CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 août 1994

.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 }                          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 31 August 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 regard to :   -      the Commission's partial decision as to the admissibility of the       application of 2 December 1992;   -      the observations submitted by the respondent Government on       15 March 1993 and the observations in reply submitted by the       applicant on 6 May 1993;         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. He resides at Kragerø. Before the Commission he is represented by Mr. Knut Rognlien, a lawyer practising in Oslo.   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 applicant's detention, his 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 pursuant to Section 39 of the Penal Code (Straffeloven) (see below "Relevant domestic law").         On 20 September 1984 the applicant was convicted once more by the District Court (herredsrett) of Kragerø of assault and inflicting bodily harm. He was sentenced to 120 days' imprisonment. Furthermore, the Court decided in accordance with Section 39, subsection 2 of the Penal Code that security measures under Section 39, subsection 1 should be imposed on the applicant, and the Court authorised the prosecuting authority to use all measures mentioned in subsection 1 (a) to (f) for a maximum period of five years. The Court explained thoroughly the extent of the preventive measures and referred to earlier decisions 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, subsection 1 (e) and (f), should this prove necessary.         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:   (translation)         "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 Bærum on       18 March 1983. Under this judgment the prosecution can, until       18 November 1988, impose security measures under Section 39,       subsection 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 within the meaning of 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 would 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 in addition to ensuring the interests of       society is also aimed at promoting the interests of (the       applicant) including his need for psychiatric treatment ... ."         Following the above authorisation the applicant was on numerous occasions placed in preventive detention under Section 39 of the Penal Code and he was detained at Ila National Penal and Preventive Detention Institution (Ila) when the prison authorities, on 11 January 1990, submitted a report to the State Prosecutor concerning the applicant. Having regard to the fact that the Supreme Court's 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 security 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 accordance with Section 171 of the Code of Criminal Procedure (Straffe- prosessloven) in order to obtain a medical opinion to be used during the forthcoming hearing concerning the question of further authorisation to use security 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 security       measures can be used, even if 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 authorises the use of detention on       remand in cases were there is a need for such detention       before a new decision on security 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 security 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 grant 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 security       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 security 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 May 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 of which he has already been       convicted. The requirement in law that the Court shall fix       a maximum period for preventive detention is based, inter       alia, on concern for the convicted person, i.e. to secure       that he will have a judicial review after a certain period       of time of the necessity of the continuation of security       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       security 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       [7] February 1990 ... is based on the ground that time is       needed in order to obtain an additional expert opinion is,       according to the High Court, of no relevance to the       question of detention. The hearing concerning the question       of continuing security measures cannot be held until 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 person in question is       convicted or punished again for those offences which       constituted the basis for the judgment allowing the use of       security measures. That these offences constitute the basis       for using security measures has already been decided       through this judgment. What is relevant for the question       whether the use of security measures should be prolonged       beyond the initial maximum period fixed is an evaluation of       the other circumstances which provide reasons for using       security measures, the person's mental capacity and the       risk of further criminal offences being committed. That the       period of security measures may be prolonged, if there is       reason to do so after such an evaluation, follows from the       judgment allowing the use of security 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 expiry of the Supreme Court's authorisation of 12 January 1985 on 25 February 1990. The detention on remand was on 20 March 1990 prolonged until 25 April 1990 by the District Court. This 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 security measures could be used against the applicant. He was accordingly released on 15 May 1990.         On 29 August 1990 the European Court of Human Rights pronounced judgment in regard to the applicant's previous application which concerned the possibility of obtaining a judicial review of preventive detention decided by the Ministry of Justice pursuant to Section 39 of the Penal Code (Article 5 para. 4 of the Convention). In its judgment which involved a period ending with the Oslo City Court judgment of 27 September 1988, the Court held:         - that there had been no violation of Article 5 para. 4 as regards the scope of the Norwegian courts' power to review the lawfulness of the applicant's detention;         - that there had been no violation of Article 5 para. 4 as regards their power to order his release; and         - that there had been a violation of Article 5 para. 4 on account of the failure, in the review proceedings instituted on 3 August 1988, to take a decision speedily. (Eur. Court H.R., Eriksen judgment of 29 August 1990, Series A no. 181-A.)   