SECOND SECTION
CASE OF HAUGEN v. NORWAY
(Application no. 59476/21)
 
JUDGMENT
 
Art 35 § 1 • Lack of effective remedies at the time of lodging the application, offering the applicant reasonable prospects of obtaining non-pecuniary damages for his son’s death • Civil claim under general tort law for non-pecuniary damage for human rights violations not an effective remedy at the material time • No statutory domestic-law provision for granting such compensation • Absence of consistent and unambiguous domestic court practice and relevant legislative framework unclear and uncertain • Recent Supreme Court rulings which provided clarification, eliminating void in domestic law and creating precedents
Art 2 • Positive obligations • Life • Failure to safeguard the life of the applicant’s son who suffered from psychiatric disorders and committed suicide in pre-trial detention in an ordinary prison unit • Applicant’s son in a particularly vulnerable situation and at risk of self-harm, requiring special attention, monitoring of his situation and continuous assessment of his suicide risk • Shortcomings in the authorities’ actions after the applicant’s son returned to prison from hospital • Absence of an in-depth assessment of the suicide risk and limited medical attention and treatment • Lack of prison-healthcare-service involvement in the decision to transfer him into an ordinary cell without the benefit of reinforced supervision and care • Serious deficiencies in the coordination of the medical care and in the communication between the various medical authorities
Art 13 (+ Art 2) • Lack of an effective remedy for the applicant to obtain a determination of the alleged failure to protect his son’s right to life and to obtain satisfaction for the damage suffered
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
15 October 2024
 
FINAL
 
17/03/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Haugen v. Norway,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jovan Ilievski, President,
 Arnfinn Bårdsen,
 Pauliine Koskelo,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Davor Derenčinović,
 Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 59476/21) against the Kingdom of Norway lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Norwegian national, Mr Age Nils Haugen (“the applicant”), on 1 December 2021;
the decision to give notice of the application to the Norwegian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 17 September 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns suicide in pre-trial detention of the applicant’s son, who suffered from psychiatric disorders. It raises issues under Articles 2 and 13 of the Convention. THE FACTS
2. The applicant was born in 1948 and lives in Rykkinn. He was represented by Mr H.A. Strand, a lawyer practising in Jessheim. 3. The Government were represented by their Agent, Ms H. Busch, of the Attorney General’s Office (Civil Matters), assisted by Ms G. Mostuen, an advocate at the same office. 4. The facts of the case may be summarised as follows. Background
5. The applicant’s son, X, was born in 1977. 6. In 2019 X was sentenced to compulsory mental health treatment after the attempted murder in 2018 of an acquaintance and other criminal acts committed in a psychotic state of mind. X could not be held criminally liable as unaccountable for his actions and was instead sentenced to compulsory mental health treatment under Chapter 5 of the Mental Healthcare Act. He was admitted to a secure unit at the Innlandet Hospital Trust’s inpatient psychiatric department at Reinsvoll (“IHT Reinsvoll”). 7. Between 2018 and 2019 X’s mental health significantly improved as a result of his hospitalisation and treatment. On 11 December 2019 he was discharged from IHT Reinsvoll and transferred to Hov Nordre, a municipal residential facility with fewer security restrictions, to live in shared housing with other patients. 8. On 17 January 2020 X, under the influence of alcohol, killed a fellow patient at the residential facility. He was arrested and charged with murder under Article 275 of the Criminal Code. 9. On 18 January 2020 X was examined in police custody by a psychiatrist to assess his mental health. The psychiatrist observed that he did not appear to have any psychotic symptoms or behaviour, such as delusions or perceptual disturbances. He seemed downcast and affected by the situation, but not acutely suicidal. X had stated that he did not remember anything about the incident and that he had the impression that he had suffered a disturbance of consciousness at the relevant time. The psychiatrist therefore concluded that X should undergo a complete forensic psychiatric examination. The psychiatrist also consulted the senior psychiatrist from IHT Reinsvoll, who stated that X had been stable, adequately treated with antipsychotic injections every fourteen days and had not been in a psychotic state since autumn 2018. X’s pre-trial detention in Oslo Prison
10. On 20 January 2020 the Oslo District Court (“the District Court”) ordered that X be remanded in custody until the public prosecutor or the court decided otherwise, but no later than 17 February 2020. 11. The District Court also ordered, under Articles 186 and 186a of the Code of Criminal Procedure, that X be banned from correspondence, visits and access to newspapers and broadcasting services during his pre-trial detention. The restrictions were intended to prevent him from interfering with the investigation, but were lifted on 7 February 2020. He was also placed in solitary confinement until 3 February 2020. 12. X consented to pre-trial detention, said that he did not wish to be present at the hearing and did not appeal against the decision. 13. On 20 January 2020 staff at Oslo Prison concluded that because of the suicide risk X should be placed in Unit 1, where detainees in need of special health treatment were held. In Unit 1, X was under supervision every thirty minutes and an action plan to manage his suicide risk was drawn up, which contained recommendations to include him in activities within the unit and to refer him to the prison healthcare service and the prison psychiatric polyclinic (“the FPP”). 14. On 21 January 2020 the prison healthcare service conducted a preliminary assessment of X’s mental health. It appears from his medical records that X informed the prison health care service’s staff that he suffered from bipolar disorder and had previously been treated for psychosis. He also said that he was depressed and had had suicidal thoughts, but had no concrete plans to commit suicide. The prison healthcare service sent the report of its preliminary assessment to the FPP so that it could examine X and assess his treatment needs. 15. On 22 January 2020 a nurse from the prison healthcare service called A.R., the senior psychiatrist at IHT Reinsvoll, who did not object to the FPP being involved but stressed that the responsibility for X’s healthcare formally remained with IHT Reinsvoll, since X had been sentenced to compulsory mental health treatment in that institution. Furthermore, it was uncertain when the senior psychiatrist from IHT Reinsvoll would be able to come to the Oslo Prison, as he himself could be called as a witness in the criminal proceedings against X. 16. On the same date, the nurse noted that X appeared depressed, with no facial expression and little eye contact. He had confirmed suicidal thoughts and expressed his wish to speak to the healthcare professionals at IHT Reinsvoll, whom he knew well and trusted. The nurse concluded the entry in his medical records by noting that the prison doctor and FPP would soon have to be involved if the doctors from IHT Reinsvoll were unable to come to Oslo Prison to see X. 17. On 24 January 2020 the nurse noted the following in X’s medical records:
“[X] wants Valium because he thinks a lot about what has happened. According to the guards, he sleeps a lot. The patient confirms this, but also says that he wakes up frequently. I called A.R. as agreed today. It is not clear whether they will be allowed to see the patient. A.R. will not recommend Valium for the patient on a general basis as there is a substance abuse problem, but he has not evaluated the patient himself. He suggests giving class C drugs. Trying Atarax. The patient has been informed and says he thinks it is okay to try this.”
