CEDH · CASELAW;REPORTS;ENG — 18 octobre 1995

.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                               SECOND CHAMBER                          Application No. 17391/90                                  E (No. 2)                                   against                                   Norway                          REPORT OF THE COMMISSION                        (adopted on 18 October 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 14) . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11 - 14) . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 15 - 63). . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 15 - 59) . . . . . . . . . . . . . . . . . . . . 3              a.     The background                  (paras. 15 - 39) . . . . . . . . . . . . . . . . . 3              b.     The expiry of the security                  measure authorisation                  (paras. 40 - 56) . . . . . . . . . . . . . . . . . 6              c.     Subsequent developments                  (paras. 57 - 59) . . . . . . . . . . . . . . . . .12         B.    Relevant domestic law            (paras. 60 - 63) . . . . . . . . . . . . . . . . . . . .13   III.   OPINION OF THE COMMISSION       (paras. 64 - 101) . . . . . . . . . . . . . . . . . . . . . .17         A.    Complaints declared admissible            (para. 64) . . . . . . . . . . . . . . . . . . . . . . .17         B.    Points at issue            (para. 65) . . . . . . . . . . . . . . . . . . . . . . .17         C.    As regards Article 5 para. 1 of the Convention            (paras. 66 - 96) . . . . . . . . . . . . . . . . . . . .17              a)     Article 5 para. 1 c                  (paras. 78 - 84) . . . . . . . . . . . . . . . . .20              b)     Article 5 para. 1 e                  (paras. 85 - 95) . . . . . . . . . . . . . . . . .21              CONCLUSION            (para. 96) . . . . . . . . . . . . . . . . . . . . . . .23                              TABLE OF CONTENTS                                                                    Page         D.    As regards Article 5 para. 3 of the Convention            (paras. 97 - 99) . . . . . . . . . . . . . . . . . . . .23              CONCLUSION            (para. 99) . . . . . . . . . . . . . . . . . . . . . . .24         E.    Recapitulation            (paras. 100 - 101) . . . . . . . . . . . . . . . . . . .24   DISSENTING OPINION OF Mr. H.G. SCHERMERS. . . . . . . . . . . . . .25   APPENDIX I:       PARTIAL DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . .26   APPENDIX II:      FINAL DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . .39   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.   In the proceedings before the Commission the applicant is represented by Mr. Knut Rognlien, a lawyer practising in Oslo.   3.     The application is directed against Norway. The respondent Government are represented by their Acting Agent, Mr. Sven Ole Fagernæs of the Solicitor General's Office.   4.     From 1978 until 1990 the applicant was almost constantly in prison or in another correctional facility, most of the time not serving an actual prison sentence but in preventive detention (sikring) authorised by the Norwegian courts. One such authorisation expired on 25 February 1990. The application, as declared admissible, concerns the applicant's detention from 25 February 1990 until 15 May 1990. The applicant considers that his detention during this period did not comply with the requirements of Article 5 of the Convention.     B.     The proceedings   5.     The application was introduced on 17 September 1990 and registered on 5 November 1990.   6.     On 2 December 1992 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits in so far as it concerned the issues under Article 5 of the Convention. The remainder of the application under Articles 3 and 6 of the Convention and Article 4 of Protocol No. 7 to the Convention was declared inadmissible.   7.     Following an extension of the time-limit fixed for that purpose the Government's observations were submitted on 15 March 1993. The applicant's observations in reply were submitted on 6 May 1993.   8.     On 31 August 1994 the Commission declared the application admissible.   9.     The text of the Commission's final decision on admissibility was sent to the parties on 27 September 1994 and they were invited to submit further information or observations on the merits as they wished.   The applicant and the Government submitted further observations on 11 November 1994 and 3 February 1995 respectively.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN   12.    The text of this Report was adopted on 18 October 1995 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.     13.    The purpose of the Report, pursuant to Article 31 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.   14.    The Commission's decisions on the admissibility of the application are attached as Appendices I and II. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case         a.    The background   15.    In 1965 the applicant was involved in a traffic accident in which he suffered serious brain damage. He subsequently showed a distinct tendency to become aggressive.   16.    