KLEUVER v. NORWAY
Inadmissible
Georg Ress
The first applicant is a Dutch national, born in 1964 and living in The Hague, the Netherlands. The second applicant is her son born on 11 November 1990. The applicants are represented before the Court by Mr Knut Rognlien, a lawyer practising in Oslo. The first applicant’s father died when she was at the age of 11. Thereafter her mother remarried. According to her doctor the first applicant was treated several times by a psychiatrist as she was very depressive, especially in the years 1987, 1988 and 1989. As part of the treatment she was from time to time provided with medication. The first applicant had a sister and a stepbrother. The latter, who died in 1989, was according to the first applicant shot dead by the police while in police custody in Belgium. Following her brother’s death the first applicant became further psychologically imbalanced and went on sick leave for two weeks. Her mother attempted suicide (by taking pills) and had alcohol problems. At the time of the events described below the first applicant had no previous criminal record and had been in gainful employment as a secretary since the age of 18. She had a partner with whom she did not cohabit. On 27 February 1990, the first applicant explains that she bought on a street in The Hague a Citroen 2CV from a person who she knew just as “John”. She had the car registered and drove towards Scandinavia in the evening of the same day. The week beforehand, she had deliberately tried to become pregnant and when she left she was aware that she had succeeded in this. She was pregnant with the second applicant. On 1 March 1990, the Norwegian Police stopped her having been notified by the Danish customs authorities that she had given them peculiar information concerning her travel destination, etc. The first applicant was arrested after the police had found 4.951 Kg of amphetamine in the Citroen 2CV that she had driven from the Netherlands to Norway. The drug had a particularly high degree of purity; some 63-71 weight per cent, with a street value assessed at NOK 5,000,000. The first applicant stated to the police that she had neither knowledge of Norway nor any acquaintances in the country, she was in possession of a limited amount of money upon arrest and had no credit card, to her employer in the Netherlands she had said that she had to go on a holiday with her mother who had been to hospital after taking an overdose. On 3 March 1990 she was remanded in custody at Bredtvedt National Prison. On 31 May 1990 she was transferred to Drammen District Prison, as she had made an attempt to flee, assisted by two persons visiting her from the Netherlands who had left a filing tool under the prison fence. On 4 July 1990 she was transferred back to Bredtvedt Prison. After a hearing on 10 and 11 September 1990, the Eidsivating High Court (lagmannsrett) jury answered the charges in the negative, whereupon the judges sitting in the case unanimously set aside the first applicant’s acquittal by the jury as obviously erroneous and ordered a retrial. In order to facilitate the applicant’s particular situation and to co-ordinate future measures vis-à-vis the mother and child, several discussions were held between representatives from the child care authorities, the relevant hospital, the prosecution, the police and her lawyer, who throughout the first applicant’s stay in Norway, until she unilaterally decided to send the second applicant to his grandmother in the Netherlands, were in close co-operation with one another. To this end also a meeting was held at Bredtvedt Prison between all the persons concerned, including the first applicant and her lawyer. She was able to communicate fluently in English. After the first applicant’s attempted flight, security became an issue and different options were considered. Between 14 August and 8 November 1990, the first applicant went eight times to Aker Hospital in Oslo for prenatal checks, including ultra sound examinations. Most times she was accompanied by uniformed police officers and was obliged to wear handcuffs during her transportation and while in the waiting room with other patients. She felt humiliated vis-à-vis other patients because of the presence of uniformed police and the use of handcuffs. The handcuffs were removed before the actual medical examinations and, with one exception, before she entered the examination room. Some times the first applicant was accompanied by plain-clothed police officers from the anti-drugs squad who did not apply handcuffs, as they felt they had sufficient knowledge of her and her case to keep her under constant surveillance without applying handcuffs. The first applicant found it unacceptable that she could not always be accompanied by the latter police officers. On one occasion, when the applicant had an ultra sound examination, two male police officers followed her into the examination room, as it was on the ground floor with windows