S.E. v. NORWAY



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)