AS TO THE ADMISSIBILITY OF

                      Application No. 11701/85
                      by E.
                      against Norway


        The European Commission of Human Rights sitting in private
on 12 May 1988, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A. WEITZEL
                  H. DANELIUS
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 13 May 1985 by
E. against Norway and registered on 16 August 1985 under file No.
11701/85;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having regard to the information and observations submitted by
the respondent Government on 7 March 1986, 16 February 1987 and
7 April 1988, and the information and observations submitted by the
applicant on 6 June 1986, 31 March 1987 and 8 April 1988;

        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.  When
introducing the application the applicant was placed at Ila National
Penal and Preventive Detention Institution (Ila Landsfengsel og
Sikringsanstalt) hereafter called Ila.  Before the Commission he is
represented by his lawyer, Mr.  Knut Rognlien, Oslo, Norway.

A.      The particular facts of the case

        In 1965 the applicant was involved in a traffic accident which
caused serious brain damage.  This has subsequently led to a distinct
tendency to become aggressive.

        In 1967 the applicant was convicted of having violated
Sections 227, 228 and 292 of the Norwegian Penal Code (assault and
inflicting bodily harm) and sentenced to preventive detention
(sikring) for a maximum period of five years in accordance with
Section 39 para. 1 a-e of the Penal Code.  In an expert opinion
obtained at that time, the applicant was declared mentally ill
(sinnssyk).  Accordingly, during the five year term of preventive
detention he spent prolonged periods in psychiatric hospitals.

        In 1978 the applicant was subjected to "judicial observation"
(judisiell observasjon) in relation to an episode of violence against
his father.   The expert opinion, now obtained, concluded that the
applicant was not mentally ill but should be regarded as a person with
underdeveloped and impaired mental capacity (mangelfullt utviklede og
varig svekkede sjelsevner).  The risk of further criminal offences was
therefore imminent.

        By judgment of 26 June 1978 pronounced by the District Court
of Kragerø (Kragerø herredsrett) the applicant was sentenced to 60
days in prison and subsequent preventive detention under Section 39
para. 1 a-f of the Penal Code for a maximum period of five years due
to the incident involving violence against his father as mentioned
above.  In its judgment the Court pointed out that the preventive
detention in a prison should only be used as an emergency measure
since such detention was likely to have a negative influence on the
applicant.  Such detention should therefore, according to the Court,
only be imposed insofar as it was necessary to protect the
applicant's family and himself from aggressive actions which could
easily lead to very serious incidents.  The Court expected that the
competent social authorities would take the necessary measures in
order to avoid prolonged stays in prison.

        The 60 days of imprisonment imposed by the Court on 26 June
1978 had already been served in detention on remand but as a consequence
of the above judgment the applicant was sent to Ila in accordance with
Section 39 para. 1 a-f on 4 July 1978 for the first time.  Before
sending him there, the prosecuting authorities had requested the Telemark
Mental Hospital to receive the applicant.  However, the hospital
refused, stating that the applicant had already spent nearly four and
a half years there, alternately in open and closed wards.  It had,
however, been impossible to give him any treatment at all.  On the
contrary, he had been a threat both to the staff and to the other
patients.

        The question of whether the detention at Ila should continue
was taken up by the Ministry of Justice as a consequence of the
applicant's request of September 1978 to be released under protective
surveillance (sikring i frihet).  On 18 September 1978 the Director
of Ila informed the Ministry of Justice that although it would not be
easy to find an appropriate solution to the applicant's problems it
would not seem correct to place him in a prison.

        On 5 October 1978 the Ministry decided nevertheless that the
applicant should stay there until further notice in accordance with
Section 39 para. 1 e.

        On 10 January 1979 the applicant's lawyer applied to the
Ministry of Justice for the applicant's release from the detention at
Ila to protective surveillance in accordance with the court judgment
of 26 June 1978.  The application was supported by the Director of Ila
and it appears that the applicant, on 24 April 1979, was released from
Ila under a leave of absence scheme with assigned residence at Skottun
near Skien and subjected to restrictions under Section 39 para. 1 a-c.
However, after approximately one week he was back at Ila since he did
not comply with the conditions imposed.  A similar subsequent leave of
absence from Ila, with assigned residence at his parents' place at
Kragerø also failed and the applicant was brought back to Ila by the
police on 16 August 1979.

        It furthermore appears that the applicant was transferred, on
1 December 1979, to Telemark Mental Hospital, which provided him with
a flat and work under a supervisory regime ("vernet arbeid").  However,
on 1 January 1980 he was sent back to Ila because he behaved contrary
to the conditions for treatment, on which he and the hospital had
agreed.

        On 21 January 1980 the Ministry of Justice decided to release
the applicant with assigned residence at his parents' home.   He
arrived there on 4 February 1980.  At the end of February 1980,
however, the applicant assaulted a person, in March 1980 he assaulted
his father and in April 1980 threatened his parents so that they were
forced to leave their home.  Due to these incidents the applicant was
arrested and detained on remand.  By judgment of 15 June 1980 the
District Court of Kragerø sentenced him to 90 days' imprisonment,
which sentence was considered to have been served in detention on
remand.  During the remand period the applicant was sent to Telemark
Mental Hospital twice but returned to prison since the hospital could
not take care of him because he threatened the staff and refused to
take the prescribed medicine.

