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Norway: District Court Hears Breivik Accusation of Violations of Human Rights

(Mar. 18, 2016) On March 15, 2016, the Oslo District Court convened to hear a suit lodged by Anders Behring Breivik alleging that his treatment in prison is a violation of his human rights. (Press Release, Oslo Tingrett [Oslo District Court], Lawsuit Regarding Prison Regime and Claimed Violation of Human Rights (ECHR) (Mar. 14, 2016), DOMSTOL.NO.)

Breivik is currently serving a 21-year sentence in preventive detention for murdering 77 people in Norway on July 22, 2011. He can be released at the earliest after ten years, but the sentence can also be extended by five-year increments if he continues to be considered a threat to society. (Oslo Tingrett, Dom, 22 juli-saken, Case Nr: TOSLO–2011–188627–24 (11–188627MED–OTIR/05) (Aug. 29, 2012), DOMSTOL.NO; §§ 40 & 43 Straffeloven [Criminal Code], LOV No. 2005-05-20-28, LOVDATA.) It is the harshest sentence a person can receive in Norway.  (Id.; see also Wendy Zeldin, Norway: Norwegian Criminal Law and the July 22, 2011, Massacre, Law Library of Congress website (Aug. 2011).)

Breivik’s Allegations

Breivik is suing the Norwegian Justice Department for being held in isolation and for receiving restrictions on his communications, allegedly making it impossible for him to maintain relationships. He claims that this treatment violates his rights as afforded by the European Convention on Human Rights, specifically articles 3 (on “inhuman or demeaning treatment”) and 8 (on the right to family life, including the “right to privacy […] and correspondence”). (Advokaetfirmaet Storrvik [Storrvik Law Firm], Sluttinnlegg til Oslo tingrett [Closing Pleadings Before the Oslo District Court], Case Nr. 15-107496TVI-OTIR/02 (Storrvik Closing Pleadings) (Mar. 1, 2016), DOMSTOL.NO; European Convention on Human Rights (Nov. 4, 1950, as amended by Protocols Nos. 11 & 14 and supplemented by Protocols Nos. 1, 4, 6, 7, 12 & 13), EUROPA.)

Breivik’s primary complaint is based on his having been kept in isolation for five years without meeting any fellow prisoners. Moreover, he claims that he is allowed no visits from non-professionals; he only receives persons who have a professional reason for meeting him, i.e., priests, lawyers, and health providers). All visits, including meetings with his lawyers, are conducted behind glass walls. (Storrvik Closing Pleadings, supra.)

Breivik also complains of little opportunity to communicate with the outside world because all of his correspondence is monitored and, when the authorities feel necessary, censured, and because the persons he wishes to speak to over the telephone are not allowed to speak to him. (Id.)

Parliamentary Ombudsman – National Preventive Mechanism Against Torture and Ill-Treatment Division)

The Parliamentary Ombudsman has previously visited Breivik in prison and in 2015 issued a report in which he recommended that prisoners, including Breivik, receive more time outside their cells and more opportunities to engage in social activities. The Parliamentary Ombudsman further recommended that isolated inmates should be provided scheduled opportunities for socialization with staff in lieu of socialization with other inmates. (S’OM: forebyggingsenhet mot tortur og umenneskelig behandlingved frihetsberøvelse, Besøksrapport: Telemark fengsel, Skien avdeling [Visitors Report: Telemark Prison, Skien Ward (June 2-4 2015), Sivilombudsmannen website.)

State Response

The Norwegian state has responded by explaining that it is committed to meeting its human rights obligations while giving appropriate consideration to “the security of [Breivik] himself, prisoner staff and the [Norwegian] society at large.” (Regjeringsadvokaten [Attorney General], Sluttinnlegg til Oslo tingrett, Sak nr [Case Nr] 15-107496TVI-OTIR/02 (Government Closing Pleadings), DOMSTOL.NO (Mar. 1, 2016).)

In its response, the state quotes European Court of Human Rights (EHCR) case law that specifies that to qualify as a violation of rights “the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.” (Id.)  The state pointed out that Breivik has access to three rooms: a bedroom, a study area, and a training facility. He is also allowed outside daily, has recently started training to cook his own food and wash his own clothes, and is enrolled in university studies. (Id.) The state emphasized its efforts to provide Breivik with sources of entertainment during his incarceration by providing him with a computer (without Internet access), a play-station, and a television. He also regularly receives visits from a visitor service and a priest. (Id.)

For treatment of a prisoner to be considered in violation of the European Convention on Human Rights, the inhuman and degrading treatment must manifest itself, either physical or psychologically. The state in its response specifically stresses that Breivik has not suffered any physical or psychological medical injury from the alleged isolation. (Id.) Breivik’s legal representative objected to this statement during the court hearings held on March 15, 2016. (Andreas Bakke Foss & Andreas Slettholm, Emberland: Breivik er kort og godt en svært farlig mann, AFTENPOSTEN (Mar. 15, 2016).)

The state further explained that the control of Breivik’s correspondence is a direct response to the danger that he poses to society and is required of all inmates who are in high risk prisons in Norway. (Government Closing Pleadings, supra; § 30 Straffegjennomføringsloven [Act on Execution of Sentences], LOV No. 2001-05-18-21, LOVDATA.) The restrictions should also be seen, the state argued, in the light of the manifesto Breivik published in connection with his terrorist acts in July of 2011. In sum, the Norwegian state found that the measures imposed on Breivik are “necessary in a democratic society.” (Government Closing Pleadings, supra.)

Commentators

Norwegian commentators agree that the restrictions imposed on Breivik do not go beyond what is legal or necessary and consider Breivik’s pending case without merit, but predict that Breivik will continue to pursue similar cases. While permissible now, commentators find it unlikely that Breivik can be kept in a similar form of isolation for the rest of his life. Breivik is expected to ask for release in 2021, which is the earliest possible release date. Legal commentators predict that any such request would be denied. (Inge Hanssen, Mange vil nok mene at Anders Behring Breivik bare kan råtne i fengsel. Så enkelt er det ikke, AFTENPOSTEN (Mar. 15, 2016); Kjetil Mujezinović Larsen, Kronikk: Blir Anders Behring Breivik umenneskelig behandlet?, AFTENPOSTEN (Feb. 13, 2016).)

Court Hearings Schedule

Court hearings will be held between March 15, 2016, and March 18, 2016, at the prison where Breivik is currently housed. (Lawsuit Regarding Prison Regime and Claimed Violation of Human Rights (ECHR), supra.) The hearings will be held in part behind closed doors. (Oslo Tingrett, Kjennelse, Case Nr. 15-107496TVI-OTIR/02 (Mar. 2, 2016), DOMSTOL.NO.)