reacts with verbal threats       if he is released and that things will - despite his good       intentions - go wrong.         Furthermore, it is likely that the case will end with the       use of preventive measures against [the applicant] - for       one or more years and with one or more of the measures       mentioned in Section 39, subsection 1 (a) to (f), of the       Penal Code. It suffices here to refer to the fact that the       Ila prison authorities recommend this and to the fact that       the psychiatrist H has drawn up a new plan for preventive       measures.         In the present circumstances the Court cannot see that the       detention is a disproportionate step. [The applicant's]       case is sad and tragic. The Court cannot consider only what       is in his interest but must also consider the risk of the       applicant exposing others to fear and danger. As far as the       Court can see from the documents now, it appears that the       outcome will be the taking of preventive measures to be       implemented in Skien which should work better than the last       programme and which will secure him a much better life than       during the last 14 months."         The applicant appealed against this decision to the Agder High Court (Agder Lagmannsrett). On 23 February 1990 the High Court upheld the decision of the lower court and added:   (translation)         "It is clear that according to Norwegian law it has been       assumed until now that it is possible to prolong the period       of detention even if the person concerned has not committed       any crimes during that period. The High Court does not find       that such an arrangement violates Article 4 of       Protocol No. 7 to the Convention concerning a new       conviction of a crime for which he has already been       convicted. The requirement in law that the Court shall fix             a maximum period for preventive detention is based on, for       example, considerations in respect of the convicted person       -to secure that he will have a judicial review after a       certain period of time of the necessity of the continuation       of preventive measures.         ...         The High Court has no doubt that there is a very obvious       risk that [the applicant] will commit new criminal offences       if he is released at the end of the period of preventive       detention without the prison or the prosecuting authorities       having any control over him ... In order to prevent new       acts of violence it is necessary that he is taken care of       also after the preventive detention period has expired.       Accordingly, there is a need for detention on remand and a       very probable possibility for an authorisation of further       preventive measures.         ...         The High Court notes that detention on remand does not       appear to be a disproportionate measure. Considerations for       the protection of society must have priority over [the       applicant's] interest in being released.         The fact that the request for detention on remand of       9 February 1990 ... is based on the ground that time is       needed in order to obtain an additional expert opinion is,       in the opinion of the High Court, of no relevance to the       question of detention. The hearing concerning the question       of continuing preventive measures cannot be held before an       opinion has been submitted also by another expert in       psychiatry ... Until the hearing can be held it is       necessary to take care of [the applicant] due to the danger       of repetition.         The High Court understands the hopelessness expressed by       [the applicant's] counsel concerning the fact that a       programme for [the applicant] has still not been made.       However, it cannot be maintained that detention on remand -       having regard to the circumstances of the case - even       considering the treatment [the applicant] has previously       received, would amount to a violation of Article 3 of the       Convention."         The applicant appealed against this decision to the Supreme Court. On 16 March 1990 the Supreme Court rejected the appeal. In its decision the Court stated:   (translation)         "In accordance with Section 39, subsection 3, second       sentence, [of the Penal Code] the Court must in cases of       preventive detention fix a maximum period beyond which no       measures can be taken without the Court's permission. A       decision concerning the prolongation of the preventive       detention does not mean that the convict is convicted or       punished again for those offences which constituted the       basis for the judgment allowing the use of preventive       measures. That these offences constitute the basis for       using preventive measures has already been decided through       this judgment. What is relevant for the question whether       the use of preventive measures should be prolonged beyond       the initial maximum period fixed is an evaluation of the       other circumstances which provide reasons for using       preventive measures, the convict's mental capacity and the       risk of further criminal offences being committed. That the       period of preventive measures may be prolonged, if there is       reason to do so after such an evaluation, follows from the       judgment allowing the use of preventive measures read in       conjunction with Section 39, subsection 3, second sentence.         It follows from this that the High Court has not based its       decision on an incorrect interpretation of Article 4       para. 1 of Protocol No. 7 to the Convention when it has       assumed that a prolongation of the period of preventive       measures in accordance with Section 39, subsection 3,       second sentence, of the Penal Code is not contrary to the       Convention provision.         The Court does not find either that the High Court's       decision is based on an incorrect interpretation of       Articles 3 or 6 of the Convention."         