        On 24 July 1980 the Ministry of Justice decided to place the
applicant in preventive detention again at Ila in accordance with
Section 39 para. 1 e.  He arrived there on 29 July 1980.  Whilst in
preventive detention at Ila the applicant accepted to be treated with
medicine and he was transferred to a hospital on whose premises he got
his own flat (hybel).  He was also granted a number of permissions to
leave the premises.  On 2 June 1981 the applicant was again released
to his parents' home under protective surveillance in accordance with
Section 39 para. 1 a-c but after a number of unfortunate episodes the
Ministry of Justice on 1 July 1981 decided to detain the applicant at
Ila again under Section 39 para. 1 e.  The applicant was thus detained
there again on 17 July 1981.

        On 5 February 1982 the Ministry decided to apply Section 39
para. 1 f and the applicant was transferred to the district prison of
Oslo on 16 February 1982.

        He was subsequently transferred to Ullersmo National Penitentiary
where he arrived on 4 November 1982.

        By judgment of 18 March 1983 the applicant was convicted by
the District Court of Asker and Bærum (Asker og Bærum herredsrett) and
sentenced to six months' imprisonment for having, in three cases,
assaulted prison staff whilst in preventive detention at Ila and
Ullersmo National Penitentiary.  As before the psychiatric expert
concluded that the applicant was not mentally ill but suffered from an
underdeveloped and impaired mental capacity.  With regard to
preventive detention the Court pointed out that the information
available showed that this kind of detention in a prison or similar
institution was inappropriate and had a destructive influence on the
applicant.  The Court found that the applicant clearly belonged to the
category of persons who needed psychiatric care and thus found that
everything should be done to give the applicant adequate treatment.
In addition to the six months' prison sentence the Court authorised
the competent authority to impose protective measures under Section 39
para. 1, except, however, detention in a prison or similar institution
as set out in Section 39 para. 1 e and f.

        Having served his six months' prison sentence the applicant
was accordingly released on 18 November 1983 and placed in an
apartment at Kragerø under the surveillance of the local police.  On
19 December 1983, however, he was arrested again and detained on
remand charged with a new violation of Sections 227 and 228 of the
Penal Code.  A new expert opinion on the applicant's mental capacity
was obtained but it reached the same conclusion as the two preceding
opinions mentioned above.  During his detention on remand he was
at Reitgjerdet Mental Hospital from 4 to 26 January 1984.

        The applicant remained in detention on remand at Ila from
26 January 1984 until 20 September 1984 when the District Court of
Kragerø in its judgment of the same date found the applicant guilty of
most of the charges brought against him and sentenced him to 120 days'
imprisonment which was considered to have been served in detention on
remand.  Furthermore, the Court authorised the prosecuting authority to
impose preventive measures under Section 39 para. 1 a-f for a maximum
period of five years.  The Court explained thoroughly the extent of
the preventive measures and referred to the earlier decision in this
respect.  The Court found that it would undoubtedly be dangerous to
release the applicant, having regard to his almost total lack of self-
control in certain situations and his physical strength.  The Court
would not, therefore, rule out that the competent authorities could
use preventive detention in a prison or similar institution under
Section 39 para. 1 e and f should this prove necessary.  This was
apparently found necessary since the applicant remained at Ila.

        The applicant appealed against the decision as to the
preventive detention to the Supreme Court.  However, on 12 January
1985 the Supreme Court upheld the decision.

        Whilst the applicant's criminal case was pending, ending with
the above Supreme Court judgment, he stayed at Ila.  As indicated in
the above judgment a programme was worked out for his placement in
Telemark but he refused it due to the fact that he would be forced to
take certain medicine (depotmedisinering).  Therefore the applicant
remained at Ila also after the judgment.  From 1 January to 30
September 1985 he was given one-day leaves 27 times and during the
same period he was placed in solitary confinement five times due to
threats and aggressive behaviour.  On 30 September 1985 the applicant
attacked a prison officer for which reason he was placed in a security
cell.  On 7 October 1985 he was transferred to solitary confinement.

        On 7 November 1985 the applicant was transferred to Ullersmo
National Penitentiary.

        After the applicant's arrival at Ullersmo the authorities
looked for alternative places outside the prison.  He was now prepared
to fulfil the conditions laid down in the Telemark project mentioned
above and on 27 November 1985 an application was lodged with the
hospital which was supposed to supervise this.  On 13 December 1985
the hospital responded that it was in principle willing to take over
the responsibility for the applicant, but it was impossible until a
department for difficult patients had been set up.