18. On 27 January 2020 X’s lawyer visited him in the Oslo Prison. She was concerned about his mental state and asked that he see a doctor as soon as possible. The following day her office sent an email to the prison to follow up on that request, stating that X urgently needed to see a doctor because of his “very poor mental health”. 19. On the same day X saw a doctor and a psychologist from the FPP for an emergency assessment. It appears from his medical records that they concluded that he was struggling with ambivalence and guilt, and was clearly in crisis. They were unsure whether he was depressed and considered his state of mind to probably be more of a crisis reaction than depression. X stated that he would manage to contact staff if things got worse. They considered that supervision every thirty minutes was sufficient. It further appears from the medical records drawn up by the prison healthcare service that IHT Reinsvoll had informed it that it had patient and treatment responsibility for X. 20. On 28 January 2020 X was visited by A.R., the senior psychiatrist from IHT Reinsvoll, who noted as follows:
“Visiting the patient in the Oslo Prison together with two [police] investigators ... who were primarily present to ensure that the conversation with the patient did not touch on topics related to the murder case. The main purpose was to administer an antipsychotic injection ... He reports ruminations that disturb his concentration and are of a self-blaming nature. He also mentions feelings of guilt and emptiness. He appears to be in a clearly downward mood, although his face can sometimes light up with a little smile during the conversation. He confirms recurring suicidal thoughts and possibly more concrete considerations about a method of suicide, without wanting to say anything further about whether he has concrete plans. There is an increased risk of suicide and the patient is clearly in a very stressful situation with the onset of depression, which should be reviewed at the next visit.”
21. On 27 and 29 January 2020 the prison healthcare service and the FPP conducted a joint assessment of X’s mental state and decided to admit him to hospital because of the overall suicide risk. Since several patients at IHT Reinsvoll had witnessed the murder, an alternative placement needed to be found. 22. It appears from X’s medical records that on 30 January 2020 the FPP requested legal assistance to have him admitted to hospital as, after three assessments, it considered him to be in urgent need of hospitalisation. The records further stated that the FPP was also considering the possibility of contacting the County Governor for assistance. However, the FPP was informed the same day that IHT Reinsvoll would be admitting X to IHT Sanderud. X’s admission to IHT Sanderud
23. On 30 January 2020 X was admitted to IHT Sanderud. In the FPP’s referral to that hospital, it was stated that he was considered to be in a state of shock after the murder, that he had confirmed suicidal thoughts, that he had thought of a specific method to do so but did not wish to talk about it, and that he had also stated that his life was not worth living. 24. In medical records drawn up by IHT Sanderud on 31 January 2020, it was noted that X’s risk of suicide was heightened, but that it was being managed within the hospital framework and through continuous supervision. 25. On 3 February 2020 it was noted that X had been diagnosed with bipolar disorder, but that his current symptoms were considered part of an adjustment disorder following the murder, rather than a deterioration of his original condition. From the hospital’s observations, it could be concluded that the symptoms he was displaying were not compatible with a severe depressive condition. There were no signs of psychosis, irritability or other affective disorders. The risk of suicide was considered to be the same as before, given X’s confirmation that he had suicidal thoughts. 26. On 4 February 2020 X was transferred back to Oslo Prison from IHT Sanderud. 27. In a discharge note issued the same day, the hospital’s senior psychiatrist and psychologist stated that the risk of suicide was higher than in the general population, on the basis of known risk factors and X’s suicidal thoughts. However, his condition was improving, and he had expressed more future-oriented thoughts. He had also expressed a wish for further follow-up and activities while in pre-trial detention. According to his medical records, he still had suicidal thoughts but did not want to talk about them and therefore had not expressed any concrete plans to commit suicide. He had described being troubled by thoughts and inner restlessness and had requested sedatives. However, he did not appear visibly anxious or troubled. Overall, the acute risk of suicide in his current state was considered low and was being managed within the framework of follow-up counselling in pre-trial detention. 28. According to a clinical diary entry made the same day, one of IHT Sanderud’s doctors considered it a protective factor for X to be placed in solitary confinement and followed up by psychiatrists at Oslo Prison. That entry was not included in the discharge note. Second period of pre-trial detention in Oslo Prison
29. When X returned to Oslo Prison on 4 February 2020, he was again placed in Unit 1, where he was under supervision every thirty minutes. None of his prison medical records indicate that either the FPP or the prison healthcare service offered him any healthcare after his return from IHT Sanderud, other than simple patient contact, which seems to have involved a nurse providing him with medication. 30. On 14 February 2020 X refused to go to the prison healthcare service to receive his antipsychotic injection. The nurse therefore contacted the senior psychiatrist at IHT Reinsvoll, who visited him in prison later that day. He administered the injection, noting that there were no signs of psychotic symptoms and that X was in the same state as he had been during his time at IHT Reinsvoll before being transferred to Hov Nordre. The senior psychiatrist also noted that X did not appear suicidal that day. X had stated that he had nothing to live for, but he did not seem to be contemplating taking his own life and, beyond the conversation, did not appear to be actively suicidal. The senior psychiatrist noted that X seemed sad about the situation in which he had found himself. 31. Later that day, X’s supervision every thirty minutes was stopped, after an overall assessment by the head of department. 32. It was noted in the prison records that between 14 and 28 February 2020 X participated in activities in that he went outdoors ten times, refused to do so once and was offered activities on three further occasions. 33. On 17 February 2020 the District Court extended X’s detention until a further decision was made, but no later than 16 March 2020. Prior to this decision, he had agreed to remain in pre-trial detention and to the hearing being held in his absence. X, who was represented by a lawyer, did not appeal against that decision. 34. On 25 February 2020 the senior psychiatrist from IHT Reinsvoll visited X in prison to provide him with a further antipsychotic injection. He considered that X’s mental state had not changed since the previous visit and noted that he was affected by his situation, displaying a downcast demeanour and a somewhat withdrawn appearance. He also noted that X was not making use of the activities offered. The senior psychiatrist was due to return within three weeks to provide X with a further injection. 35. In prison records dated 25 February 2020 it was noted that X was no longer under supervision and could be transferred from Unit 1 if there was a need for prison cells in that unit. According to the Government, this was discussed during the weekly planning meeting in Unit 1, usually attended by both prison and medical staff, at which all detainees in Unit 1 were evaluated. No written record of that meeting was provided to the Court. 36. On 28 February 2020 X was moved from Unit 1 of Oslo Prison to Unit 6, an ordinary prison unit. It appears from the prison records that he was transferred because of a need for prison cells in Unit 1. 37. On 1 March 2020, two days after being transferred from Unit 1, X committed suicide by hanging himself using the drawstring of his hooded jumper and the clothing rod in his room. He was found by prison staff at around 9.15 a.m. in his cell, where he had been alone since 6.30 p.m. the previous evening. Investigation into X’s death
38. On 1 March 2020 the police interviewed several employees of Oslo Prison, inspected X’s cell and examined his medical records. The police also requested a forensic post-mortem examination, which was conducted on 2 March 2020. 39. On 4 March 2020 the police notified the County Governor of Oslo and Viken of the suspicious death and requested to be informed if it considered that the case should be investigated further. 40. The Correctional Service for Oslo Prison conducted a review of the incident in accordance with its emergency procedures. It appears from a letter dated 5 March 2020 from Oslo Prison that the decision to discontinue X’s close supervision had been taken because he was considered to be doing better, had been spending more time outside with other detainees and there had been no indications of self-harm or a risk of suicide. In the same letter, the prison evaluated the process and found that all relevant units had been involved in X’s follow-up, including the prison healthcare service, the FPP, an external hospital and prison staff. Oslo Prison further considered that the available resources had been channelled towards X and that the decision to end his supervision and transfer him from Unit 1 to an ordinary prison unit “seemed reasonable on the basis of the information provided at the time.”