In 1967 he was convicted of offences under sections 227, 228 and 292 of the Norwegian Penal Code (assault and inflicting bodily harm) and sentenced to preventive detention for a maximum period of five years in accordance with section 39 para. 1 (e) of the Penal Code. In an expert psychiatric opinion obtained at that time, he was declared mentally ill (sinnssyk) and he spent the period from May 1967 to July 1972 in mental hospitals.   17.    From 1973 to 1978 the applicant was detained for a period of approximately four years at either Telemark Central Hospital or Reitgjerdet Mental Hospital in accordance with the provisions of the Mental Health Act (lov om psykisk helsevern).   18.    In 1978 the applicant was placed under "judicial observation" (judisiell observasjon) after having assaulted his father. The expert psychiatric opinion obtained at that time concluded that he was not mentally ill but had an underdeveloped and permanently impaired mental capacity (mangelfullt utviklede og varig svekkede sjelsevner) and that there was a clear risk of his committing further criminal offences.   19.    By a judgment of 26 June 1978 the District Court (herredsrett) of Kragerø convicted the applicant of an offence under section 228 of the Penal Code. It sentenced him to sixty days in prison and authorised the use of security measures under section 39 para. 1 (a) to (f) of the Penal Code for a maximum period of five years.   20.    On 3 July 1978 the prosecuting authority decided to detain the applicant in accordance with section 39 para. 1 (e) in a security ward at Ila National Penal and Preventive Detention Institution ("Ila").   21.    On 21 January 1980 the Ministry of Justice decided, pursuant to section 39 para. 1 (a) to (c), to release the applicant on the condition, inter alia, that he resided at his parents' home. Owing to a number of violent incidents, the applicant was however rearrested, and by a judgment of 15 June 1980 the District Court of Kragerø sentenced him to ninety days' imprisonment, which sentence was deemed to have been served in detention on remand.   22.    On 24 July 1980 the Ministry of Justice decided to place the applicant in preventive detention once more at Ila in accordance with section 39 para. 1 (e). On 2 June 1981 he was released to his parents' home under preventive supervision in accordance with section 39 para. 1 (a) to (c).   23.    A number of unfortunate episodes led the Ministry of Justice to decide under section 39 para. 1 (e) to detain the applicant again. He returned to Ila on 17 July 1981.   24.    On 5 February 1982 the Ministry of Justice decided to apply section 39 para. 1 (f) of the Penal Code and on 16 February the applicant was sent to Oslo District Prison. On 4 November 1982 he was transferred to Ullersmo National Prison ("Ullersmo").   25.    Whilst so detained, the applicant was convicted by the District Court of Asker and Baerum on 18 March 1983 and sentenced to six months' imprisonment for assaulting prison staff at Ila and Ullersmo on three occasions. The expert psychiatric 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.   26.    With regard to the question of security measures, 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 he clearly needed psychiatric care and concluded that everything should be done to give him adequate treatment. It accordingly authorised the prosecuting authority to impose security measures under section 39 para. 1 except, however, detention in a security ward or in a prison under subsections (e) and (f).   27.    Having served his sentence the applicant was released on 18 November 1983 and placed in a flat at Kragerø under the surveillance of the local police. However, on 19 December 1983 he was arrested and detained on remand, again charged with offences under sections 227 and 228 of the Penal Code. A further expert psychiatric opinion was obtained. It reached the same conclusion as the two earlier ones.   28.    By judgment of 20 September 1984 the District Court of Kragerø found the applicant guilty on most of the charges brought against him and sentenced him to 120 days' imprisonment. Furthermore, the court authorised the prosecuting authority to use any of the security measures mentioned in section 39 para. 1 of the Penal Code for a maximum period of five years. It found that, having regard to the applicant's almost total lack of self-control in certain situations and to his physical strength, it could not rule out the use by the competent authorities of preventive detention in a prison or in a security ward under section 39 para. 1 (e) and (f), should this prove necessary. Apparently there was such a need, since the applicant remained at Ila.     29.    The applicant appealed to the Supreme Court (Høyesterett) against the decision as regards preventive detention. In a judgment of 12 January 1985 Justice Røstad stated inter alia on behalf of the unanimous court:   (translation)         "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,       as required by section 39 (of the Penal Code), a deviant       character, presents a serious danger regarding new       offences, including threats - section 227. I may add that       it cannot be considered disproportionate to impose security       measures on such a clearly dangerous offender. In my view,       the protection of society requires that the authorities       should be able to impose security measures considered       necessary in order to prevent (the applicant) from       committing further serious offences.         