Article 9

The right to be brought promptly before a judge

86. Section 183 of the Criminal Procedure Act was amended by Act 28 of June 2002 No 55. The time limit for bringing an arrested person who the prosecuting authority wishes to detain before a judge was changed from “as soon as possible and as far as possible on the day after the arrest” to “as soon as possible and at the latest the third day after the arrest”.The amendment was based partly on the wish to introduce an absolute time limit, and partly on the assumption that by being able to keep suspects in custody for up to three days, the number of cases where there will be a need for further detention will be brought down, i.e. the total use of detention will decrease. The relationship between such a reform and the right to be brought promptly before a judge was discussed thoroughly in the travaux préparatoires. The reform has not yet entered into force, pending the finalisation of regulations to ensure that it will not increase the time spent in police custody.

Deprivation of liberty in connection with mental health care

87. The conditions for deprivation of liberty in connection with mental health care are set out in chapter 3 of the 1999 Mental Health Care Act (cf. Appendix 6), which has replaced the 1961 Act relating to Mental Health Care. The purpose of the new Act is to ensure that mental health care is applied and implemented in a satisfactory manner and in accordance with the fundamental principles of the rule of law. The purpose is also to ensure that the measures set out in the Act are based on the needs of the patient and respect for human dignity (section 1-1).

88. Compulsory mental health care may be applied in respect of a person with a serious mental disorder if this is necessary to prevent the person concerned from:

• having the prospects of his or her health being restored or significantly improved considerably reduced, or it is highly probable that the condition of the person concerned will significantly deteriorate in the very near future, or
• constituting an obvious and serious risk to his or her own life and health or those of others, on account of his or her mental disorder.

89. Compulsory mental health care may only be applied when voluntary mental health care has been tried to no avail, or when it is obviously pointless to try the latter. Even though the conditions of the Act are otherwise satisfied, compulsory mental health care may only be applied when, after an overall assessment, this clearly appears to be the best solution for the person concerned, unless he or she constitutes an obvious and serious risk to the life or health of others. When making this assessment, special emphasis shall be placed on how great a strain the compulsory intervention will entail for the person concerned.

90. Compulsory mental health care may not be applied unless a physician has personally examined the person concerned in order to ascertain whether the conditions of the Act relating to such care are satisfied. If the person concerned refuses such an examination, the chief municipal medical officer may, on his or her own initiative or at the request of another public authority or the closest relative of the person concerned, decide that a personal examination shall be carried out by a physician in order to elucidate the matter. If necessary, the person concerned may be fetched and examined by force and with the assistant of another public authority.

91. A public authority or the closest relative may, on the basis of this medical opinion, request that the person concerned should be placed under compulsory mental health care. On the basis of the request and the medical information and opinions presented, the responsible mental health professional is authorised to decide whether the person concerned shall be placed under compulsory mental health care. Before a decision is made, the person for whom commitment to compulsory mental health care has been requested shall undergo a personal medical examination at the responsible institution. The decision of the responsible mental health professional and the basis for the decision shall immediately be recorded.

92. An administrative decision to impose compulsory mental health care may only be made and implemented if the institution responsible is professionally and materially capable of offering the person in question satisfactory treatment and care.

93. Before an administrative decisions is made, the person directly concerned by the case shall be given an opportunity to state his or her opinion. The right to state an opinion applies inter alia to the question of the application of compulsory mental health care and which institution is to be responsible for the care. The closest relative of the person concerned and any public authority directly involved in the case are also entitled to state their opinion.

94. When a person is placed under mental health care pursuant to the Mental Health Care Act, he/she is entitled to appeal the decision to a supervisory commission. The provisions on the supervisory commission are set out in chapter 6 of the Act. The supervisory commission is autonomous in its activity. It shall make decisions in matters that have been specially assigned to it and shall insofar as possible also carry out such supervision as it deems necessary for the welfare of the patient. It may take up cases on its own initiative or in response to a request by the patient, the patient’s closest relative or the staff. If the commission finds circumstances to which it wishes to draw attention, it shall take the matter up with the responsible mental health professional and, as the case may be, the chief county medical officer. Compulsory mental health care shall be terminated after one year unless the supervisory commission approve prolongation (section 3-10 last paragraph). Every third month, the patient shall be examined in order to ascertain that the basic requirements for keeping the person under compulsory mental health care are still present (section 4-9).

95. A lawyer who is qualified to serve as a judge shall chair the supervisory commission and it shall otherwise consist of a physician and two other members, all of whom shall have personal deputies. One of the permanent members shall have been under mental health care or be a close relative of a current or former patient, or be a person who has represented the interests of patients in his occupation or function.