41. In a letter from the prison healthcare service dated 9 March 2020, it was stated that its last contact with X had been on 14 February 2020, when a consultation with the prison nurse had taken place. It appears that it had only sporadic contact with X after that date and that IHT Reinsvoll had retained responsibility for his treatment. 42. In a statement to the Oslo police dated 27 May 2020, IHT Reinsvoll said that it had been incorrect to hold that the hospital had retained treatment responsibility for X while he had been in Oslo Prison, since it had had limited opportunity to conduct interviews or assessments owing to his detention. Nevertheless, it had continued to administer antipsychotic injections and conduct short assessment interviews with X at his request. The statement also confirmed that X had been admitted to IHT Sanderud to be assessed for depression and to determine whether he was a suicide risk. Beyond that, he had been under the care of the FPP. 43. In a letter dated 11 June 2020 from Oslo Prison to the Oslo police, the prison healthcare service stated that it had not been involved in the decision to move X from Unit 1. It further stated that it was not possible to provide more specific information concerning the assessments that had formed the basis of that decision or who had participated in any such assessment. Officially, the head of department would take the decision to end a detainee’s supervision in Unit 1. Planning meetings to discuss such transfers were normally also attended by the prison healthcare service and the FPP. However, there were no minutes to show exactly who had attended the meeting at which X’s transfer had been decided. Proceedings initiated by the applicant
44. On 17 March 2020 the applicant filed a complaint about X’s suicide with the police. He also reported Oslo Prison (including the Correctional Service for Oslo Prison), IHT Sanderud, the District Court and the judges that had been involved in the case. 45. The Oslo police opened an investigation and contacted the County Governors of Innlandet and of Oslo and Viken, who were responsible for the administrative supervision of both general and specialist health services in their respective districts. The County Governor of Innlandet was responsible for the administrative supervision of the Innlandet Hospital Trust, while the County Governor of Oslo and Viken was responsible for the supervision of the prison healthcare service in Oslo Prison. Investigation by the County Governor of Oslo and Viken
46. On 28 August 2020 the County Governor of Oslo and Viken sent a letter to the Oslo police informing them that no further criminal investigation of the prison healthcare service was recommended. The investigation that had been conducted had not revealed any substantive breach of the requirement to provide X with adequate healthcare pursuant to section 67 of the Healthcare Personnel Act, which could give rise to criminal liability. Furthermore, on the basis of the overall documentation, the County Governor considered that there was no evidence that X’s medical follow-up in Oslo Prison deviated significantly from accepted practice. For this reason, there were no grounds to recommend a further investigation. 47. On 4 January 2021 the Oslo police decided not to prosecute the administration of Oslo Prison, the prison healthcare service, the District Court or the judges involved in the decision to place X in pre-trial detention. The police found that none of the authorities involved had committed a grossly negligent breach of their official duty or professional misconduct and that therefore no criminal offence had been committed under Article 172 of the Criminal Code. The police also concluded that the prison healthcare service was not guilty of a substantive breach of its duty to provide proper health services pursuant to section 67 of the Healthcare Personnel Act. The applicant was informed of that decision by a letter on the same day. 48. On 12 January 2021 the applicant lodged a complaint against that decision, reiterating that his son had been sentenced to compulsory mental health treatment and that instead he had been detained in an ordinary prison and that everybody had known that he had been seriously mentally ill. He should therefore have been detained in an institution or a hospital. 49. On 5 March 2021 the Oslo regional public prosecutor’s office (“the prosecutor’s office”) upheld the Oslo police’s decision not to prosecute (see paragraph 47 above), referring to the assessment by the County Governor of Oslo and Viken of 28 August 2020 (see paragraph 46 above). 50. On 26 March 2021 the County Governor of Oslo and Viken issued a decision concluding that, contrary to section 4-1 of the Municipal Health and Care Services Act, the prison healthcare service had not provided adequate health services to X after 14 February 2020 as there had been no entries in his medical records after that date. The relevant part of that decision reads as follows:
“Although the patient was in a treatment process managed by an external psychiatrist, it was the prison healthcare service that was closest to the patient on a daily basis and therefore had the opportunity to monitor and detect any changes in his mental health status, such as an increased risk of suicide. The fact that there is no documentation of any follow-up healthcare in prison after 14 February 2020 is considered to be a deviation from good practice of such a degree as to amount to a breach of professional care. The prison healthcare service has noted that the treatment providers at IHT Reinsvoll were clear about their responsibility, but that information was otherwise sparse. This may indicate that the communication and exchange of information between the specialist health services responsible and the healthcare service did not function optimally.”