The applicant accordingly remained at Ila, in detention on remand, after the Supreme Court's authorisation of 12 January 1985 expired on 25 February 1990. The detention on remand was on 20 March 1990 prolonged until 25 April 1990 by the District Court. The decision was upheld by the High Court on 30 March 1990, and by the Supreme Court on 19 April 1990. The detention was prolonged again on 20 April 1990 until 21 May 1990. On 14 May 1990, however, the Prosecutor General withdrew the request for a prolongation of the period during which preventive measures could be used against the applicant. He was accordingly released on 15 May 1990.         Subsequent to his release the applicant soon experienced difficulties in adapting to the norms of society and he was arrested again, apparently in December 1990, and charged with new violations of Sections 227 and 228 of the Penal Code (threats and assaults). By judgment of 13 February 1991 he was convicted and sentenced to 7 months' imprisonment and the prosecuting authorities were authorised to use preventive measures under Section 39, subsection 1 (a) to (f), of the Penal Code for a maximum period of three years. This judgment was upheld by the Supreme Court on 1 November 1991 with the amendment that only the measures under Section 39, subsection 1 (a) to (b) and (d) to (f), could be imposed.         In the meantime, on 8 July 1991, the applicant had again been convicted and sentenced to 90 days' imprisonment by the District Court for new offences similar to those mentioned above. In connection with the last two judgments the applicant spent a total of four months in prison. Since mid-July 1991 the applicant has been in freedom and has not been charged with any offences. The authorities have apparently not made use of the authorisation to use preventive measures.   B. Relevant domestic law         Section 39 of the Penal Code in its relevant parts reads as follows:   (translation)         "Section 39         1.    If an otherwise punishable act is committed in a state       of insanity or unconsciousness or if a punishable act is       committed in a state of unconsciousness due to self-       inflicted intoxication, or in a state of temporarily       reduced consciousness, or by   someone with an       underdeveloped or permanently impaired mental capacity, and       there is a danger that the offender, because of his       condition, will repeat such an act, the court may decide       that the prosecuting authority, as a security measure,       shall         a.    assign or forbid him a particular place of residence,         b.    place him under surveillance by the police or a       specially appointed probation officer and order him to       report to the police or the probation officer at designated       intervals,         c.    forbid him to consume alcoholic beverages,         d.    place him in secure private care,         e.    place him in a mental hospital, sanatorium, nursing       home or security ward, where possible, in accordance with       the general provisions promulgated by the King,         f.    keep him in preventive detention.         2.    If such condition involves danger of acts of the kind       covered by Sections 148, 149, 152, subsection 2, 153,       subsections 1, 2 or 3, 154, 155, 159, 160, 161, 192 - 198,       200, 206, 212, 217, 224, 225, 227, 230, 231, 233, 245,       subsection 1, 258, 266, 267, 268 or 292, the court shall       decide to apply such security measures as are mentioned       above.         3.    These measures are terminated when they are no longer       regarded as necessary, but may be resumed if there is       reason to do so. The security measures listed under (a)-(d)       may be employed concurrently.           The court shall determine the maximum period for which       security measures may be imposed without its further       consent.         4.    Unless the court has decided otherwise, the       prosecution may chose between the above-mentioned security       measures.         The decision to terminate, resume or alter a security       measure is made by the ministry.         Before a decision about security measures or their       termination is made, the opinion of a medical specialist       must ordinarily be obtained. The same procedure should be       followed at regular intervals during the period in which       security measures are in force."     COMPLAINTS         The applicant submits that subsequent to the Commission's decision on admissibility of 7 March 1988 concerning Article 3 of the Convention he was detained under similar conditions, including solitary confinement, for two more years, i.e. until 15 May 1990. He submits that in the period from December 1988 until his release the conditions were stricter since he received no leave of absence from Ila and the authorities made fewer efforts to arrange alternatives. He considers that the total period of confinement now amounts to a violation of Article 3 of the Convention.         Under Article 5 of the Convention the applicant complains that his detention from 25 February to 15 May 1990 did not fulfil any of the conditions set out in this provision. The only reason for this detention was a need to obtain an expert opinion, something which should have happened much earlier, thereby avoiding the disputed period of detention.         The applicant also complains, under Article 6 of the Convention, of the fact that the report of 11 January 1990 from Ila contained allegations of the applicant having threatened prison officers without this being supported by any proof. He maintains that this influenced the courts which decided on the question of prolonging the period of preventive detention and thus deprived him of his right to a fair hearing.         Finally, the applicant complains, under Article 4 para. 1 of Protocol No. 7 to the Convention, that his detention from 25 February to 15 May 1990 had no legal basis other than his conviction of 20 September 1984 by the Kragerø District Court as confirmed by the Supreme Court on 12 January 1985. Accordingly, his detention was a new punishment for offences of which he had already been finally convicted.         