        Previously, on 23 November 1985, Ullersmo submitted an
application to Reitgjerdet Mental Hospital, which by letter of 12
December 1985 answered that it was prepared to accept the applicant
for treatment.  However, according to the present general regulations
applicable to that institution, only patients who are "seriously
mentally deranged" may be admitted (Temporary General Directions for
Reitgjerdet Hospital of 1 July 1982, Section 2).  As the applicant did
not fall within this group of persons, Reitgjerdet asked the Public
Health Department of the Ministry of Social Affairs for a dispensation.
On 26 February 1986 the Public Health Department declared that it was
legally precluded from making exceptions from the general regulations.
Nevertheless, the applicant spent 23 days at Reitgjerdet mental
hospital in May 1986.  However, he was sent back to Ullersmo since the
competent authorities found that the requirements for staying at the
hospital were not fulfilled.  The applicant was not psychotic in their
opinion.

        By judgment of 29 October 1986 the applicant was convicted by
the District Court of Asker and Bærum and given a suspended sentence
of 45 days' imprisonment for the attack on a prison officer, which, as
mentioned above, occurred on 30 September 1985.

        On 12 January 1987 the applicant 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 returned to Ullersmo due to an
attack on a nurse.  On 24 February 1987 the applicant was transferred
to Reitgjerdet Mental Hospital for certain examinations which showed
that he was psychotic.  He was therefore kept at the hospital on a
compulsory basis.  On 4 December 1987, the hospital (which is now
called Trøndelag Psychiatric Hospital) decided that he could no longer
be considered psychotic but he remained there on a voluntary basis.

        After some weeks, the applicant became aggressive towards other
patients and the staff.  He repeatedly attacked a nurse, seizing her
by the throat and threatening to kill her.  As a consequence, he could
no longer stay in the hospital's ordinary ward.  As he refused to be
placed in the ward for difficult patients, he was sent back to
Ullersmo where he stayed for one month.  In the meantime, the
authorities pursued their efforts to find a solution under the
auspices of Telemark Mental Hospital.  With effect from 8 February
1988, the preventive measures were changed.  The applicant was no
longer to stay at Ullersmo, but was assigned residence in a house in
the town of Skien under the supervision of the Probation and Aftercare
Service (Kriminalomsorg i frihet).  The applicant was there under the
daily supervision of two social workers from Telemark Mental Hospital
which is responsible for his social training.

        By letter of 7 May 1988 the applicant's representative
submitted the following:

        On 19 April 1988 the Ministry of Justice decided to detain the
applicant at Arendal District Prison in accordance with Section 39
para. 1 f of the Penal Code since he had allegedly behaved aggressively
towards the two social workers.

        On 27 April 1988 the applicant's representative instituted
proceedings in the City Court of Oslo (Oslo byrett) maintaining that
the applicant should be released since the decision to detain him was
null and void.  At present this question is pending before the City
Court.


B.      Relevant domestic law and practice

I.      The legal basis for preventive measures is Section 39 of the
Penal Code of 22 May 1902.  Section 39 para. 1 a - f reads as follows:

        "1.     If an otherwise punishable offence is committed
        in a state of mental disorder or impairment or a punishable
        offence is committed in a state of unconsciousness which
        follows from a self-inflicted intoxication, or in a state of
        momentary reduction of the consciousness, or by a person with
        an underdeveloped or impaired mental capacity, and there is a
        danger that the offender, due to this state of mind, again
        will commit such an offence, the court may decide that the
        prosecuting authority, as a security measure, must

        a.      assign him or refuse him a particular residence

        b.      place him under surveillance by the police or
                a person appointed for this purpose and order
                him to report to the police or the appointed
                person at certain hours

        c.      forbid him to take intoxicating articles

        d.      place him in secure private care

        e.      place him in a psychiatric hospital, health resort,
                nursing home or security ward

        f.      keep him in preventive detention."

        Preventive measures are not regarded as punishment, but as
extraordinary means necessary to protect society from psychologically
abnormal recidivists.  Preventive measures may be used (instead of
punishment) against insane offenders or those who suffered a temporary
lapse from consciousness, but also (in addition to punishment)
against certain other groups, inter alia persons (like the
applicant) with underdeveloped or permanently impaired mental
capacity.  In any case, the person concerned must have committed an
offence, and it is also a general condition that there be a danger
that, because of his condition, he will repeat such an act.

        It is for the court to decide whether the conditions for
preventive measures are fulfilled and, if need be, to authorise the
use of the measures listed in para. 1 a-f (the first alternatives
being the least far-reaching).  The decision may be taken as part of a
criminal case, or as a separate case, but at any rate in accordance
with the general provisions of Act No. 25 of 22 May 1981 relating to
criminal procedure (Straffeprosessloven).  Under Section 248 of that
Act, a court of examining and summary jurisdiction ("forhørsretten"),
applying a simplified procedure, may not decide on cases concerning
preventive detention.

        If the court authorises the use of preventive measures, it
shall fix a maximum period beyond which the measures cannot be
upheld without its consent (Section 39 para. 4 second subparagraph
of the Penal Code).  In practice, the courts are very seldom asked for
a prolongation of the stipulated period.  The person concerned will
therefore usually be released before the time-limit expires, or at
that time.

        The implementation of and choice between preventive measures
lies with the prosecuting authority.  However, once that decision has
been taken, it is for the Ministry of Justice to terminate, resume or
alter the measures (Section 39 para 4 second subparagraph of the Penal
Code).  The measures shall be terminated when they are no longer
regarded as necessary, but may be resumed if there is reason to do so
(Section 39 para. 3 first subparagraph).