The County Governor’s decision of 26 March 2021 could not be appealed against, but the prison healthcare service was asked to provide a statement on how it would ensure proper healthcare in the future. 51. On 31 May 2021 the applicant was informed that the prosecutor’s office would not reverse the decision of 5 March 2021. The latter decision was taken after the public prosecutor had consulted the County Governor of Oslo and Viken, who confirmed his recommendation not to prosecute made in the letter of 28 August 2020 (see paragraph 46 above) despite shortcomings subsequently established as a result of his administrative supervision of the prison healthcare service’s duties (see paragraph 50 above). 52. On 14 June 2021 the applicant lodged a complaint against that decision to the Director of Public Prosecutions who, in a letter dated 28 June 2021, requested more information regarding the County Governor’s recommendation to the police not to conduct a further criminal investigation. 53. On 9 September 2021 the Director of Public Prosecutions dismissed the applicant’s complaint. He was informed of that decision by a letter dated 23 April 2021 and appealed against it. 54. On 27 September 2021 the prosecutor’s office informed the applicant that his complaint had been dismissed. The decision was final and could not be appealed against. Investigation by the County Governor of Innlandet
55. On 30 September 2020 the County Governor of Innlandet concluded that the facts of the case did not disclose a violation of the Innlandet Hospital Trust’s requirement to provide X with adequate health services. Moreover, the County Governor stated that it was unclear whether IHT Reinsvoll had been involved in X’s treatment apart from continuing to administer his injections and conducting short conversations with him on those occasions. 56. On 23 April 2021 the Oslo police prosecutor decided not to prosecute the Innlandet Hospital Trust. The decision was based on the County Governor of Innlandet’s conclusion of 30 September 2020 (see paragraph 55 above). 57. By a letter dated 28 September 2021 the Oslo Attorney General notified the applicant that his complaint regarding IHT had also been dismissed. RELEVANT LEGAL FRAMEWORK AND PRACTICE
RELEVANT DOMESTIC LEGISLATIONThe Code of Criminal Procedure

58. The relevant provisions of the 1981 Code of Criminal Procedure (straffeprosessloven), as in force at the relevant time, provided as follows:
Article 186
“A person who is arrested or imprisoned has the right to unrestricted written and oral communication with his or her public defence counsel. In addition, the court may, to the extent that the investigation of the case so requires, order that the imprisoned person shall not receive visits or send or receive letters or other correspondence, or that visits or correspondence may only take place under police control. This does not apply to correspondence with and visits from public authorities unless expressly stated in the order. Imprisoned persons under the age of 18 shall be able to receive visits or send or receive letters [to and] from their close family unless there are special circumstances. The court may also order that the prisoner shall not have access to newspapers or broadcast services or that he shall be excluded from contact with certain other prisoners (partial solitary confinement). The court may leave it to the prosecuting authority to decide which inmates the imprisoned person shall be excluded from associating with. The decision shall state how the investigation will be compromised if the imprisoned person is not subject to a ban or control in accordance with this provision. The decision shall also state that the use of a ban or control is not a disproportionate intervention ...”
Article 186a
“The court may decide that the imprisoned person shall be excluded from the company of the other inmates (complete solitary confinement) when remand in custody has been ordered pursuant to Article 184 second paragraph, cf. Article 171, first paragraph, second sub-paragraph, and there is an obvious risk that the imprisoned person will jeopardise evidence in the case if he is not kept in solitary confinement. If the accused is under 18 years of age, solitary confinement cannot be ordered ...”
Legislation on the right to healthcare in Norway
59. The relevant provisions of the 2011 Municipal Health and Care Services Act (helse- og omsorgstjenesteloven) read as follows:
Section 4-1 – Adequacy
“Health and care services offered or provided under this Act shall be adequate. The municipality shall organise the services so that:
(a) the individual patient or user is provided with comprehensive and coordinated health and care services;
(b) the individual patient or user is given a dignified service offer;
(c) the health and care services and personnel who provide the services are able to fulfil their statutory obligations; and
(d) adequate professional expertise is ensured in the services.
...”
60. The relevant provisions of the 1999 Healthcare Personnel Act (helsepersonelloven), which applies to healthcare professionals and organisations that provide healthcare in Norway, provide as follows:
Section 4 – Adequacy
“Healthcare personnel shall perform their work in accordance with the requirements of professional responsibility and diligent care that can be expected based on [their] qualifications, the nature of their work and the situation in general. Healthcare personnel shall act in accordance with their professional qualifications and shall obtain assistance or refer patients onwards where necessary and possible. If the patient’s needs so require, professional practice shall be carried out in cooperation and interaction with other qualified personnel. Healthcare personnel have a duty to participate in developing individual plans when a patient or user is entitled to such a plan under section 2-5 of the Patient and User Rights Act. When collaborating with other healthcare personnel, the doctor and dentist shall make decisions on medical and odontological issues relating to the examination and treatment of the individual patient. The Ministry may in regulations decide that certain types of healthcare may only be provided by personnel with special qualifications.”
Section 67 – Penalty
“Anyone who intentionally or through gross negligence violates the provisions of this Act or pursuant to it shall be punished by a fine or imprisonment of up to three months.”
 
61. Section 2-2 of the 1999 Specialist Health Services Act (spesialisthelsetjenesteloven) reads as follows:
Section 2-2 – Duty of adequacy
“Health services offered or provided in accordance with this Act shall be adequate. The specialist healthcare service shall organise its services so that personnel who perform the services are able to comply with their statutory duties, and so that the individual patient or user is provided with a comprehensive and coordinated range of services.”
Right to healthcare in Norwegian prisons
62. Prisoners in Norway are entitled to the same health services as the general population. The prison healthcare service is run by the municipality as a primary health service, even though it is located within the prison. Section 4 of the Execution of Sentences Act (straffegjennomføringsloven) provides that the Correctional Service must ensure, through cooperation with other public agencies, that inmates receive the services to which they have a statutory right, which includes the same right to healthcare as the rest of the population. This requires collaboration at national, regional and local level with the relevant healthcare providers. 63. If there is any indication that a detainee is ill, or if he or she requests health services, prison staff must put him or her in touch with the public health service (Regulation 3-16 of the Execution of Sentences Regulations (forskrift om straffegjennomføring)). For a detainee to receive healthcare, a doctor or other healthcare professional may need to visit the prison (section 51 of the Execution of Sentences Act); alternatively, he or she may need to access health services outside prison as escorted leave or during a leave of absence. In exceptional cases, a detainee may be transferred to serve all or part of his or her prison sentence in a treatment or care institution (section 12 of the Execution of Sentences Act) or may be admitted to hospital if treatment of an illness is necessary and cannot be given in prison (section 13 of the Execution of Sentences Act). This applies to both somatic hospitals and institutions under the mental healthcare system. 64. On 5 November 2018 the Directorate of the Norwegian Correctional Service published national guidelines on preventing and managing self-harm, suicide attempts and suicide in prison (“the suicide prevention guidelines”), which were distributed to all prison regions with the request that all levels take the necessary steps to ensure their effective implementation. The guidelines emphasise that interaction with the prison health service is of key importance. 65. According to Oslo Prison’s internal guidelines, the prison healthcare service conducts preliminary interviews with all new detainees within twenty-four hours of their arrival and assesses whether there is a need for follow-up and, if so, what kind is required. Unit 1 of Oslo Prison is a secure unit designed to hold prisoners who need supervision and close follow-up for mental or physical health issues. Its staff collaborate closely with the prison healthcare service and the FPP, whose employees attend planning and morning meetings and are contacted when necessary. 66. In 2023 the Ministry of Justice and Public Security proposed amendments to the Execution of Sentences Act and the Municipal Health and Care Services Act. The proposal followed criticism in previous years, particularly about the use of solitary confinement in prisons. It also addressed a general concern in relation to mentally ill persons as follows:
“The Norwegian Human Rights Institution (NIM) has on various occasions pointed to mentally ill persons in prison as a particular human rights challenge for Norway. Among other things, NIM has stated that the use of security cells for mentally ill, suicidal and self-harming inmates may, under the circumstances, constitute a violation of Article 3 of the Convention. Furthermore, NIM has recommended that a general rule be established that inmates have the right to spend at least eight hours outside their cells ... During 2018 and 2019, the UN Human Rights Committee, the UN Committee against Torture (CAT) and the [Council of Europe] Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) also criticised solitary confinement and coercion in prison. These committees are tasked with monitoring whether Norway and other countries fulfil their obligations in accordance with key human rights conventions. Among the issues that have been highlighted are that ... inmates who are mentally ill are isolated and do not receive adequate healthcare ... it is difficult to transfer inmates who are seriously mentally ill to psychiatric hospitals ... it can take a long time before an inmate in a security cell is supervised by healthcare personnel ... supervision by healthcare personnel should be systematic and not depend on the assessment of need by prison staff.”