whereby one could leave the building. One of the officers then assisted as an interpreter at the request of the midwife who did not master English. He inter alia explained to the first applicant what could be seen on the screen during the examination. The examination was limited to a plain ultra sound examination. Only at a later time did the first applicant complain about the police officers’ presence in the room during the ultra sound examination. On 11 November 1990 the first applicant gave birth to the second applicant at Ullevål Hospital in Oslo, one of the best-equipped hospitals in the country. During her hospitalisation, which lasted some nine days, she was guarded by two police officers. At that time there had already been one incident in Norway where a female detainee had fled in connection with giving birth at a hospital. There were other incidents were a detainee had fled when taken to hospital for medical reasons. On one such occasion, at the least, the detainee had been armed. Shortly before the first applicant gave birth, the two uniformed police officers followed her at a close distance as she and the female deputy director of the prison, serving as her support person, walked up and down the corridor. While the first applicant gave birth, the two officers sat outside the delivery room. The door to the room was closed and a folding screen was positioned between the first applicant’s bed and the door. At the first applicant’s request, the deputy director attended the birth as her support person. The latter was a psychologist specialised in social psychology who had spent much time talking to and assisting the first applicant during her detention. In retrospect it had been observed that, on the whole, the efforts made by the prison staff in order to accommodate the first applicant’s wishes and needs had almost been at the expense of those made vis-à-vis other prisoners. The first applicant’s mother came to visit and assist her daughter the day after the second applicant was born. On 19 November 1990 the first applicant was released from the hospital and transferred back to the prison. It was not deemed suitable that the son stay with his mother in Bredtvedt prison, which did not have the necessary facilities. This institution was considered unsuitable for keeping small children, in view of inter alia its architectural disposition, the outdoor areas, the sanitary conditions and the composition of the prison population. The latter comprised all categories of detainees, including mentally unstable persons held in security detention. A number of detainees were struggling with poor mental health, infectious diseases, consumption of intoxicating substances as well as deviant behaviour. The second applicant was instead placed in the Aline Child Care Centre offering high quality services for the mother and the newborn. The Centre was situated in Oslo at a relatively close distance to the Bredtvedt prison. Arrangements were put in place to enable the baby to be fed with his mother’s milk. Until 17 December 1990 the first applicant was transported 5 times a week to visit the boy at the Centre for 1 1/2 hour each time. On a few occasions, she was accompanied by police officers. Some times, as was the case during the prenatal checks, the officers wore uniform and applied handcuffs on the first applicant until she received her son. On other occasions her guardians were plain cloth police officers from the anti-drug squad who did not apply handcuffs on her. Thereafter, for a month, the boy was brought to the prison for 2 ½ hours a day on weekdays and 4 ½ hours a day on weekends. From 22 to 25 January 1991, the second applicant was hospitalised at Ullevål Hospital because of a lung virus. Its paediatric ward was located on the ground floor. The first applicant was able to visit him once for a duration of 20 minutes, on which occasion she was wearing so-called transport cuffs – that was a chain attached to a foot and the opposite arm. Under these conditions she was permitted to be alone with the baby in a separate room while being observed by the police only through a screen. However, she could hold her baby, but was allegedly unable to nurse him and put him back in bed. Afterwards the mother received her son in the prison every day. On her return to the prison after the above-mentioned visits, the applicant was regularly body searched, although some prison guards omitted to do this. The searches were carried out in accordance with standard practice. In a separate room she had to undress completely before a female prison officer, who, without any physical contact with her, inspected her hair, ears, mouth, arm pits and the crotch and made her squat and swing to and fro to ensure that she would not bring any unauthorised items into the prison. After 17 December 1990, such searches were occasionally also carried out after the boy had visited his mother in prison. The Aline Child Care Centre had on 28 