96. When a person is placed under compulsory mental health care, notification shall be sent to the supervisory commission, together with a copy of the supporting documents. The supervisory commission shall as soon as possible ascertain that the correct procedure has been followed, and that the administrative decision is based on an assessment of the fundamental criteria set out in the Mental Health Care Act.

97. The Government gives high priority in its policy to reducing the use of coercion.

Detention of offenders deemed dangerous

98. There have been significant amendments to the General Civil Penal Code by Act 17 January 1997 No 11, which came into force on 1 January 2002, relating to offenders who are deemed dangerous. Some of the amendments relate to offenders who are not liable to a penalty for reasons mentioned below, some of them relate to sane offenders. For both categories of offenders the amendments have the effect that the court plays a more active role in the decision-making than under the previous system, that the offender has the possibility of having the sentence reviewed more frequently, and that the sentence should be adjusted to the offender’s needs.

99. A person who was psychotic or unconscious at the time of committing the act shall not be liable to a penalty. The same applies to a person who at the time of committing the act was mentally retarded to a high degree.

100. When it is deemed necessary for the protection of society, an offender who is not liable to a penalty because of a psychosis or unconsciousness, shall be transferred to compulsory mental health care, cf. chapter 5 of the Act relating to mental health care (cf. Appendix 6). An offender who is not liable to a penalty because of mental retardation shall receive a sentence of compulsory care in a unit set up for this purpose. A decision concerning such transfer shall be made by a court order, and the transfer may only be effected when the offender has committed or attempted to commit a serious breach of the law impairing the life, health or liberty of other persons, and there is an imminent risk that the offender will again commit such a breach. The amendment means that persons who are not liable to a penalty will not be placed in prison, but receive suitable care during the sentence.

101. The person convicted, his next-of-kin, or the person professionally responsible at the institution that is treating the convicted person, may apply for remission of the penalty. The prosecuting authority shall submit the case to the District Court, which will make a judgement in the matter. The hearing of the case shall be accelerated. Application may not be made for remission of the penalty until one year after the transfer order or a judgement denying remission is legally enforceable. The prosecuting authority may at any time decide to remit the penalty. No later than three years after the last legally enforceable judgement has been passed, the prosecuting authority shall either decide to remit the penalty or bring the case before the District Court, which will decide whether the penalty shall be continued.

102. The same amendment introduced a new penalty aimed at offenders deemed so dangerous that a sentence for a specific term is insufficient to protect society (preventive detention). Previously, such an offender could be sentenced to imprisonment and preventive measures concurrently.

103. When passing a sentence of preventive detention the court shall determine a term that should generally not exceed 15 years and may not exceed 21 years. On application by the prosecuting authority the court may, however, extend the fixed term by up to five years at a time. A minimum period of preventive detention not exceeding 10 years should also be determined.

104. Release before the expiry of the period of preventive detention shall be effected on probation with a probation period of from one to five years. When the convicted person or the prison and probation service applies for release on probation, the prosecuting authority shall submit the case to the District Court, which will make a judgement in the matter. The hearing of a case concerning release on probation shall be accelerated. If the prosecuting authority consents to a release on probation, the prison and probation service may decide on such a release. The convicted person may not apply for release on probation until a year has elapsed after the sentence of preventive detention has been passed or a judgement denying release on probation is legally enforceable.

Imprisonment of foreign nationals

105. The legal framework applicable to the detention of foreign nationals is the Immigration Act, Act of 24 June 1988 No 64 (enclosed at Appendix 10), and the Immigration Regulations of 21 December 1990. Section 37 of the Immigration Act relates to detention for identification purposes and section 41 to detention for the purpose of implementing decisions (see below). These provisions were amended both in 1999 and in 2002.

106. A total of 235 foreign nationals were detained in Norway in 2002. 176 were detained pursuant to section 41 (pending deportation), 39 pursuant to section 37 (identification) and 20 pursuant to both provisions. (The total number of rejections/deportations from Norway was 8065 in 2002.) In 2003 a total of 232 foreign nationals were detained. 161 were detained pursuant to section 41, 58 pursuant to section 37, and 13 pursuant to both provisions.

107. According to section 37 of the Immigration Act, a foreign national has a duty to co-operate in clarifying his or her identity. If the foreign national refuses to state his or her identity, or there are reasonable grounds for suspicion that the foreign national has given a false identity, the foreign national may be required to report to a particular authority or to stay in a particular place. If such obligation is not complied with or is deemed to be clearly insufficient, the foreign national may be arrested and remanded in custody pursuant to the provisions of section 37c, third paragraph.