Compensation for violations of the ConventionCivil liability of the authorities

67. The general provisions regarding the State’s liability for damage are set out in the 1969 Compensation Act (skadeserstatningsloven). Section 2-1, which assumes that there has been pecuniary (economic) loss and does not provide for compensation for non-pecuniary damage, provides as follows:
Section 2-1 – Employers’ liability for employees
“1. The employer is liable for injury caused intentionally or negligently during the employee’s performance of work or duties for the employer, taking into account whether the requirements that the injured party can reasonably expect of the business or service have been disregarded. Liability does not include damage caused by the employee going beyond what can reasonably be expected according to the nature of the business or field of activity and the nature of the work or office. 2. In this context, employer means the public sector and any other organisation that employs someone in its service, whether or not in gainful employment. 3. Employee means any person who performs work or holds a position in the employer’s service, with the exception of positions as employee representatives in another enterprise. Employees also include agents in the public sector, those serving in the Norwegian armed forces and others who are required to perform public service, as well as inmates, patients and so forth who participate in work activities in the Norwegian Correctional Service’s institutions, health institutions and so forth. 4. The Patient Injury Act applies to patient injury compensation.”
68. Section 3-5 concerns compensation for non-pecuniary damage and provides as follows:
Section 3-5 – Compensation (redress) for non-pecuniary damage
“Anyone who intentionally or through gross negligence:
(a) causes personal injury; or
(b) causes offence or engages in misconduct as mentioned in section 3-3 may, irrespective of whether exemplary damages are awarded pursuant to section 3-2 or standardised damages pursuant to section 3-2a, be ordered to pay the aggrieved party such a lump sum as the court finds reasonable as compensation (redress) for the pain and suffering caused and for another offence or damage of a non-economic nature. In the event of an offence or misconduct as mentioned in Articles 299 or 302 of the Criminal Code, particular emphasis shall be placed on the nature of the act, how long the relationship has lasted, whether the act is an abuse of a relationship of kinship, care, dependency or trust, and whether the act was committed in a particularly painful or offensive manner. If several persons have jointly caused injury, caused offence or engaged in misconduct, separate claims for redress may be made for each person responsible. In the assessment under the first sentence, particular emphasis shall be placed on the increased burden on the aggrieved party as a result of several people acting jointly. A person who has intentionally or through gross negligence caused the death of another person may be ordered to pay the deceased’s spouse, cohabitant, child or parents such compensation as mentioned in the first paragraph.”
69. The relevant provisions of the 2001 Patient Injury Act (pasientskadeloven) read as follows:
Section 2 – Compensation for patient injury
“The patient and others who have suffered loss as a result of patient injury shall be entitled to compensation if the injury results from:
(a) negligence in the provision of health services, even if no one can be held responsible;
... (e) circumstances that give rise to liability for the health and care service or healthcare personnel under the general rules on compensation. Consideration shall be given to whether the requirements that the injured party can reasonably place on the organisation or service at the time of the injury have been disregarded. Insufficient resources shall not give rise to liability if the distribution of resources has been reasonable and the organisation generally maintains a reasonable standard. Even if there is no basis for liability for damage under the first and second paragraphs, compensation may exceptionally be paid when a patient injury has occurred that is particularly large or particularly unexpected, and which cannot be regarded as the result of a risk that the patient must accept. Emphasis shall be placed on whether sufficient information has been provided in advance.”
Section 4 – Other compensation rules
“The assessment of loss, participation of the injured party, etc. is governed by the ... [Compensation Act] and the general rules of tort law. However, compensation (redress) for non-pecuniary damage under section 3-5 of the Compensation Act and losses of less than 10,000 [Norwegian kroner (NOK)] are not compensated under this Act. The Ministry may issue regulations on the calculation of non-pecuniary compensation in patient injury cases that supplement or deviate from the rules in section 3-2 of the Compensation Act.
....”
Criminal liability of the State
70. Criminal liability for improper treatment of patients is governed by the Healthcare Personnel Act and the Specialist Health Services Act. The relevant provisions are cited in paragraphs 60 and 61 above. Case-law developments
71. On 3 March 2010 the Supreme Court adopted a judgment (Rt-2010-291) concerning a claim for compensation for pecuniary damage for a violation of the Convention. It concluded that such claims could be based on section 2-1 of the Compensation Act. The relevant part of the judgment reads as follows:
“It follows from Article 1 of Protocol No. 1 to the Convention that an interference with property rights requires a legal basis and, in accordance with Article 13, States are obliged to establish satisfactory arrangements in national law to test the rights conferred by the Convention and to redress violations of such rights. In this case, [the injured party] has obtained a judgment that the Trondheim municipality’s decision to refuse a change of use is invalid. Under the provisions of section 2-1 of the Compensation Act, [the injured party] may also claim damages. This is obviously sufficient to satisfy Article 13 [of the Convention]. States are not obliged to establish systems of strict liability for violations of Convention rights.”
72. In a judgment of 11 March 2022 (TOSL-2021-107095) the Oslo District Court dealt with a claim for damages brought by three individuals against the Norwegian State, inter alia, on the basis of an alleged violation of Article 3 of the Convention as a result of regular body searches during their imprisonment. The District Court issued a declaratory judgement concluding that such practice constituted a breach of Article 3 of the Convention and Article 93 of the Constitution. It did not award them non-pecuniary damages, as it found no legal basis in Norwegian law for doing so. At the same time, it held that the domestic law should be amended to satisfy the requirements of Article 13 of the Convention:
“The Convention is incorporated into Norwegian law pursuant to section 2 of the Human Rights Act, and the question may therefore arise as to whether Article 13 of the Convention can be used directly as a legal basis for compensation. However, Article 13 of the Convention is not designed to be a national legal basis for compensation and does not contain any conditions for compensation ... This court also finds that the case-law on the use of Article 13 of the Convention as a direct legal basis for compensation is very unclear, both in the Convention and in the [relevant] European case-law.”