THE LAW   1.     The applicant complains that his conditions of detention and treatment in prison from 1978 to 1990 amounted to a breach of Article 3 (Art. 3) of the Convention which reads:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The applicant maintains that although the Commission previously did not find that his detention raised issues under this provision the additional detention now renders the treatment inhuman or degrading.         In its decision on admissibility of 7 March 1988 the Commission examined the period of detention from 1978 to 1988. It stated as follows:         "In this case, the Commission recalls that the applicant,       since 1978, has been convicted four times of violent acts       and has been sentenced to a total of 15 months'       imprisonment, not including a suspended sentence of 45       days' imprisonment. Over the years the applicant has on       several occasions been examined by medical experts who have       concluded that, although extremely aggressive, he is not       insane but should be regarded as a person with an       underdeveloped   and impaired mental capacity.         In addition to the above mentioned prison sentences the       applicant has therefore been placed in preventive       detention, most recently by judgment of the Norwegian       Supreme Court on 12 January 1985. In accordance with these       authorisations under Section 39 of the Norwegian Penal       Code, the applicant has spent approximately eight years in       various prisons of which approximately five years have been       spent in solitary confinement wards including a total of       118 days in security cells.         As regards the use of solitary confinement and the       placement in security cells, the Commission notes that this       to a large extent was related to the applicant's own       behaviour. From the facts of this case it is clear that the       applicant has on many occasions attacked persons from       outside prison and prison staff. All of his convictions       since 1978 relate to assault and bodily harm and in these       circumstances the Commission finds that there is no reason       to criticise the decisions as such to place the applicant       in the solitary confinement wards.         As regards the form of isolation to which the applicant was       subjected, there is a certain divergence of views between       the parties due to the fact that the applicant's repeated       placement in solitary confinement wards concerns a       considerable period of time.           The Commission finds it established, however, that the       applicant had access - at any given time, except when       placed in security cells - to radio and, to a certain       extent, television. He could read newspapers and borrow       magazines and books from the prison library. One hour every       day was spent in the exercise yard and he had contact       several times a day with prison staff. It is furthermore       clear that, as regards his most recent stay at Ullersmo,       the applicant was subjected to a system quite different       from that of other prisoners in solitary confinement. In       particular, the prison authorities offered the applicant       the opportunity to participate in a number of common       arrangements and he could leave the prison premise on       Mondays, Wednesdays and Fridays. In addition, he was       allowed approximately once every three months to go home       for several days. In this respect the Commission has also       noted the applicant's submission that the efforts of the       prison authorities to help him have been remarkable.         The Commission furthermore recalls that the Norwegian       authorities showed concern for improving the applicant's       situation. The applicant was on several occasions released       from prison under protective surveillance. However, all       such attempts to release the applicant from prison       detention failed due to the applicant's own behaviour. He       was also transferred to different prisons so that he could       get a 'change of air'.         As regards treatment and supervision, the Commission       recalls that, according to the psychiatric examinations       carried out in 1978, 1982 and 1984, the applicant is       considered not to be insane but a person with an       underdeveloped and impaired mental capacity which leads to       a distinct tendency to become aggressive. As set out below       the Commission is not convinced that the applicant's       placement in prison was suitable to counteract this       aggressive tendency. However, the care and treatment which       the applicant received while in detention does not reveal       to the Commission any indications which could lead to the       conclusion that the applicant was not looked after as well       as prison conditions allowed. Further, as already mentioned       above, the prison authorities appear to have done what was       possible under their competence, including working out       programmes which could increase the applicant's contact       with the outside community.         The Commission has not overlooked the statements of the       Norwegian courts (cf. Supreme Court judgment of       12 January 1985 and most recently the District Court       judgment of 29 October 1986) from which it appears that the       applicant should have received treatment for his mental       deficiencies in a hospital rather than being placed in       preventive detention where he obviously could not receive       any such treatment. The Commission can only support these       views. Furthermore, the Commission has noted with concern       that the authorities, under the court authorisation given       to them, obviously failed for a regrettable period of time       to implement the measures appropriate to the applicant's       needs. Nevertheless, having regard to the case-law of the       Commission and the Court of Human Rights and to the       circumstances of the applicant's detention, in particular       in the light of his distinct dangerousness, the Commission       must conclude that the stringency of the measures, when       compared to the objective pursued and the effects on the       applicant, did not attain the level of seriousness which       would make the treatment inhuman or degrading within the       meaning of Article 3 (Art. 3) of the Convention."         