Article 7

New penal provision against torture

54. On 2 July 2004, a specific penal provision against torture was adopted as section 117a of the General Civil Penal Code. Section 117a prohibits a public official from causing injury or serious bodily or mental pain to a person in order to obtain information or a confession, in order to punish, threaten or coerce someone, or because of his or her religion, race, skin colour, sex, sexual orientation, lifestyle or national or ethnic origin. A person who commits torture is liable to imprisonment for a term not exceeding 15 years. Serious or grave torture resulting in death is punishable by imprisonment for a term not exceeding 21 years. This provision is based on the recommendations of the UN Committee against Torture. The acts covered by the provision were previously covered by the more general provisions on use of force, threats, bodily injury, abuse of power, etc., of the Penal Code.

Prisons and police custody (pending trial)

55. The Criminal Procedure Act was amended by Act of 28 June 2002 No 55, the main purpose of which was to reduce the overall use of solitary confinement and to strengthen judicial supervision. The amendment entered into force 1 October 2002.

56. According to the previous wording of section 186 of the Criminal Procedure Act, the court could by order decide that a person in custody should not be allowed to receive visits or send or receive letters or other consignments, or that visits or exchange of letters could only take place under police control. Based on such orders, the police were at liberty to decide whether the prisoner was to be held in solitary confinement or not. According to the revised section 186 and new section 186 a, the use of solitary confinement is now dependent on an explicit authorisation by a court.

57. Moreover, in order to ensure that solitary confinement is not used unless it is strictly necessary, solitary confinement may only be prescribed if there is an immediate risk that the person arrested will otherwise interfere with evidence in the case, e.g. by removing evidence or influencing witnesses or accomplices. In addition, solitary confinement may not be prescribed if it would be a disproportionate intervention in view of the nature of the case and other circumstances.

58. Furthermore, solitary confinement is subject to time limits set by the court. The time limit must be as short as possible and may not exceed two weeks. It may be extended by order up to two weeks at a time. If the nature of the investigation or other special circumstances indicate that a review after two weeks would be pointless and the person charged is more than 18 years of age, the time limit may be extended by four weeks at a time.

59. Maximum time limits for the use of solitary confinement have also been introduced. A prisoner shall not be held in solitary confinement for more than six consecutive weeks when the offence for which the person is charged could incur a sentence of less than six years’ imprisonment. When the maximum sentence is more than six years’ imprisonment, the prisoner may be held in solitary confinement for 12 consecutive weeks. In exceptional cases, the detainee may be held in solitary confinement for more than 12 weeks if necessitated by special circumstances. A detainee under 18 years of age may under no circumstances be isolated for more than eight consecutive weeks, regardless of the maximum sentence.

60. When a person has been remanded in custody pending trial and is subsequently convicted, the judgement shall stipulate that the whole of this period shall be deducted from the sentence. If a period in custody has been spent in complete isolation, a further deduction shall be made equivalent to one day for each 48-hour period commenced while the convicted person was subjected to complete isolation (cf. section 60 of the General Civil Penal Code).

61. Furthermore, the Government has been working on reducing the overall time spent on investigating and adjudicating criminal cases by means of new legislation, new routines, improving the qualifications of the staff, and developing and improving the relevant computer technology (more details are given under Article 14). These measures should have an impact on the time spent in pre-trial detention in general and solitary confinement in particular.

62. In order to reduce the time spent in police cells after arrest, the Norwegian Correctional Services have decided that prison accommodation shall be made available within 24 hours after a remand order is made, unless this is impossible for practical reasons. The enforcement of the rule and any violations shall be reported to the Norwegian Correctional Services each week.

63. Due to current problems regarding capacity in Norwegian prisons, several measures have been taken to increase capacity and ensure remand prisoners satisfactory conditions. Convicted prisoners are sometimes released a short time before they otherwise would have been in order to make prison cells available to other persons waiting to serve a sentence. The Correctional Services are seeking to increase the use of prisons with a lower security level and alternative ways of executing sentences outside prisons. Furthermore, Oslo Prison has now been renovated and all cells are in use. Bergen Prison has been extended, and 30 new cells for remand prisoners will be available from December 2004.

Coercive measures in prisons during execution of sentences

64. The Correctional Services may make use of security cells, restraining beds or other approved coercive measures in certain situations, e.g. to prevent a serious assault on or injury to a person. The use of such measures shall be reported to the regional prison authorities and/or the Norwegian Correctional Services.

65. The following figures indicate the use of coercive measures in Norway in recent years:

66. In the vast majority of cases, the use of security cells or restraining beds is limited to a period of less than 24 hours.

67. The Correctional Services may impose sanctions if prisoners breach the rules regarding peace, order and discipline or preconditions and conditions in or pursuant to the Execution of Sentences Act. However, solitary confinement has now been abolished as a sanction, mainly due to the detrimental effects this sanction may have on the person concerned.

Protection of the integrity of persons in psychiatric institutions

68. According to Act of 2 July 1999 No 62 relating to the Establishment and Implementation of Mental Care (the Mental Health Care Act, a translation of which is enclosed at Appendix 6), restrictions and coercive measures shall be limited to what is strictly necessary, and the patient’s view of such measures shall as far as possible be taken into account. Only measures that have such a favourable effect that it clearly outweighs the disadvantages of the measure may be used (section 4-2).

69. Patients under compulsory mental health care may, without their consent, be placed under such examination and treatment as is clearly in accordance with professionally recognised psychiatric methods and sound clinical practice. Unless the patient has consented, no examination or treatment entailing a serious intervention may be carried out. However, the patient may be treated with medicine without his or her consent. Such medication may only be carried out using medicines registered in Norway and in commonly used doses. Medication may only be carried out using medicines that have a favourable effect that clearly outweighs the disadvantages of any side effects (section 4-4).