73. The above judgment was appealed against. In a judgment of 24 August 2023 (LB-2023-4761), the Borgarting Court of Appeal (lagmannsretten) found a violation of Article 3 of the Convention and Article 93 of the Constitution. It awarded the claimants non-pecuniary damages for the violations found directly on the basis of Article 13 of the Convention. 74. In a decision of 7 November 2023 (HR-2023-2095-U), the Appeals Committee of the Supreme Court granted the State leave to appeal on the issues of Articles 3 and 13 of the Convention and the right to seek a declaratory judgment together with a judgment on non-pecuniary damages for human rights violations. In that case, the State argued that, were the Supreme Court to find a violation of Article 3, the case would also raise the question of whether the applicants were entitled to a declaratory judgment and non-pecuniary damages on the basis of Article 13. In the State’s view, the Court of Appeal had incorrectly concluded that there were grounds for non-pecuniary damages and a declaratory judgment. 75. As regards the merits, in a judgment of 22 March 2024 (HR-2024-551-S), the Supreme Court, sitting as a Grand Chamber, ruled that there had been a violation of Article 3 of the Convention and Article 93 § 2 of the Norwegian Constitution. 76. On 26 June 2024, in its judgment HR-2024-1170-A the Supreme Court awarded non-pecuniary damages to the three former inmates relying on Article 13 of the Convention. The relevant parts of that judgment read as follows:
“(14) The case has been litigated in conjunction with case HR-2024-1169-A, in which judgement was handed down earlier today. Following the Grand Chamber judgement from the Supreme Court, the State no longer asserts that there is no basis for compensation for non-pecuniary damage. Otherwise, the case is in the same position as before the Court of Appeal.
... (26) The parties agree that A, B and C are entitled to compensation for non-pecuniary damage. However, the parties do not agree on what is the formal legal basis for the claim. The question is whether the claim for compensation is authorised ‘directly’ in Article 13 of the ECHR or in Norwegian non-statutory law.
... The legal basis for redress in this case
(35) Following the Grand Chamber judgement in HR-2024-551-S, the State no longer claims that the breaches of the Convention in our case are of a ‘minor nature’. The parties agree that A, B and C are entitled to compensation for non-pecuniary damage. However, the parties do not agree on the legal basis for the claim - Article 13 of the ECHR ‘directly’ or on a non-statutory basis. (36) I would like to mention that already in Rt-2013-588, the Supreme Court ruled that breaches of Articles 3 and 8 of the ECHR may entitle the victim to compensation for financial loss and non-pecuniary damage. The Supreme Court did not say anything about the legal basis for this. At the same time, it is clear that none of the established grounds for liability in Norwegian law gave entitlement to compensation in that case. (37) Article 13 of the ECHR has been incorporated into Norwegian law through section 2 of the Human Rights Act, cf. section 3. In my view, it therefore makes no difference whether the liability in this case be based ‘directly’ on Article 13 of the ECHR or on a non-statutory basis, since it is in both instances the obligations under Article 13 of the ECHR which represent the real justification. Based on what I have said above, it is in any event the case that it is the breach of the Convention, combined with Article 13 of the ECHR, which dictates that individuals who have had their human rights violated are entitled to compensation for non-economic damage, cf. HR-2024-1169-A, paragraph 85....”
77. In a parallel case, by a judgment of 25 May 2023 (LH-2022-170416), the Hålogaland Court of Appeal (lagmannsretten) concluded that a municipality had breached its obligations under Article 8 of the Convention following the issuance of a care order, mainly because it had reduced the biological mother’s contact rights without providing sufficient justification or considering how to facilitate the strengthening of family ties over time. The Court of Appeal awarded the mother non-pecuniary damages on a non-statutory basis, finding that this was necessary to fulfil the obligations under Article 13 of the Convention. On 26 June 2024 the Supreme Court awarded non-pecuniary damages for the above breach of the Convention rights basing its award on Article 13 of the Convention (HR-2024-1169-A).
2023 report by the Norwegian Parliamentary Ombud
78. Prior to the Supreme Court’s judgments 26 June 2024, the Parliamentary Ombud for Scrutiny of the Public Administration (“the Parliamentary Ombud”), under its Optional Protocol to the Convention Against Torture (OPCAT) mandate, had investigated how the Norwegian Correctional Service works to prevent suicide and suicide attempts in prisons, as well as control and supervision in the aftermath of a suicide. The investigation resulted in a report on suicide and suicide attempts in prisons (Rapport om selvmord og selvmordsforsøk i fengsel) published in 2023, which revealed several shortcomings. The report was based on written information from thirty-four high-security prisons, the Directorate of the Norwegian Correctional Service and the Norwegian Board of Health. It was noted that the assessment of suicide risk on admission or during a person’s time in prison was not always carried out by the prison, despite specific requirements in the applicable guidelines. Furthermore, preventive action plans were not always prepared for inmates with an elevated risk of suicide. 79. It was further noted that the Directorate’s suicide prevention guidelines (see paragraph 64 above) provided prisons with very little concrete information about evidence-based prevention measures against suicide, beyond very acute and short-term measures such as carrying out regular inspections and removing objects that might pose a danger. This was considered a significant weakness, further reflected in the prisons’ action plans for individual inmates. A large proportion of these plans were short-term logs of measures such as supervision, placement in a security cell or short conversations with officers. The plans contained few important measures such as social activation and increased contact with family or other inmates. It was also considered worrying that isolation through exclusion from the community and the use of security cells continued to be a key measure for prisons. 80. The Parliamentary Ombud considered that the deficiencies found created a clear risk that authorities would not fulfil their duty to safeguard inmates’ right to life and to freedom from inhuman and degrading treatment. 81. According to the Parliamentary Ombud, measures had to be implemented to ensure a systematic, uniform and professionally sound assessment of the suicide risk of inmates, both on admission and during their time in prison. In their view, prison suicide prevention measures should be strengthened and systematised by providing facilities with the most effective and evidence-based working methods possible, and solitary confinement should not be used as a means of preventing or managing suicide risk. Other domestic developments
82. The Norwegian Human Rights Institution (“NIM”) sent two letters to the Ministry of Justice and Public Security addressing the issue of compensation for non‑pecuniary damage for human rights violations. In its first letter, dated 29 August 2019, it pointed out the following:
“A starting point in Norwegian tort law is that compensation for non-pecuniary damage requires a legal basis. The general right to damages probably does not provide a basis for non-pecuniary damages in all cases where it is required under Article 13 of the Convention or Article 2 of the [International Covenant on Civil and Political Rights (ICCPR)]. A main problem is that both the Convention and ICCPR imply that the State can be held liable for non-pecuniary damage without qualified fault. Basically, the State cannot limit the right to claim compensation for non-pecuniary damage for violations of the Convention by imposing conditions on fault. Under the Compensation Act, compensation for non-pecuniary damage presupposes gross negligence. [Compensation for] non-pecuniary damage also requires personal injury, death or certain criminal offences, which are not necessarily the consequence of a breach of the Convention that provides a basis for compensation for non-pecuniary damage. In addition, the employer’s liability in section 2-1 of the Compensation Act only provides a basis for compensation for pecuniary damage ... With the incorporation of [Article] 13 of the Convention and [Article 2 of the ICCPR] into the Human Rights Act, compensation for non-pecuniary damage can be claimed directly on the basis of the aforementioned Convention provisions. Such claims can be brought before the courts. However, the right to an effective remedy in the Convention ... is not adapted to function as a direct basis for compensation in national law ... In Norwegian law, there are sector-limited schemes that can repair previous errors and violations by the State. How well these schemes safeguard human rights claims and offer an effective remedy varies. In areas where special arrangements do not exist, general tort law will often fall short. Claims must then be raised directly on the basis of the Convention rights and the right to an effective remedy. In many cases, it is unclear under which circumstances such a claim will lead to an effective remedy, and what kind of remedy it will provide a basis for ... Although in Norwegian law, depending on the circumstances, compensation for non‑pecuniary damage can be claimed on the basis of Article 13 of the Convention and [Article 2 of the ICCPR], the legal situation appears unclear and unpredictable. This applies, among other things, to questions about when compensation for non-pecuniary damage is necessary, the relationship to other forms of redress and the amount awarded for non-pecuniary damage. It is also the case that compensation for non-pecuniary damage in accordance with the Human Rights Act can create certain problems in integration with general tort law.”