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 a 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 choose 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 normally be obtained. The same procedure should be       followed at regular intervals during the period in which       security measures are in force."         Section 171 of the Code of Criminal Procedure reads as follows:   (translation)         "Section 171         Any person who with just cause is suspected of one or more       acts punishable by law with imprisonment for a term       exceeding 6 months may be arrested when:         1)    there is reason to fear that he will evade prosecution            or the execution of a sentence or other precautions;         2)    there is an immediate risk that he will interfere with            any evidence in the case, e.g. by removing clues or            influencing witnesses or accomplices;         3)    it is deemed to be necessary in order to prevent him            from again committing a criminal act punishable by            imprisonment for a term exceeding 6 months; and         4)    he himself requests it for reasons that are found to            be satisfactory.         When proceedings relating to preventive supervision have been       instituted, or it is probable that such proceedings will be       instituted, an arrest may be made regardless of whether a penalty       may be imposed, as long as the conditions in subsection 1 are       otherwise fulfilled. The same applies when a judgment in favour       of preventive supervision has been pronounced or it is a question       of extending the maximum period for preventive supervision."   COMPLAINTS         Under Article 5 of the Convention the applicant complains that his detention from 25 February until 15 May 1990 was illegal and 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.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 17 September 1990 and registered on 5 November 1990.         On 2 December 1992 the Commission (Second Chamber) decided to declare the application inadmissible in so far as it concerned certain complaints submitted under Articles 3 and 6 of the Convention and Article 4 of Protocol No. 7 to the Convention. It furthermore decided to bring the remainder of the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.         Following an extension of the time-limit the Government's observations were submitted on 15 March 1993. The applicant's observations in reply were submitted on 6 May 1993.   THE LAW         The applicant complains that his detention on remand from 25 February to 15 May 1990 was contrary to Article 5 (Art. 5) of the Convention. This provision reads as follows:         "1.   Everyone has the right to liberty and security of person.       No one shall be deprived of his liberty save in the following       cases and in accordance with a procedure prescribed by law:              a.     the lawful detention of a person after conviction by       a competent court;              b.     the lawful arrest or detention of a person for       non-compliance with the lawful order of a court or in order to       secure the fulfilment of any obligation prescribed by law;              c.     the lawful arrest or detention of a person effected       for the purpose of bringing him before the competent legal       authority on reasonable suspicion of having committed an offence       or when it is reasonably considered necessary to prevent his       committing an offence or fleeing after having done so;              d.     the detention of a minor by lawful order for the       purpose of educational supervision or his lawful detention for       the purpose of bringing him before the competent legal authority;              e.     the lawful detention of persons for the prevention of       the spreading of infectious diseases, of persons of unsound mind,       alcoholics or drug addicts or vagrants;              f.     the lawful arrest or detention of a person to prevent       his effecting an unauthorised entry into the country or of a       person against whom action is being taken with a view to       deportation or extradition.         2.    Everyone who is arrested shall be informed promptly, in a       language which he understands, of the reasons for his arrest and       of any charge against him.         3.    Everyone arrested or detained in accordance with the       provisions of paragraph 1 (c) of this Article shall be brought       promptly before a judge or other officer authorised by law to       exercise judicial power and shall be entitled to trial within a       reasonable time or to release pending trial.   Release may be       conditioned by guarantees to appear for trial.         4.    Everyone who is deprived of his liberty by arrest or       detention shall be entitled to take proceedings by which the       lawfulness of his detention shall be decided speedily by a court       and his release ordered if the detention is not lawful.         5.    Everyone who has been the victim of arrest or detention in       contravention of the provisions of this Article shall have an       enforceable right to compensation."         The Commission notes first of all that the applicant's present application concerns a period of time and legal issues which differ from those covered by the European Court of Human Rights' judgment of 29 August 1990. It follows that no issue arises under Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.         In the present case the applicant maintains that his continuing detention from 25 February 1990 to 15 May 1990 did not fulfil any of the conditions set out in Article 5 para. 1 (a)-(f) (Art. 5-1-a, 5-1-b, 5-1-c, 5-1-d, 5-3-e, 5-1-f) and, even assuming that Article 5 para. 1 (c) (Art. 5-1-c) were to apply, the applicant maintains that the length of the detention did not comply with the requirements of Article 5 para. 3 (Art. 5-3) of the Convention.         The Government maintain in particular that the applicant was clearly detained in accordance with a procedure prescribed by law and that the detention was lawful under Norwegian law. They maintain that the requirements of Article 5 para. 1 (c) and (e) (Art. 5-1-c, 5-1-e) were fulfilled and that the circumstances of the case do not otherwise disclose any appearance of a violation of Article 5 (Art. 5) of the Convention.         The Commission has taken cognisance of both parties' submissions. After a preliminary examination thereof the Commission has reached the conclusion that the case raises serious issues as to the interpretation and application of Article 5 (Art. 5) of the Convention and that these issues can only be determined after a full examination of their merits. It follows that the application cannot be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION ADMISSIBLE       without prejudging the merits of the case.   Secretary to the Second Chamber       President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)