In view of the summing-up of counsel for the defence, I       would point out that I find no basis for arguing 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 ... Convention. It is for       the implementing authorities to ensure that the security       measure takes a form which in practice not only protects       the interests of society but also tries to promote those of       (the applicant), including his need for psychiatric       treatment."   30.    On 7 November 1985 the applicant was transferred from Ila to Ullersmo pursuant to a decision of the Ministry of Justice under section 39 para. 1 (f) of the Penal Code.   31.    On 29 October 1986 he was convicted by the District Court of Asker and Baerum of having attacked a prison officer and was given a suspended sentence of 45 days' imprisonment. On 12 January 1987 he was transferred from Ullersmo to Sunnås Rehabilitation Centre near Oslo in order to receive treatment from a psychologist for fourteen days. Certain examinations were carried out, but the applicant was sent back to Ullersmo after attacking one of the nurses.   32.    On 24 February 1987 the applicant was sent to Reitgjerdet Mental Hospital, where it was established that he was now psychotic. As he thus met the requirements for compulsory placement, he was kept there until 4 December 1987 on which date the hospital concluded that he was no longer psychotic.   33.    The applicant nevertheless stayed at the hospital on a voluntary basis, but after some weeks he became aggressive towards other patients and staff. 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.     34.    With effect from 8 February 1988 the preventive measures were changed. Under section 39 para. 1 (a) to (c) the Ministry of Justice decided that the applicant should be released from Ullersmo, on condition that he lived in a house at Skien under the supervision of the Probation and After Care Service (kriminalomsorg i frihet).   35.    On 19 April 1988 the applicant assaulted the social workers supervising him and the Ministry of Justice decided on the same day to replace preventive supervision under section 39 para. 1 (a) to (c) by detention in a secure institution, at least for a short time, in accordance with section 39 para. 1 (f). The applicant was transferred to Arendal District Prison.   36.    On 19 May 1988 he was released from Arendal District Prison and moved to the house at Skien. 37.    Following several violent incidents the Ministry of Justice decided on 21 July 1988, in accordance with a recommendation from the Probation and After Care Service, that preventive supervision at Skien should cease and that the applicant was to be transferred to Ila under section 39 para. 1 (e).   38.    On 21 October 1988 the Ministry of Justice decided that the applicant should be released and placed under preventive supervision pursuant to section 39 para. 1 (a) to (c) of the Penal Code and he was brought back to the house at Skien. However, as on several occasions he violated the restrictions imposed on him the Ministry decided, in December 1988, to detain him at Ila again in accordance with section 39 para. 1 (e).   39.    On 11 January 1989 the applicant was convicted by the District Court of Kragerø of offences under 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 sentence was deemed to have been served in detention on remand. However, he continued to be detained at Ila under section 39 para. 1 (e) as authorised by the Supreme Court on 12 January 1985 (see para. 28 above).         b.    The expiry of the security measure authorisation   40.    While detained again at Ila the authorities continued their efforts to solve the problems of the applicant's placement. On 22 June 1989 an expert opinion was submitted to the Director of Ila concerning the use of security measures. The expert, psychiatrist H, recommended a project whereby the applicant, under proper surveillance, could remain at liberty. In September 1989 a meeting was arranged at Ila with representatives from the Telemark Mental Hospital, the Telemark County physician (fylkeslegen), the Telemark Probation and After Care Service, the applicant's lawyer, social workers and psychiatrist H. No concrete proposals were adopted as certain points needed further clarification.   41.    On 26 October 1989 the Institution Board (anstaltrådet) at Ila discussed the question of continuing preventive detention in the light of the fact that the court authorisation to that effect would expire on 25 February 1990. Following this meeting the majority of the Board decided to recommend to the Vestfold and Telemark State Prosecutor (Statsadvokaten i Vestfold og Telemark) to request the prolongation of the authorisation to use security measures under section 39 para. 1 (a) - (f) of the Penal Code.         The recommendation was forwarded to the State Prosecutor by letter of 11 January 1990 in which the acting director of Ila inter alia stated as follows:   (translation)         "(The applicant) has now been placed, for approximately one       year, in closed preventive detention (lukket sikring) at       Ila. During this period he has on several occasions acted       aggressively towards the prison officers. During previous       stays in the institution he has attacked employees and       shown that his threats may be serious. Since       23 December 1988 (the applicant) has been placed in a cell       of his own in section G since, for security reasons, it       could not be justified to offer him a place in the open       ward. Furthermore, (the applicant) has not been granted       leave of absence since I fear that due to (his) behaviour       in prison similar incidents might occur during such leave.       