83. In its second letter, dated 14 January 2022, it stated as follows:
“There is no general provision for compensation for non-pecuniary damage in the event of violations of the Convention, the Constitution, the ICCPR or other human rights in Norwegian law. Several court decisions are based on the notion that compensation for non-pecuniary damage requires a specific legal basis. In cases where the Supreme Court has awarded non-pecuniary damages, it has in several instances required a legal basis. This may also have been influenced by the extent to which the legislature had considered the limits of the compensation scheme in the relevant areas, such that an extension would conflict with their assumptions. It is unclear what a requirement for a special basis entails where weighty legal sources advocate a right to compensation ... Section 3-5 of the Compensation Act requires intent or gross negligence for non-pecuniary damages to be awarded. This [condition] will often not be met for violations committed by the State, for example because subjective fault cannot be demonstrated in individual cases, or because the violation consists of many minor acts that, taken together, exceed the threshold of tolerance under Article 3 of the Convention. Furthermore, compensation for non-pecuniary damage has traditionally been considered excluded except in cases where the perpetrator can be associated with the State by virtue of ‘organ liability’. In practice, this [condition] has been met in very few cases. It is clear that there is currently no legal provision that allows for compensation for non-pecuniary damage where a person has been subjected to a violation of Article 3 of the Convention outside of police custody or pre-trial detention, and where there is no evidence of intent or gross negligence.”
84. In 2022 the Ministry of Justice and Public Security appointed a commission to examine the issue of compensation for human rights violations. In its mandate of 8 December 2022, it was noted as follows:
“... There is no clear legal authority for compensation for human rights violations in Norwegian law. Employers’ liability under section 2-1 of the Compensation Act provides, in more detailed terms, a basis for claiming compensation for economic loss, while section 3-5 of the Compensation Act provides, under certain conditions, the right to claim compensation for damage of a non-economic nature (redress). There are also some special compensation schemes that may be relevant in the event of human rights violations, such as compensation for victims of violence and compensation under Chapter 31 of the Code of Criminal Procedure. However, questions can be raised as to whether the possibilities of claiming compensation under Norwegian law fully cover those cases where Article 13 of the Convention and [Article 2 § 3 (a) of the ICCPR] require that an opportunity to claim compensation must be available nationally. On 1 April 2018 new rules came into force in the Swedish Torts Act, which regulate the right to claim compensation from the State or municipality for economic and non-economic loss for violations of the Convention. Regulation of the right to claim compensation for violations of the Convention also exists in Great Britain.”
85. The commission produced a report entitled “Norwegian legal regulation of the right to claim compensation for human rights violations”, which was submitted to the Ministry of Justice and Public Security by Professor Mujezinovic Larsen on 1 August 2023. It contains the following statement regarding the applicability of section 3-5 of the Compensation Act to human rights violations:
“...the provision has limited significance in human rights violations, partly because in practice it will be difficult to establish intent or gross negligence on the part of the tortfeasor, and partly because liability under section 3-5 is personal and cannot be used to hold a public entity accountable.
... In my opinion, the legal sources unequivocally indicate the need in Norwegian law for legislation to regulate the right to compensation for both pecuniary and non-pecuniary damage in cases of violations of the [Convention] and the [ICCPR]. Existing grounds for compensation are insufficient, both individually and collectively, to meet the requirements for effective remedies under Article 13 of the Convention and Article 2 § 3 of the ICCPR. Under current Norwegian law, it is uncertain whether these provisions constitute independent legal grounds for awarding compensation and how they should be applied alongside (or instead of) other grounds for compensation. Even if one were to argue that the provisions provide a sufficient legal basis, the legal uncertainty surrounding this issue and the divergent application of these provisions by Norwegian courts indicate that it is not sufficiently effective to rely solely on them.”
relevant International materials
86. The Recommendation of the Committee of Ministers to member States of the Council of Europe on the European Prison Rules (Rec (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, as revised in 2020, in so far as relevant, reads as follows:
“12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.
12.2 If such persons are nevertheless exceptionally held in prison, there shall be special regulations that take account of their status and needs.”
87. The United Nations Standard Minimum Rules for the Treatment of Prisoners (“the Nelson Mandela Rules”), A/RES/70/175, as the global key standards for the treatment of prisoners adopted by the United Nations General Assembly on 17 December 2015, in so far as relevant, as follows:
“Rule 109
1. Persons who are found to be not criminally responsible, or who are later diagnosed with severe mental disabilities and/or health conditions, for whom staying in prison would mean an exacerbation of their condition, shall not be detained in prisons, and arrangements shall be made to transfer them to mental health facilities as soon as possible.”
88. The Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Norway from 28 May to 5 June 2018 and published its report on that visit in January 2019. The report included an examination of healthcare-related issues in Oslo Prison and concluded that it was often up to the police or custodial staff to assess and decide whether a prisoner should have access to a doctor. At Oslo Prison, any subsequent visit by healthcare staff rested on the decision of the prison officer in charge. The initial decision was reviewed every eight hours on weekdays and every twelve hours on weekends. In principle, a prisoner could stay in a security cell for a total of seventy-two hours without being seen by healthcare staff. Other relevant parts of the report read as follows:
“As regards the provision of health care, several shortcomings identified during the 2011 visit regrettably persisted. In particular, it remained the case that the medical screening of newly-arrived prisoners was often limited to an interview without a proper physical examination of the person concerned, and the recording and reporting of injuries to an outside body also remained deficient.