December 1990 received information suggesting that the son showed signs of nervousness, and it was thought that it might be due to drug abuse by his mother Because she had refused 3 times to allow a body search, the first applicant was placed in an isolation cell only equipped with a mattress, for a duration of a couple of hours and once for some 24 hours. She made a complaint in writing. As of 3 January 1991 she was no longer searched after her son’s visits as she accepted to give urine samples enabling the prison administration to verify possible drug abuse. The tests proved negative. On 5 February 1991, after a retrial, the High Court convicted the applicant and sentenced her to 6 years’ imprisonment, from which the 342 days already spent in custody were to be deducted. This was deemed to be a relatively lenient sentence for such a serious drug offence, the reasons being her pregnancy, the birth in detention on remand and the fact that it would be an extra burden for her to serve a long prison sentence in a foreign country, with language difficulties and the absence of close relatives. On 10 February 1991, at the initiative of the first applicant, the second applicant left Norway with his maternal grandmother, who then assumed the care for the second applicant in the Netherlands. This was before her conviction and sentence had gained legal force and before the Norwegian authorities had taken a stance on where the first applicant should serve her sentence. The prosecution, for its part, had in a letter of 7 February 1991 to the prison authorities expressed the view that, since she was a Dutch national without any links to Norway, the service of the sentence should not be postponed; otherwise she would have to remain in detention on remand. Although there was no general agreement about the serving of sentences between the Netherlands and Norway, the prosecution was not opposed to the first applicant serving the sentence in her home country. The first applicant was allowed to call (free of charge) her mother and son for 20 minutes a week, in accordance with the applicable rules. On 25 May 1991 she sought to have the time extended. Her request was rejected by the Prison Director on 4 June 1991, which decision was upheld by the Prison Board on 14 October 1991, as there were no extraordinary circumstances to warrant an extension of the time offered. As of 30 October 1991, she was granted an extra call per week at her own expense. As of 21 February 1992, the first applicant was transferred to a wing with a more lenient regime, on a contractual basis of good behaviour. Thereafter, there was no time restriction on her use of the telephone. On 5 June 1992 the first applicant requested a pardon from the Ministry of Justice, which request was rejected. It was observed that the condition of her health and the interests of the mother and child in being reunited could not outweigh the interest of avoiding giving an undesirable signal with respect to the use of pregnant women as drug couriers. Her subsequent appeal against this refusal was successful, having regard to her depressive and psychotic mental state and concerns about the child’s future care and development. The first applicant was released on 17 July 1992 and returned to the Netherlands where she reunited with her son. In the meantime, she had several times been visited in the prison by her son and mother who had come from the Netherlands. Prior to being pardoned, the first applicant had already brought proceedings against the State seeking a declaration (fastsettelsessøksmål) of a violation of Articles 3 and 8 of the Convention, as well as compensation. Her claim was rejected by the Oslo City Court (byrett) in February 1993 and dismissed by the Eidsivating High Court in September 1993, which decision was upheld by the Appeals Selection Committee of the Supreme Court in October 1994. She then sought compensation under a different procedure, requesting an executory judgment (fullbyrdelsessøksmål). By judgment of 17 January 1997, the High Court upheld the City Court’s above-mentioned judgment, as did the Supreme Court in a judgment on 2 July 1998. Before the Supreme Court, the first applicant unsuccessfully challenged the participation of one of its judges, Mr Justice Pedersen. The judge in question, who normally served as President of Eidsivating High Court, had as a temporary (konstituert) judge occupied a seat in the Supreme Court from 1 May to 6 July 1998, vacated by a judge who had retired, and had replaced another judge on sabbatical leave from 17 August to 31 December 1998. On each occasion, the Supreme Court had first inquired of him whether he might be willing to take on the assignment and, after he had given an affirmative answer, the King, sitting in Government Cabinet, had taken the decision to appoint him as a replacement judge for the period in question. At the material time Mr Pedersen had not applied for any vacant seat in the Supreme Court.