I refer to the fact that he has been convicted several       times for assault and threats, most recently by judgment of       (11) January 1989 when he was convicted of similar offences       committed while he was on leave in 1988.       ...       (The applicant) has disclosed a deviant character from a       very young age. His behaviour and conduct do not appear to       have changed essentially since 1965 when he suffered brain       damage. In 1988 he was on three occasions transferred to       Skien under preventive supervision but every time it was       discontinued due to circumstances relating to (the       applicant). Therefore I consider it probable - or rather       very likely - that he will commit new offences involving       violence if he were to be released when the security       measure authorisation expires. The possibility also exists       that he would then commit far more serious offences than       those of which he has previously been convicted.         It has turned out to be impossible to make other       arrangements which also (the applicant) can accept. As       recently as 9 March and 23 May 1989 the Ministry of Justice       refused (the applicant's) requests to replace the detention       with preventive supervision. The arrangement proposed by       psychiatrist (H) appears to be more secure, but       considerably more expensive than the previous ill-fated       arrangements. ...         However, today there is no adequate alternative to       continuing preventive detention at Ila. Accordingly, I       would recommend renewed preventive detention upon expiry of       the security measure authorisation on (25) February 1990.       ..."   42.    On the basis of the above recommendation the Vestfold and Telemark State Prosecutor "filed charges" (sette under tiltale) against the applicant by "indictment" (tiltalebeslutning) of 2 February 1990 in order to obtain the Kragerø District Court's authorisation, pursuant to section 39, para. 3, second sentence, of the Penal Code, to prolong by three years the period during which security measures of the Penal Code could be used.   43.    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.   44.    On 12 February 1990 the District Court considered the question of detention on remand. The applicant maintained that a detention on remand beyond 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 to use security measures would expire.   45.    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,       para. 3, of the Penal Code.       ...       In addition section 171, para. 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,       para. 1, is fulfilled. In this case it is the requirement       no. 3 in section 171, para. 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 that date.       ...       The Court finds that there is reason to grant the       prosecutor's request, cf. (the above-mentioned provisions       of the Code of Criminal Procedure).         The Court finds it 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 regarding the previous period. Since 1985 he has       been convicted twice for violations of sections 227       and 228. 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 security measures against (the applicant) - for one       or more years and with one or more of the measures       mentioned in section 39, para. 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       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 use of security measures to be       implemented at Skien which should work better than the last       programme and which will provide him a much better life       than during the last 14 months."   46.    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 of which he has already been       convicted. The requirement in law that the court shall fix       a maximum period for security measures 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 security measure period has expired.       Accordingly, there is a need for detention on remand and a       very considerable probability of 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,       in the High Court's view, 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 a relapse into crime.         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."   47.    The applicant appealed against this decision to the Supreme Court. On 16 March 1990 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) rejected the appeal. In its decision the Court stated:   (translation)         "In accordance with section 39, para. 3, second sentence,       (of the Penal Code) the court must in cases involving       security measures fix a maximum period beyond which no       measures can be taken without the court's permission. A       decision concerning the prolongation of this authorisation       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 the 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, para. 3, second sentence.         It follows from this that the High Court did not base its       decision on an incorrect interpretation of Article 4       para. 1 of Protocol No. 7 to the Convention when it assumed       that a prolongation of the period of preventive measures in       accordance with section 39, para. 3, second sentence, of       the Penal Code was 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."   