... It is a matter of serious concern that the delegation once again observed major problems in the prisons visited in transferring severely mentally-ill prisoners to psychiatric hospitals (especially for longer-term treatment). It was not uncommon for the prisoners concerned to be returned after only a few days from an acute psychiatric ward to the prison, where they did not benefit from the care and treatment required by their state of health. In particular at Oslo Prison, several severely mentally-ill prisoners had sometimes virtually been sent back and forth between the prison and a psychiatric hospital. At the outset of the visit, the Norwegian authorities indicated that the plan which had already existed in 2011 to construct a new regional psychiatric security department in the Oslo area had not yet materialised. Although a definitive policy decision had meanwhile been taken to construct such a facility with a capacity of 32 beds, the precise location still remained to be determined. The Committee urges the Norwegian authorities to implement the above-mentioned plan as a matter of priority. Pending the construction of a new regional psychiatric security department, urgent steps should be taken jointly by the Ministry of Justice and Public Security and the relevant health authorities to ensure that prisoners suffering from a severe mental disorder are transferred to an appropriate psychiatric unit/hospital for as long as is required by their state of health.”
89. On 28 June 2019 the Norwegian authorities published a response to the issues addressed in the CPT report, the relevant parts of which read as follows:
“The Directorate of [the] Norwegian Correctional Service and the Norwegian Directorate of Health have cooperated on preparing a report on the follow-up of prisoners with mental health disorders and/or substance abuse problems and proposed further measures to strengthen the services provided to prisoners in need of mental healthcare and cross-disciplinary specialist treatment for substance abuse issues from the specialist health services. Measures were also proposed to enhance cooperation between agencies and measures within the Norwegian Correctional Service, such as increased activation of prisoners and measures for vulnerable groups in prison. The Ministry of Health and Care Services has commissioned the Centre for Research and Education in Forensic Psychiatry and Psychology (SIFER) to prepare a report on how the healthcare service offering can be strengthened and organised. The Ministry will follow up both of these reports. Furthermore, there are separate outpatient clinics providing mental healthcare at the largest prisons. The available capacity in mental health treatment for prisoners will be improved over the coming years by building more new hospitals/units for individuals with serious mental health illness.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
90. Relying solely on the substantive aspect of Articles 2 and 3 of the Convention, the applicant complained that the authorities had not done what could reasonably have been expected of them to prevent his son, who had suffered from a severe psychiatric disorder, from committing suicide in detention. He also complained about his son’s solitary confinement and of the inadequacy of the medical care he had received in detention. 91. As a master of the characterisation to be given in law to the facts of the case before it (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 127, 20 March 2018), and bearing in mind its previous case‑law in respect of such matters (see, for example, Mustafayev v. Azerbaijan, no. 47095/09, § 42, 4 May 2017), the Court considers that the applicant’s complaints should be examined under Article 2 of the Convention, the relevant part of which reads as follows:
“Everyone’s right to life shall be protected by law ...”
AdmissibilityThe parties’ submissions

(a)   The Government
92. The Government claimed that the applicant had failed to exhaust domestic remedies in respect of his complaints, arguing that the fact that he had reported his son’s death to the police and appealed against the decision not to prosecute had been insufficient. 93. In particular, they argued that the applicant should have brought a civil action before the domestic courts for compensation for non-pecuniary damage under sections 2-1 or 3-5 of the Compensation Act. They also referred to section 2 of the Patient Injury Act, which provided that the patient and others who had suffered pecuniary damage as a result of an injury were entitled to compensation if the injury had resulted from negligence in the provision of health services. 94. The Government further submitted that domestic law allowed for declaratory judgments to be sought in certain circumstances and that the applicant could have lodged a complaint with the Parliamentary Ombud. In their view, the aggregate of the above-mentioned available remedies satisfied the requirements of Article 13 of the Convention. 95. They further submitted that the most relevant remedy in the present case seemed to be a declaratory judgment accompanied by a claim for compensation for non-pecuniary damage under section 3-5 of the Compensation Act. However, as the Government admitted at the time of lodging of their observations, it was not possible to conclude definitively whether this was the case because no domestic court had been provided with the opportunity to assess the factual and legal questions raised in the present case. 96. In their additional observations on the matter, the Government pointed out that in judgment LB-2023-4761 the Court of Appeal (see paragraph 73 above) held that non-pecuniary damages could be awarded, which must have illustrated reasonable prospects of success. The Supreme Court’s judgment issued in the same case on 26 June 2024 awarded the plaintiffs non-pecuniary damage for a breach of Article 3 of the Convention (see paragraph 76 above). (b)   The applicant
97. The applicant claimed that he had had no effective domestic remedy available to him, precisely because none of the remedies suggested by the Government afforded him reasonable prospects of success at the time of lodging of his complaint with the Court. 98. He argued that the right to compensation for non‑pecuniary damage for human rights violations was highly uncertain in the Norwegian legal system. In this connection, he maintained that the prevailing understanding at domestic level was that individuals were only entitled to compensation for human rights violations if liability could be established on the basis of Norwegian tort law, under which the right to compensation for non-pecuniary damage required the establishment of subjective fault. 99. The applicant further submitted that a civil remedy under section 2-1 of the Compensation Act would have been ineffective in the circumstances, as that provision related solely to compensation for pecuniary damage. Moreover, compensation for non-pecuniary damage under section 3-5 of the Compensation Act would have required him to prove intent or gross negligence on the part of the State, which was why an action under that provision could not be considered an effective remedy in the present case. 100. The applicant submitted that there was nothing to indicate that the Norwegian courts would have found that any individual involved in the instant case met the high threshold of gross negligence or intent required by the relevant provision. On the contrary, the Oslo police, the police prosecutor, the Oslo regional public prosecutor’s office, the Director of Public Prosecutions and the County Governors of Oslo and Viken and Innlandet had all reviewed the case thoroughly with the specific aim of considering wrongdoing and fault on the part of those involved and had been unable to establish gross negligence or intent on the part of any of them. 101. The applicant further pointed out that a commission had recently been appointed to examine the issue of compensation for human rights violations. Such a mandate demonstrated that the Norwegian authorities were fully aware of the problems regarding the ineffectiveness of domestic remedies for violations of Articles 2 and 3 of the Convention. 102. Furthermore, referring to cases TOSL-2021-197095 and LB-2023-4761 (see paragraphs 72 and 73 above), the applicant argued that, at domestic level, the State generally contested claims for compensation for non-pecuniary damage for human rights violations brought before the domestic courts. He submitted that, in those cases before the domestic courts, the State had argued that victims of human rights violations were not entitled to compensation in respect of either pecuniary or non-pecuniary damage. Even in cases where the judges had agreed that victims should be entitled to compensation, it had been found that the Norwegian system did not allow for such an award. The applicant further emphasised that the fact that the State had been granted leave to appeal to the Supreme Court in the above case alone showed that the Norwegian legal system lacked an established and consistent practice in this area. Moreover, the State had argued in their appeal in that case that Article 13 of the Convention did not constitute a legal basis for compensation under Norwegian law. 103. In the applicant’s view, the subsequent findings of the Supreme Court in the two judgments rendered on 26 June 2024 (see paragraphs 75 and 77 above) did not alter the fact that at the time that he had lodged his complaint with the Court the existence of any effective remedy under Norwegian law had been highly uncertain.

Outcome for Article 2: violation