Use of coercive measures towards mentally retarded persons

70. As mentioned in paragraph 91-93 of Norway's fourth periodic report, the Storting, by Act of 19 July 1996 No 60, added a chapter 6A to Act of 13 December 1991 No 81 relating to Social Services. The chapter contained provisions relating to the rights of and the restriction and control of the use of coercion and force towards certain categories of mentally retarded persons. In order to ensure that an evaluation of the new legislation would take place, the Storting decided that the Act should only be in effect for a three-year period, which was subsequently extended for an additional two years.

71. Evaluation of the legislation showed that it has led to better control of the use of coercive measures and a greater recognition of mentally retarded persons’ right to respect and self-determination. The use of coercive measures has been reduced in the five years the legislation has been in effect.

72. On the basis of the evaluation, the Storting by Act of 19 December 2003 No 134 added a permanent chapter 4A to Act of 13 December 1991 No 81 relating to Social Services,. According to chapter 4A, as was provided in the previous chapter 6A, coercive measures may only be applied when they are professionally and ethically justifiable. The interventions must go no further than is necessary for the purpose, and must be in proportion to the purpose to be achieved. Punishment or treatment that is degrading or detrimental to personal integrity is not permitted. The Act does not contain specific descriptions of the measures that may be used. It provides for a system of supervision. The provisions apply wherever health and/or social services are provided.

Sexual crimes

73. The chapter of the General Civil Penal Code on sexual offences was revised by Act of 11 August 2000 No 76. The Act introduced gross negligence as an alternative mens rea requirement in the provision criminalising rape. Furthermore, the actus reus of the provision was broadened to include the commission of a sexual act by means of all forms of threats or violence, and the commission of a sexual act with any person who is unconscious or incapable for any other reason of resisting. Moreover, the minimum penalty for committing a sexual act with a child who is under 14 years of age was increased from one to two years’ imprisonment. The commission of a sexual act with a person under than 18 years of age for payment was also criminalised.

Bullying and violence by fellow pupils at school

74. One of the most frequent concerns expressed by children is how to prevent bullying and violence at school. This is a concern that Norwegian educational authorities take very seriously. A number of national campaigns against bullying have been launched, and in 2002 the Storting adopted an amendment to the Education Act whereby children were given increased protection against bullying (section 9a-3). According to the amendment, parents or pupils may request measures relating to the psychosocial environment at school (for instance measures against degrading treatment like racism, bullying or violence), and the school has to make a formal decision in the matter within a reasonable period of time.

Violence in close relationships

75. In June 2004, the Government launched a plan of action on combating violence in close relationships (2004 -2006). The plan is a follow-up of the previous plan “Violence against Women”, which was launched in 1999. Both plans of action focus on women who are subjected to domestic violence. The action plan is a joint project between various ministries. The purpose of the project is to bring different professions together in a joint effort to help the victims of violence, the person perpetrating the violence and any children involved. Some measures are directed at disabled women. A survey will be conducted on the support offered by local authorities to disabled women who are subjected to violence. As from 2004, women’s shelters will be eligible to apply for loans from the Norwegian State Housing Bank to rebuild and improve the shelters in order to accommodate disabled women seeking support and refuge at such a shelter.

76. In 1995 the Storting passed a specific Act that prohibits female genital mutilation (Act of 15 December 1995 No 74 on the Prohibition of Genital Mutilation). An action plan to combat genital mutilation was put forward in 2000. A national project against genital mutilation started in 2001 and will continue until 2004.

77. The principles set out in the 1999 Patients’ Right Act, the Mental Health Care Act and the Health Personnel Act generally accord with the principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment.

Experimental treatment and clinical trials

78. According to the principles set out in Act of 2 July 1999 No 63 relating to patients’ rights, experimental treatment must be based on consent (chapter 4).

79. There is no general legislation governing medical and scientific experimentation (medical research) in Norway. The provisions relating to medical research are set out in a number of different acts and are partly unwritten. The regional ethical committees in Norway apply the principles of the Helsinki Declaration when examining clinical trials involving human beings.

80. Medical research involving the use of human biological material is covered by Act of 21 February 2003 No 12 relating to Bio-banks. According to this Act, the collection, storage and processing of human biological material for research purposes requires voluntary, express and informed consent by the donor, unless specific legal authority or another valid legal basis exists. Documentation of consent shall be available, and it shall be based on information concerning the purpose, methods, risks, discomfort, consequences and any other information of significance for the validity of the consent. The specific information required must be determined on the basis of an evaluation of risk factors, the sensitivity of the material, the vulnerability of the sample group, etc. A research bio-bank may only be established after a regional committee for medical research ethics has evaluated the matter.

81. For a research subject who is legally incompetent, physically or mentally incapable of giving consent or is a legally incompetent minor, informed consent must be obtained from the legally authorised representative in accordance with applicable legislation. When a subject considered legally incompetent, such as a minor, is able to give assent to decisions about participation in research, the researcher must obtain that assent in addition to the consent of the legally authorised representative.

82. Research on individuals from whom it is not possible to obtain consent, including proxy or advance consent, should be carried out only if the physical/mental condition that prevents the obtaining informed consent is a necessary characteristic of the research population and the research is necessary to promote the health of that population.

83. The Government has appointed a committee to look into the legislative aspects of medical research. The committee is to submit its report, containing proposed legislation relating to medical research, by 1 December 2005.