48.    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.   49.    On 20 March 1990 the District Court prolonged the detention until 23 April 1990 stating as follows:   (translation)         "The basis for the continuing detention - both factual and       legal - is the same as when the Court examined the       detention question on 12 February 1990, cf. also the       decisions of the High Court and the Appeals Selection       Committee of the Supreme Court.         The Court does not consider the extension to be       disproportionate either. With reference, among others, to       the recommendation of the Ila Institution Board and       psychiatrist (H's) submissions during the court session of       12 February 1990, it is likely that the case will result in       a prolongation of the authorisation to use security       measures against (the applicant). The fact that the       question of the prolonged use of security measures ought to       have been decided before the expiry of the period       authorised cannot constitute a reason for release. ..."   50.    The applicant appealed against this decision to the Agder High Court.   51.    On 22 March 1990 the expert opinion was submitted to the Kragerø District Court. It concluded as follows:   (translation)         "1. It is questionable whether (the applicant) can be       regarded as a person with an underdeveloped mental       capacity.       2. (The applicant) suffers from a permanently impaired       mental capacity.       3. (The applicant) is not in a state of insanity during the       examination and there is no sign of reduced consciousness.       4. Prolonged authorisation to use security measures ought       not to be granted and in case it is, it ought to exclude       detention in a prison or in a security ward."   52.    On 30 March 1990 the Agder High Court upheld the District Court's decision of 20 March 1990. The High Court stated as follows:   (translation)         "The Court finds that there is a great risk that (the       applicant) will commit criminal acts which are punishable       by imprisonment for a term exceeding six months if he were       to be released now and that, therefore, continued detention       on remand is necessary until the question of prolonging the       authorisation to use security measures can be examined in       court. The Court disagrees with counsel for (the applicant)       that it is unlikely that such prolongation will be granted.       A release without having examined the question of       authorising the use of security measures appears to be so       questionable, in the light of the risk of new criminal       acts, that detention on remand until the case may be       examined does not appear to be a disproportionate measure.       Nor does it appear to be contrary to Article 5 para. 3 of       the European Convention on Human Rights. The Court also       refers to the fact that the prolongation of the detention       on remand is based on the need to re-schedule the case as       it will be necessary to replace the judge ..."   53.    On 19 April 1990 the Appeals Selection Committee of the Supreme Court rejected the applicant's appeal against the above decision of the High Court.   54.    On 20 April 1990 the Kragerø District Court extended the period of detention on remand by four weeks, until 21 May 1990. The Court referred in substance to its previous decisions of 12 February and 20 March 1990.   55.    On 25 April 1990 the Medico-Legal Council (Den rettsmedisinske Kommission) rejected the medical expert opinion of 22 March 1990 and requested the submission of a revised opinion in the case.   56.    On 14 May 1990 the Prosecutor General (Riksadvokaten) withdrew the request for a prolongation of the authorisation to use security measures against the applicant. He was accordingly released on 15 May 1990.         c.    Subsequent developments   57.    During the months of July, August and September 1990 the applicant committed several criminal acts of threats and assault. As a consequence he was arrested on 24 September 1990 and detained on remand until 15 November 1990. By judgment of 13 February 1991 the applicant was convicted inter alia of violations of sections 227 and 228, illegal threats and assault, and sentenced to seven months' imprisonment. Furthermore, the District Court authorised the use of security measures pursuant to section 39 para. 1 (a) to (f) of the Penal Code for a period of three years. This judgment was upheld by the Supreme Court on 1 November 1991, excluding only the security measure set out in section 39 para. 1 (c).   58.    In the meantime the applicant had been arrested again, on 16 May 1991, and detained on remand. By judgment of 11 July 1991 he was sentenced to an additional ninety days' imprisonment for further violations of inter alia sections 227 and 228 of the Penal Code. He was released on 13 July 1991. He served the remaining part of the sentence from 14 January until 16 April 1993.   59.    By judgment of 29 June 1994 the applicant was sentenced by the Kragerø District Court to ten months' imprisonment having been found guilty on 32 counts of assault and threats from December 1991 until April 1994. It does not appear that the applicant appealed against this judgment. Whereas the applicant has been called to serve the pr