       The competence of the Ministry of Justice is further regulated
by the regulations of 1 December 1961 concerning the implementation
of preventive measures.  According to Section 11 the question of
whether to terminate or alter the kind of measures imposed shall be
considered regularly by the Ministry of Justice, and at least once a
year.  A report from a medical specialist shall usually be obtained
before a decision is made with regard to changing preventive
measures (Section 39 para 4 third subparagraph of the Penal Code).
The Ministry will also consider the question of terminating or
changing the measures when requested by the person concerned.  In
practice, the appropriateness of preventive detention in a particular
case may be considered several times a year.  If a person is subjected
to such detention, a medical report will be included in his records.

        The decision made by the Ministry is subject to appeal to
the King in Council.  The appeal must be submitted within three weeks
from the date on which the party concerned was notified of the decision,
cf.  Section 29 of the Public Administration Act of 10 February 1967
(Forvaltningsloven).  It follows from Section 27 of the Act that the
person concerned shall be informed of the administrative decisions and
from Section 12 of the Act it follows that he has the right to the
assistance of a lawyer.

        If the person subjected to preventive measures does not accept
the decision of the King in Council, he may bring his case before the
courts.  The courts may examine the administrative decision according
to the general unwritten constitutional principles of judicial supremacy.

II.     Act No. 2 of 28 April 1961 relating to mental health protection
(Lov om psykisk helsevern) regulates the conditions for hospitalisation
in mental hospitals.  Insane persons, i.e. psychotic persons or persons
suffering from certain serious malfunctions bordering on the
psychotic, may be committed to a mental hospital without their consent.
They may be detained as long as they are considered to be "insane" and
in need of treatment e.g. to prevent injury to themselves or to other
persons.  Hospitalisation without the person's consent may be ordered
at the request of his closest relatives, of his guardian or of a
public authority (Section 5).

        Other persons may, when certain conditions are fulfilled, be
kept in a mental hospital without their consent for a maximum period
of three weeks (Section 3).

        In both cases, the superintendent of the hospital must agree
to receive the person.  This is also the case where the transfer of a
person is requested by the Ministry of Justice in order to implement
preventive detention in mental hospitals.

        Even if a person is sentenced to preventive detention, he
cannot be detained in a mental hospital against his own will unless he
qualifies as "insane" within the meaning of the Mental Health Care Act.

III.    Chapter 33 of the Code of Civil Procedure of 13 August 1915
(tvistemålsloven) relates to review of administrative decisions
concerning deprivation of liberty and other enforcement measures and
applies to persons who are compulsorily committed to mental hospitals
regardless of whether they are subjected to preventive measures or
not.  Chapter 33 only applies when this is explicitly stated in
statutory provisions.  It follows from Section 9 A of the Mental
Health Care Act that a decision of the Board of Inspection
(kontrollkommisjonen) to commit a person to hospital or to refuse to
discharge him may be brought before the courts.  The courts may
control every aspect of the administrative discretion, including
matters of pure expediency.  Having recourse to psychiatric experts,
the courts will decide whether the conditions for compulsory committal
to hospital under Section 5 of the Mental Health Care Act are
fulfilled, in particular whether the person concerned is suffering
from a serious mental illness.  Chapter 33 applies to a person
subjected to preventive measures under Section 39 para. 1 e of the
Penal Code when he is compulsorily committed to a mental hospital in
accordance with Section 5 of the Mental Health Care Act.  It is not
applicable, however, to a person arguing that a decision of the
Ministry of Justice to impose preventive measures under Section 39
para. 1 f of the Penal Code (preventive detention) is invalid.


COMPLAINTS

        The applicant has been in prison more or less constantly since
1978, most of the time not serving an actual prison sentence but in
preventive detention under Section 39 para. 1 f of the Penal Code.
During his period of detention he has been in solitary confinement for
very long periods of time and by judgment of 12 January 1985 the
Norwegian Supreme Court has authorised the authorities to keep the
applicant detained until 1990, if necessary.  This treatment, the
applicant alleges, is inhuman or degrading and thus in conflict with
Article 3 of the Convention.  The judgment itself might not be
contrary to the Convention, but the treatment or rather the lack of
treatment is.  During the long periods of detention the authorities
did not establish adequate remedies in order to help the applicant.
His case did not fit any ordinary social programme and, as indicated
again and again, he did not belong in a prison either.  However, the
result was that he spent an intolerable period of time in solitary
confinement.


PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 13 May 1985 and registered
on 16 August 1985.

        On 8 January 1986 the respondent Government were requested,
pursuant to Rule 40 para. 2, sub-para. a of the Commission's Rules of
Procedure, to submit certain information as to the facts of the case.

        This information was submitted by the Government on 7 March
1986 and the applicant's comments in reply were submitted on 6 June
1986.

        The Commission decided on 13 October 1986 to invite the
respondent Government to submit before 9 January 1987 written
observations on the admissibility and merits of the above complaint.
Furthermore, the respondent Government were requested to explain
whether the applicant, when detained by administrative decision under
Section 39 of the Penal Code, could rely on an appropriate procedure
allowing a court to determine the lawfulness of this measure as
guaranteed by Article 5 para. 4 of the Convention.