The Commission recalls that subsequent to the above decision the applicant was twice, in 1988, assigned residence at Skien under the supervision of the Probation and Aftercare Service and two social workers from the Telemark Central Hospital. On both occasions, however,the programmes failed since the applicant assaulted the social workers and provoked other incidents involving aggressive behaviour which led to a conviction for violations of Sections 227 and 228 of the Penal Code by the District Court of Kragerø on 11 January 1989.         In these circumstance the Commission maintains the view that the applicant's detention related to his own behaviour, whereas the authorities also after the Commission's previous decision on admissibility tried to implement programmes which could improve his difficult situation. The Commission does not find, therefore, that the applicant's subsequent detention as such raises an issue under Article 3 (Art. 3) of the Convention. Furthermore, the applicant has not, in the Commission's opinion, submitted any substantiated evidence which could lead to the conclusion that the care and treatment which he received while in detention was insufficient or that he was not looked after as well as the prison conditions allowed. The Commission concludes, therefore, that even taking into consideration the periods of preventive detention following its previous decision on admissibility of 7 March 1988, this detention did not attain the level of seriousness which would render the treatment inhuman or degrading within the meaning of Article 3 (Art. 3) of the Convention.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     2.     Under Article 5 (Art. 5) of the Convention the applicant complains that his detention from 25 February to 15 May 1990 was illegal and furthermore did not fulfil any of the conditions set out in this provision.         The Commission considers that it is not sufficiently informed to decide on this complaint and finds it necessary to obtain observations from the parties in this respect. Accordingly, the examination of this part of the application must be adjourned.       3.     The applicant furthermore complains that he was deprived of a fair trial in the proceedings concerning the question whether the authorisation of the use of preventive measures should be prolonged. He invokes in this respect Article 6 (Art. 6) of the Convention.         The Commission notes that these proceedings never involved a hearing on the merits as the Prosecutor General withdrew the request for a prolongation of the period during which preventive measures could be implemented and the applicant was released. Furthermore, the Commission recalls that Article 6 (Art. 6) only applies to proceedings which involve the determination of either a civil right or obligation, or a criminal charge. In the present case the report of 11 January 1990 to which the applicant refers, contained a summary, prepared by the prison authorities, of his circumstances during his most recent stay at Ila on the basis of which the competent authorities could consider whether and to what extent it would be necessary to institute proceedings in court in order to obtain a prolongation of the existing authorisation to use preventive measures under Section 39 of the Penal Code. The Commission finds that such proceedings do not involve a determination of civil rights or obligations, or of a criminal charge within the meaning of Article 6 (Art. 6) of the Convention. Accordingly Article 6 (Art. 6) of the Convention is not applicable to these proceedings.         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     Finally, the applicant complains that his detention from 25 February to 15 May 1990 had no legal basis other than his conviction of 20 September 1984 by the Kragerø District Court as confirmed by the Supreme Court on 12 January 1985. He maintains, therefore, that the detention was a new punishment for offences of which he had already been finally convicted. He invokes in this respect Article 4 para. 1 of Protocol No. 7 (P7-4-1) to the Convention which reads:         "No one shall be liable to be tried or punished again in       criminal proceedings under the jurisdiction of the same       State for an offence for which he has already been finally       acquitted or convicted in accordance with the law and penal       procedure of that State."         The Commission recalls that by judgment of the Supreme Court of 12 January 1985 the competent authorities were authorised to use preventive measures against the applicant in accordance with Section 39 of the Penal Code until 25 February 1990. As explained by the High Court and the Supreme Court in their decisions of 23 February and 16 March 1990 respectively, this did not mean that the applicant had a right to be released after this date, but the maximum period set was a safeguard to secure that he, as well as any other person subjected to preventive measures, would have a certain judicial control of the necessity of the continuation thereof. Furthermore, the Commission has already found above that the detention from 25 February to 15 May 1990 was in accordance with Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.         In these circumstances the Commission finds that the applicant was "not punished again in criminal proceedings" within the meaning of Article 4 para. 1 of Protocol No. 7 (P7-4-1) to the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECIDES TO ADJOURN the examination of the application as far as       it concerns the applicant's complaint that he was detained from       25 February to 15 May 1990 contrary to Article 5 (Art. 5) of the       Convention, and         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)