In April 2016, Anders Breivik, the Norwegian mass murderer, successfully challenged the conditions of his confinement on human rights grounds. In 2011 Breivik killed eight people with a car bomb in the centre of Oslo and then shot sixty nine political activists at a summer camp on the island of Utoya. He was sentenced to twenty one years imprisonment, although he could be detained longer on preventive grounds.
In a hearing of the Oslo District Court held inside Skien prison, he argued that being held in solitary confinement for twenty two to twenty three hours a day and denied any contact with other Prisoners, or with staff (other than through a glass barrier) constituted inhuman and degrading treatment prohibited by Article 3 of the European Convention. Being kept in solitary confinement, he said, was worse than the death penalty. Breivik’s lawyer argued the prolonged isolation was having a damaging effect on his client’s mental health although this was disputed by prison doctors. Breivik also complained of being woken up several times during the night, of female officers being present during searches of his person, and of being subject to excessive security when moving around the prison.
The District Court found that these deprivations did constitute inhuman and degrading treatment and ordered the state to pay his legal costs. The judge, Helen Sekulik, stressed that the right not to be subject to inhuman treatment was a fundamental value in democratic societies which applied to all, including terrorists (Anders Behring Breivik v Ministry of Justice, 20 April 2016).
The conditions in which he was being detained were excessive and were not applied to other prisoners convicted of very serious crimes. Breivik’s treatment had also been criticised by the Norwegian Prison Ombudsman who argued that he should be allowed to engage in more activities with prison officers. An Article 8 challenge relating to restrictions imposed on his contact with extremist political groups, including the Aryan Brotherhood, was rejected by the court.
The Government is appealing the Article 3 decision, arguing that his isolation is justified on security grounds, to prevent him influencing other prisoners and from harm from other inmates. The appeal would be heard in the Court of Appeal and could go then to the Supreme Court and ultimately the Strasbourg Court. Article 3 rights are non-derogable so the Court would need to consider whether the limits reach the threshold of inhuman treatment, although previous Strasbourg jurisprudence suggests the threshold is set quite high and in the case of Carlos the Jackal eight years of isolation did not reach that threshold and was ameliorated by the high number of visits (Ramirez Sanchez v France App. No. 59450/00, 4 July 2006). The view of the Strasbourg Court is that limited segregation is permitted but total isolation is not. The UN Rapporteur on Torture has argued that isolation should be used only in exceptional circumstances and for not more than fifteen days. Issues likely to be considered further in Breivik’s case would be the duration of isolation, its impact on his physical and mental health, and whether the long term effects of isolation can be ameliorated by giving him access to the same facilities as other high security prisoners – matters previously considered in the Ocalan case (Ocalan v Turkey App. No. 46221/99,12 May 2005), Ocalan v Turkey No.2 (App. Nos. 24069/03, 197/04, 6201/06 and 10464/07, 18 March 2014).
The conditions in which he was being detained were excessive and were not applied to other prisoners convicted of very serious crimes.
It is worth noting that public opinion in Norway is much less hostile to prisoners’ rights than in the UK despite the magnitude of the crime and some survivors of the Utoya massacre take pride in their country’s respect for human rights and humane prison conditions. However, others take the view that by robbing others of life, Breivik forfeits the entitlement to respect for his rights and Prof Kjetil Larsen of the Norwegian Institute of Human Rights believes the treatment of Breivik does not violate the Convention.
The Breivik case, therefore, highlights the importance – and perhaps the limits – of rights protection for the most shocking and least popular offenders convicted of heinous crimes. It also clearly presents a challenge to the Norwegian prison system, which normally houses prisoners serving much shorter sentences, and which has a reputation for the most humane conditions in Europe. Breivik has the use of three cells, for living, sleeping, and exercising. He can cook his own meals, and has access to a television, X-box, and an electric typewriter without internet access, and to books and other materials. He has begun a politics degree while in prison and, unlike UK-sentenced prisoners, is allowed to vote. These conditions reflect the Norwegian penal system’s commitment to the principle of normalisation that, as far as possible, conditions should be similar to those outside and that the deprivation of liberty is the key element of custodial punishment and further imposition of suffering is not acceptable. Of course there may be practical problems and safety issues in allowing more contact with other prisoners or staff, but this is a problem with which prison managers are familiar and so solutions should be possible. It raises, however, the question of adequate staffing, and economic issues often cut across policy aims.
The Breivik case raises a number of issues relevant to the UK. It highlights the problems of reconciling prisoners’ rights with rival claims and the problem of managing offenders serving long sentences. In particular it leads us to consider justifications for any differential treatment, notably isolation as a preventive measure, of those detained for terrorist offences who may radicalise other prisoners. It also illustrates the relevance – not always welcomed – of human rights to the administration of punishment and to all prisoners regardless of their offence or length of sentence. Consequently, rights can provide a restraint on overzealous states and oppressive prison regimes, can emphasise the common heritage of prisoners and ordinary citizens, and can be a means to raise prison standards.
Rights jurisprudence has also benefited the lives of young offenders. In the UK the case of R (on the application of the Howard League for Penal Reform) v Secretary of State for the Home Department (2002) established that the duties of the local authority to children in need or at risk of serious harm do not end at the door of a prison service establishment. However, progress in relation to the use of restraint techniques has shown the limits of rights. In R(C) and Secretary of State (2008) the court made it clear that the use of restraint on children for good order and discipline in Secure Training Centres (STCs) engages Article 3 of the European Convention. The scenarios put to the court by the private company running the STC were not accepted by the court as sufficient to justify the use of force. Since then, despite reviews, reports and a new manual on ‘safe’ methods of restraint, there is still evidence of mistreatment and excessive use of force and it has been reported that Medway STC, run by G4S, will be taken back into public control. The situation has led Kate Gooch to state, “The Government appears to have given only scant regard to the possibility that the use of pain compliance techniques is in breach of international human rights law”. Rights for prisoners – adults and children, petty criminals and terrorists – do not automatically lead to improvements.
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