        On 8 January 1987 the respondent Government requested and were
granted an extension of the time-limit until 9 February 1987.

        The Government's observations were submitted on 16 February
1987.  The applicant's observations in reply were submitted on 31
March 1987.

        Legal aid under the Addendum to the Commission's Rules of
Procedure was granted to the applicant on 13 March 1987.

        On 7 October 1987 the Commission decided to invite the
parties to a hearing on the admissibility and merits of the
application.

        At the hearing, which was held on 7 March 1988, the parties
were represented as follows:

        The Government

Mr.  Erik MØSE, lawyer, Attorney General's Office, agent.
Mr.  Robert W. KNUDSEN, Minister-Counsellor, Ministry of Foreign Affairs,
co-agent.
Ms.  Kari MELING, Head of Division, Ministry of Justice, adviser.
Ms.  Mette WALAAS, First Counsellor, Directorate of Health, adviser.
Mr.  Roger ØSTBØL, Counsellor, Ministry of Social Affairs, adviser.
Mr.  Carsten HELGEBY, Head of Division, Ministry of Foreign Affairs,
adviser.

        The applicant

Mr.  Knut ROGNLIEN, lawyer, applicant's representative.
Mr. Øyvind SOLBERG, assisting lawyer.

        Following the hearing the Commission decided to adjourn the
examination of the application, as far as it concerned the issue under
Article 5 para. 4 of the Convention, and declared the remainder of the
application inadmissible.  It was furthermore decided to obtain from
the parties further observations on the issue under Article 5 para. 4
of the Convention.

        The Government's further observations were submitted on 7 April
1988 and the applicant's further observations were submitted on 8 April
1988.


SUBMISSIONS OF THE PARTIES regarding Article 5 para. 4 of the Convention.

        The Government

        The Government observe that the decision to authorise
preventive detention is taken by a court.  The judgment is subject
to appeal to the Court of Appeal and the Supreme Court.

        The prosecuting authority has the initial competence to
implement preventive measures in accordance with the judgment.
Subsequently, the question of whether to terminate, alter or resume
the measures is considered by the Ministry of Justice at least once a
year.  Its decision is subject to appeal to the King in Council.  The
person concerned shall be informed of the administrative decisions and
has the right to be assisted by counsel.  The administrative decision
may be brought before the courts.  The judgment of the court of first
instance may be reviewed by the Court of Appeal and the Supreme Court.

        According to the case-law under Article 5 para. 4, a person of
unsound mind compulsorily confined in a psychiatric institution for an
indefinite or lengthy period is in principle entitled, at any rate
where there is no automatic periodic review of a judicial character,
to take proceedings at reasonable intervals before a court to put in
issue the "lawfulness" - within the meaning of the Convention - of his
detention, cf. inter alia Eur.  Court H.R., Winterwerp judgment
of 24 October 1979, Series A No. 33.

        It is clear that the applicant must be considered to be a
person of "unsound mind" within the meaning of Article 5 para. 1 e,
and that he is deprived of his liberty as a consequence of this fact.
The principle of periodic judicial review embodied in Article 5
para. 4 is therefore applicable in the present case.

        The Norwegian system of preventive detention is in conformity
with this principle.  It follows from Section 11 of the regulations
concerning the use of preventive measures that the Ministry of Justice
shall consider the question of whether to terminate or alter the
measures imposed at least once a year.  Moreover, the question will be
considered following a request from the person concerned.  The
administration's decision is subject to judicial review by the
courts.  The applicant therefore has the opportunity to bring the
question of further preventive detention before the courts once a year
and, in addition, whenever his application for changing the measures
is rejected by the administration.

        The applicant has not availed himself of this opportunity.
Nevertheless, the courts have assessed the necessity of preventive
detention in connection with judgments authorising preventive measures
in 1967, 1978, 1980, 1983, 1984 (District Court) and 1985 (Supreme Court).

        Consequently, it is the opinion of the Government that the
requirements of regular judicial control in Article 5 para. 4 are
fulfilled.

        It also follows from Article 5 para. 4 that the courts shall
have the competence to decide on the lawfulness of the detention.
According to case-law, the periodic review should be wide enough to
bear on those conditions which, under the Convention, are essential
for the "lawful" detention of a person.  However, the provision does
not embody a right to judicial control of such scope as to empower the
court, on all aspects of the case, including questions of pure
expediency, to substitute its own discretion for that of the decision-
making authority, cf.  Eur.  Court H.R., van Droogenbroeck judgment of
24 June 1982, Series A No. 50.

        Whenever a decision has been taken, a person deprived of his
liberty has the possibility to bring the matter before the courts in
accordance with the unwritten constitutional principles of judicial
supremacy.  Consequently, there can be no doubt that the Norwegian
system is in conformity with the principle of periodic judicial review.