108. Section 41 states that a foreign national who fails to comply with a decision that means that he/she must leave Norway may be escorted out of the country by the police. To ensure the implementation of such a decision, the foreign national may be ordered to report, to surrender his or her passport or any other identity document or to stay at a particular place of residence. Such orders may only be made where there is particular reason to fear that the foreign national will evade implementation. In cases where it is necessary in order to ensure implementation, the foreign national may be arrested and remanded in custody (pursuant to the provisions of section 37c, third paragraph). The same applies in cases where the foreign national does not do what is necessary to fulfil the duty to possess or obtain a valid travel document.

109. This means that arrest and custody should not be resorted to if, given the nature of the case and the general circumstances, this would be an unreasonable interference, or the court finds that it may instead impose an obligation to report, seizure of passport or a particular place of residence.

110. Section 37 d of the Immigration Act contains a provision on detention centres. There is a small detention centre at Gardermoen Airport, Oslo, for the purpose of detaining persons being deported. Ordinary prisons are used when the duration of the detention exceeds one night. It should be noted however that detention pursuant to sections 37 and 41 of the Immigration Act is not criminal detention.

111. Pursuant to the provisions of section 37 c, third paragraph, the prosecuting authority orders the arrest. In cases where the prosecuting authority wishes to detain the person arrested, it must as soon as possible and as far as possible at the latest the day after the arrest, bring the person arrested before a court of law with a petition for remand in custody. The decision is automatically reviewed every two weeks.

Detention of persons who use intoxicating substances

112. Reference is made to paragraphs 98-100 of Norway’s fourth report. The total number of decisions on compulsory placement of drug and alcohol abusers in 2001 to 2003 is as follows:

The number of decisions on compulsory placement of pregnant drug and alcohol abusers in 2001 to 2003 was as follows:

Temporary decisions made by the social services are short-term, and subject to temporary confirmation by the chair of the County Board as soon as possible and if possible within 48 hours. A proposal for a final decision shall be submitted to the County Board, a committee of experts and laypersons led by a chairman with legal training, within two weeks. If the proposal is not submitted to the County Board within this deadline, the decision will be annulled. It must be underlined that the condition for an immediate or urgent decision with regard to pregnant women is that there is a qualified or paramount danger of a harmful effect on the child if the decision is not immediately made and carried out.

113. Three Norwegian treatment programmes reviewed the practical and clinical results of compulsory treatment of substance abusers before the end of the 1990s. One is a specialised treatment unit for pregnant drug abusers (Borgestadklinikken). The main finding was that the main effect of a three-month period of compulsory treatment was an increase in motivation for continued treatment on a voluntary basis. Another study documents the same results of a treatment programme for younger drug abusers and for adult abusers referred from prisons (Tyrili Foundation). A third study from an emergency unit at Oslo University Hospital (Ullevål) concludes that the results are meagre.

Duration of pre-trial detention

114. In its concluding observation of 1 November 1999, the Committee noted with concern that pre-trial detention in some cases is used for excessive periods of time. Measures to speed up the investigation and adjudication of cases are described under Article 14. As to the facts, statistics show that the average duration of pre-trial detention is two months (1998-2001). There are however differences. For prisoners over 30 years of age, the average is 75 days. Foreign nationals charged with drug-related offences are on average detained pending trial for 137 days. One reason may be the increased risk that they will flee the country if released.

Compensation for detention

115. The provisions of Chapter 31 of the Criminal Procedure Act concerning compensation in connection with a prosecution were amended by Act of 10 January 2003 No 3. The Act entered into force on 1 January 2004. The main improvement, from a human rights point of view, is that the person seeking compensation no longer has to establish the probability that he or she did not commit the act that was the basis of the charge.

116. In accordance with section 444 (as amended), a person charged is entitled to compensation from the State for any financial loss that the prosecution has caused him or her if the person is acquitted, if the prosecution is discontinued, or in so far as the person has been arrested or detained in custody contrary to Article 5 of the European Convention on Human Rights or Article 9 of the Covenant. A convicted person is also entitled to compensation for financial loss due to execution of a sentence that exceeds the sentence imposed after a case has been reopened. If the conditions set out in section 444 are not fulfilled, the person charged may still, if it is deemed reasonable, be awarded compensation for financial loss resulting from special or disproportionate damage that the prosecution has caused (section 445). The compensation mentioned in sections 444 and 445 may however be reduced or not awarded if the person, without reasonable cause, has chosen to exercise his or her right not to give testimony or has counteracted the illumination of the case, has induced the prosecution or the conviction or has not to the best of his or her ability reduced the loss or damage caused by the prosecution or conviction (section 446).

117. Furthermore, a person charged is entitled to redress at rates prescribed by the King for any indignity or other damage of a non-pecuniary nature resulting from an arrest or remand in custody if he or she is acquitted or the prosecution is discontinued.