        If the case is brought before a court, the court will ascertain
that the decision to implement the security measure at issue falls
within the authorisation given in the initial judgment.  It will also
consider whether the requirements of substantive and procedural legal
provisions are complied with.  At this stage the principle stated in
Section 39 para. 3 of the Penal Code will be of particular importance.
According to that provision, preventive measures shall be terminated
when they are "no longer regarded as necessary".  If, for example, the
court would find - on the basis of medical expertise - that the person
concerned is no longer of unsound mind or does not any more represent
a danger to society, an administrative decision to impose preventive
measures would be declared invalid; the reason being that a danger
would no longer exist that the person concerned will repeat a
punishable act, which is the purpose of imposing preventive measures
under Section 39 para. 1.

        The competence of the court is limited in relation to the
administrative discretion, such as an assessment of the most expedient
choice between alternative preventive measures.  This limitation is
based on the presumption that the administration, which is continuously
following the development of the convicted person, is more qualified
to decide upon these matters than the courts.  Moreover, a system where
the administrative authorities have the main responsibility for
implementing preventive measures opens for considerable flexibility
and enables the administration to adapt the measures according to the
development of the convicted person.

        On the other hand, the administrative discretion is not
unlimited.  If the decision can be regarded as abuse of power, for
instance if it is clearly unreasonable in relation to the person
concerned, the court may conclude that the decision is invalid.

        This principle gives the courts a certain possibility of
controlling the discretionary parts of administrative decisions as
well.  The decision has to be based on relevant considerations, which
shall be given the importance they deserve.  A decision may also be
found invalid because it is clearly unreasonable in relation to the
person concerned, for example if the Ministry decides to impose
preventive measures which are obviously much more stringent than
necessary.

        Furthermore the courts will consider any allegation that the
administrative decision is not in conformity with the Convention.
Consequently, the Convention would be an important source of law in
the interpretation and application of the substantive and procedural
legal provisions.

        The legal basis of the review of administrative decisions
concerning deprivation of liberty and other enforcement measures is
Chapter 33 of the Code of Civil Procedure of 13 August 1915.  In the
context of the present case it should be noted, however, that this
Chapter applies to persons who are compulsorily committed to mental
hospitals.  Whether they are subjected to preventive measures or not
is irrelevant.  Consequently, a decision of the Ministry of Justice to
detain a person in pursuance of Section 39 f of the Penal Code is not
subject to court review under Chapter 33.

        Chapter 33 was inserted into the Code of Civil Procedure in
1969.  It applies to legal proceedings which, pursuant to special
statutory provisions, may be instituted against the public authorities
for the review of administrative decisions concerning deprivation of
liberty or other administative coercive measures.  According to Section
482 of the Act, the court shall, within the framework of the relevant
Act, examine all aspects of the case.  The court shall not be bound by
the parties' contentions or allegations.  Consequently, the scope of
judicial review under Chapter 33 differs from the general system of
court control.

        Chapter 33 only applies when it is explicitly stated in
statutory provisions.  It follows from Section 9 A of the Mental
Health Care Act that a decision of the Inspection Board
(Kontrollkommisjonen) to commit a person to hospital or to refuse to
discharge him may be brought before the courts.

        Consequently, in cases relating to compulsory committal to or
retention in a mental hospital, the courts may control every aspect of
the administrative discretion, including matters of pure expediency.
Having recourse to psychiatric experts, the court will decide whether
the conditions for compulsory committal to hospital under Section 5 of
the Mental Health Care Act are fulfilled, in particular whether
the person concerned is suffering from a serious mental illness.  The
underlying reason for this special system of court review is that
compulsory detention in a mental hospital is an extremely far-reaching
encroachment upon the private sphere of the individual.

        It follows from Norwegian case-law that Chapter 33 is
applicable to a person subjected to preventive measures under Section
39 para. e when he is compulsorily committed to a mental hospital in
accordance with Section 5 of the Mental Health Care Act.  The person
concerned may therefore avail himself of this judicial procedure
provided that he has complained to the Inspection Board.

        To sum up: a person detained in prison under Section 39 f of
the Penal Code may bring his case before the courts in accordance with
the general principles of judicial review.  Chapter 33 of the Code of
Civil Procedure is not applicable to a person arguing that a decision
of the Ministry of Justice to impose preventive measures under Section
39 para. 1 f is invalid.  However, should he under Section 39 para.
1 e be compulsorily committed to hospital in accordance with Section 5
of the Mental Helth Care Act, Chapter 33 applies to the decision of the
Inspection Board.

        If a court finds that a decision of the Ministry of Justice
under Section 39 para. 1 f is not lawful, that decision will be
declared invalid.  The person concerned will then be subjected to the
measures applied before the invalid decision was taken, for instance
preventive measures outside the institution under Section 39 para. 1
a-c.  The Ministry will be legally excluded from making a new decision
under Section 39 para. 1 f as long as the court's reason for declaring
the decision invalid applies.

        To the Government's knowledge, there is no case-law whereby a
court has overruled any decision of the Ministry of Justice under
Section 39 taken in connection with its annual review or as a
consequence of an initiative from a person subjected to preventive
measures.  However, the court's competence to do so follows from the
established constitutional doctrine of judicial supremacy.  And the
crucial question under Article 5 para. 4 is whether a person deprived
of his liberty has the right to bring his case before the courts and
not whether he in fact decides to take proceedings to which he is
entitled.

        In the present case, there has been a remedy available which in
the Government's opinion fulfils the requirements of Article 5 para. 4.
Any doubt as to this would have been clarified if the applicant had
used this remedy, which he has not.  Article 26 is therefore applicable
in the present case.

        In the Government's view the system of court review in
relation to the implementation of preventive measures is in conformity
with Article 5 para. 4 of the Convention.

        At the same time, it should be noted that the system of
preventive measures has been discussed de lege ferenda on several
occasions, for instance by the Permanent Committee on Penal Reforms
(Straffelovrådet) which on request from the Ministry of Justice
submitted a report in 1974 (NOU 1974:17 Strafferettslig utilregnelighet
og strafferettslige saerreaksjoner).

        Moreover, a commission under the Ministry of Justice is for the
time being working on an overall revision of the Penal Code
(Straffelovkommisjonen).  In its general report in 1983 (NOU 1983:57
Straffelovgivningen under omforming), the commission mentioned (p. 199)
that the question had been raised whether the present provisions
relating to preventive measures were in breach of Article 5 para. 4.
However, the report simply refers to this question and does not
contain any study or arguments relating to that Article.   A sub-
committee under the commission is presently studying the problems
relating to criminal liability and preventive measures
("strafferettslige saerreaksjoner").

        The applicant

        The Government's observations relating to Article 5 para. 4 of
the Convention are based on a wrong assumption.  The Government allege
that the applicant must be considered to be a person of unsound mind
within the meaning of Article 5 para. 1 (e) and that he is deprived of
his liberty as a consequence of this fact.  On the contrary it is
clear that the applicant was not considered mentally ill after the
judicial observation in 1978.  He was considered as a person with an
underdeveloped and impaired mental capacity.  Only in March 1987 was he
considered to be seriously mentally ill within the context of the
Mental Health Care Act, Section 5.  This means that the applicant in
the period from 1978 to 1987 could not be hospitalised in psychiatric
institutions without his consent.  The detention of the applicant - in
the context of the Convention - is not to be considered under Article
5 para. 1 (e) but under Article 5 para. 1 (a).

        The Government mention that the applicant once a year has the
opportunity to bring the question of further preventive detention
before the courts and that the requirements of a regular judicial
control in Article 5 para. 4 are fulfilled for this reason.  The
courts' possibilities to control are, however, quite limited.  If the
Ministry of Justice makes a decision about the detention of the applicant,
the courts have, in reality, no possibility to quash such a decision.

        Thus there is no way the courts could possibly test the
professional judgment of the administration about which therapy would
be the best for the applicant.  This is even more difficult as
the courts are not presented with concrete, realistic alternatives.

        There is nothing the courts can do but, in their judgments, to
repeat the urgent requests to avoid detention.  This has been done in
all the judgments concerning the applicant.  However, the courts do
not have the competence to order the administration to effect
alternatives to detention.  This is what has happened in all the
judgments concerning the applicant since 1978:  Requests from the courts
to avoid detention - which are not followed by the administration
because it is not obliged to.  Therefore, the possibility mentioned by
the Government is merely a formal possibility without any realistic
content and thus in conflict with Article 5 para. 4 which guarantees a
right to judicial review of both the substantive and the formal
lawfulness of the detention.

        The available legal procedure in Norway seems to be quite
similar to Habeas Corpus proceedings formerly found insufficient to
fulfil the requirements of Article 5 para. 4, because the court may
only examine whether the decision is the result of abuse of power,
incorrect assessments of facts or clearly unreasonable.  The
discretionary and substantive elements may not be examined and these
elements are of the greatest importance.

        The Government mention that if for example one of the yearly
decisions concerning the use of preventive measures were to be taken
notwithstanding the fact that the person was no longer of unsound mind,
the decision would be invalid.  This seems to imply that a court could
examine the substantive lawfulness of detention.  However, this would
only be the case insofar the person concerned was detained under the
Mental Health Care Act.

        To impose and continue preventive measures does not necessarily
mean that the person is of unsound mind.  It is sufficient that he was
of unsound mind when the offence was committed or that he suffered
from an impaired mental capacity, or that he was in a state of
unconsciousness following a self-inflicted intoxication.  A change in
the mental situation does not prevent preventive measures.  Preventive
detention also serves punitive ends.  (At present preventive detention
is considered as punishment in relation to the Constitution, but not
in criminal law.  A new proposal suggests that preventive detention
shall be considered as punishment in both relations.)

        The essential question is whether the applicant could have
brought his case before a court in order to have the lawfulness of his
detention examined.  In this connection it is of significance that he
was placed in detention several times by administrative decisions.
Although the decisions to detain him again or to place him in another
kind of detention may be classified as the execution of a court
sentence, such detention was nevertheless the direct result of
administrative decisions.

        The applicant did not attempt to challenge his detention in
court, but such attempts would have been found inadmissible by the
courts since the question of detention was already considered in the
original judgment authorising detention.

        There does not appear to be any case-law showing that a court
has considered administrative decisions on preventive measures under
Section 39 para. 1 f of the Penal Code.  According to Forsvarergruppen
av 1977 - an association of lawyers dealing with criminal cases -
there have probably never been any attempts to challenge administrative
decisions of this kind in court.  Furthermore Forsvarergruppen av 1977
has expressed the view that it is uncertain whether there is a legal
possibility to challenge such decisions in court at all.

        According to existing case-law the Supreme Court of Norway has
stated that detention in a psychiatric hospital according to Section 39
para. 1 e of the Penal Code could only be enforced when the conditions
according to the Mental Health Care Act were also fulfilled.  However,
that case-law is not applicable if a person is detained under Section 39
para. 1 f of the Penal Code.

        If a court would find that the detention ordered by the Ministry
of Justice under Section 39 para. 1 f is unlawful, the court would not
have the authority to release the person.  The court could only state
that this decision is unlawful, because the Ministry of Justice might
have other reasons for detaining the person in question and this is
covered by the discretionary powers of the administration which the
court cannot consider.

        The court can only give orders to the administration if there
are laws prescribing the exact conditions for detention so that the
court may conclude that a lack of one condition gives no other
alternative than to release the person concerned.  But since there
is no such law the courts have no possibility to draw such conclusions.

        In other words there are no laws by which the lawfulness of
the administration's decisions can be considered.

        Different committees have discussed changes in the laws about
decisions of preventive measures.  Some have even discussed if the
rules are in conflict with Article 5 of the Convention.  They have all
concluded that the question is open and therefore propose new laws.
But until now such proposals have not been followed up by the
Government and the Parliament.  The last committee -
"Saerreaksjonsutvalget" - has the task to consider this.  It has not
finished its work yet.


THE LAW

        The Commission recalls that, subsequent to its partial
decision on admissibility of 7 March 1988, the remaining issue is the
question whether the applicant, when detained by administrative
decisions, could rely on an appropriate procedure allowing a court to
determine the lawfulness of this measure as required by Article 5
para. 4 (Art. 5-4) of the Convention which reads:

"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."

        The respondent Government have submitted that the decision to
authorise preventive detention is taken by a court.  This decision is
subject to appeal.  Furthermore, when the preventive measure has been
implemented in accordance with the judgment, the question of whether
to terminate, alter or resume the measure is considered by the
Ministry of Justice at least once a year either automatically or at
the request of the person concerned.  When a person is placed in
preventive detention under Section 39 para. 1 f of the Penal Code
the Ministry's decision is subject to appeal to the King in Council
whose decision may be brought before the courts.  Furthermore the
Government submit that under the general unwritten constitutional
principles of judicial supremacy the courts have the competence to
consider the lawfulness of the decision as well as the question
whether it is based on a correct assessment of the facts and whether
the enforcement of the preventive measure could be considered as an
abuse of power.  Certain discretionary aspects of a case are not
subject to judicial review.

        The Government also maintain that, since the applicant did not
challenge the lawfulness of his detention under Section 39 in
accordance with the above procedure, he has not exhausted the remedies
available to him under domestic law and the Government rely in this
respect on Article 26 (Art. 26) of the Convention.

        The Government accept, however, that Chapter 33 of the Code
of Civil Procedure relating to review of administrative decisions
concerning deprivation of liberty and other enforcement measures is
not applicable in a situation where the applicant is detained under
Section 39 para. 1 f of the Penal Code.

        The Government furthermore accept that there is no case-law
whereby a court has overruled any decision of the Ministry of Justice
under Section 39 taken in connection with its annual review and the
applicant has submitted that there is no case-law showing that a court
would even examine a decision taken by the Ministry of Justice under
this provision.  Even if it would, its possibilities of controlling the
administrative decisions are quite limited.  There is in his view no
way in which the courts can examine the decision as to which therapy
would be best for the applicant and there is actually nothing the
courts can do but repeat their requests to avoid detaining the
applicant in a prison.

        The Commission notes that a dispute exists between the parties
as to whether the remedy available fulfils the requirements of Article
5 para. 4 (Art. 5-4) of the Convention.  Therefore the Commission
finds no reason to rely on Article 26 (Art. 26) of the Convention as
suggested by the respondent Government, but has considered the issue
under Article 5 para. 4 (Art. 5-4) in the light of the submissions of
the parties.

        Having made a preliminary examination of the above issue the
Commission has come to the conclusion that it raises a serious
question as to the interpretation and application of Article 5 para. 4
(Art. 5-4) of the Convention, and that this issue can only be
determined after an examination on its merits.  It cannot therefore be
rejected as being manifestly ill-founded but must be declared
admissible, no other reason for declaring it inadmissible having been
found.


        For these reasons, the Commission


        DECLARES ADMISSIBLE, without prejudging the merits of the
        case, the issue as to whether the applicant could rely on an
        appropriate procedure allowing a court to determine the
        lawfulness of his detention as required by Article 5 para. 4
        (Art. 5-4) of the Convention.


Deputy Secretary to the Commission      President of the Commission




            (J. RAYMOND)                      (C.A. NØRGAARD)