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Norway: District Court Says State Violated Breivik’s Rights

(Apr. 26, 2016) On April 20, 2016, the District Court of Oslo announced its verdict in the human rights case brought by Anders Behring Breivik, who had been convicted in 2012 of the murders of over 70 people. (Press Release, Oslo District Court, Verdict: Lawsuit Regarding Prison Regime and Claimed Violation of Human Rights (ECHR) (Apr. 20, 2016), Judiciary of Norway website.) Breivik had brought a case against the Norwegian state alleging human rights violations based on Norway’s obligations under the European Convention on Human Rights (ECHR), asserting that his treatment in prison violated articles 3 (inhumane and degrading treatment) and article 8 (right to family life, which includes protection of one’s personal communications).

Breivik claimed as human rights violations that he underwent non-proportional routine strip-searches, that he was kept in total isolation from other inmates, that he received no visitors, and that all of his mail was screened and/or censured by the state. (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; Elin Hofverberg, Norway: District Court Hears Breivik Accusation of Violations of Human Rights, GLOBAL LEGAL MONITOR (Mar. 18, 2016);  ECHR (Nov. 4, 1950, as amended through June 10, 2010), Council of Europe website.)

The district court found that there was no violation of article 8 of the ECHR, but that there was a violation of article 3. (Oslo tingrett [District Court of Oslo] Apr. 20, 2016, Case No. 15-107496TVt-OTtR/02, at 37, DOMSTOL.NO (in Norwegian).) In its reasoning, the court especially pointed out that “ [t]he prohibition against inhumane and degrading treatment represents a fundamental value in a democratic society.  It applies regardless – also to terrorists and murderers.” (Id. at 13.)

Article 3 Violations 

The article 3 violations resulted from the totality of circumstances surrounding Breivik’s imprisonment.  The district court noted “the prolonged isolation [four years and nine months], the lack of grounds for determining whether the isolation is absolutely necessary, and the limited administrative opportunities for [Breivik to] appeal.” (Id. at 28.) The court went on to say that the state has not taken “sufficient compensatory measures” to prevent the disruptive effects of prolonged isolation nor “sufficiently considered his psychological health.” (Id.)

Specifically, the violations consisted of routine strip-searches before and after Breivik exited his cell to go to the outdoor area, his complete isolation from other inmates, and limited visitation opportunities that only occurred behind a glass window. (Id. at 24, 27, & 28.)

Isolation

The district court looked in particular at a psychologist’s continuing assessment of Breivik, who recommended that Breivik should be allowed to receive visitors without the separation of a glass wall. The court found that because Breivik is under stringent isolation and does not socialize with any other inmates, he should be given the opportunity to meet with his attorney in a more normal way. (Id. at 24.)

The district court chose to disregard state evidence that Breivik still presents a danger; that evidence consisted of the fact that Breivik had previously written to a local police station describing ways in which he could create weapons out of the items in his possession. Instead the court held that the deciding factor in determining the required security measures should be his actual behavior during his imprisonment, which, according to the court, has been “good.” (Id. at 25.)

Strip-Searches

In its decision, the district court questioned whether Breivik must be strip-searched following every visit to the prison courtyard, noting that doing so defies the purpose of the activity, which is designed to compensate for isolation. The court especially noted that Breivik has stated that he had several times “decided against visiting the courtyard so to avoid having to perform the strip-searches.” The court found that because of the otherwise very stringent security measures applied to Breivik, the additional strip-searches could not have been necessary. (Id. at 29.)

The court compared the treatment of Breivik to that of the inmate in the European Court of Human Rights case Van der Ven v. the Netherlands (Application No. 50901/99 (Feb. 4, 2003), HUDOC database, European Court of Human Rights website). The district court made no distinction between Breivik’s treatment and that of Van der Ven, although in the latter case the strip searches also included rectal searches. Instead the Court found that the positioning of Breivik (including the circumstance that he was forced to bend his knees) was by its very nature embarrassing to Breivik. Moreover, the presence of female staff was specifically mentioned as an aggravating circumstance, adding to Breivik’s humiliation. Coupled with the numerous other interventions against him, the routine strip-searches could not be considered proportional or necessary. (Oslo tingrett, supra, at 29.)

The district court did not take into consideration the fact that the number of strip-searches of Breivik had been considerably reduced following his move to Telemark prison. (Id. at 5.)

Article 8 Issues

Article 8 of the ECHR states that persons have a right to family life and protection of their personal communications. Limits can only be placed on these rights if they are necessary in a democratic society.  Breivik had complained that his communications were censured, specifically that his letters were read and censured or discarded, and that he did not receive visitors other than his lawyer and health professionals.  (Storrvik Closing Pleadings, supra.) The District Court noted that Breivik was sentenced for a politically motivated terror crime and that it is against this background that an examination of the legality of the censorship of his correspondence must be viewed.  (Oslo tingrett, supra, at 32.) Because the security measures surrounding his communications are needed in a democratic society, the Court found that censuring Breivik’s correspondence does not violate his article 8 rights. (Id. at 34.)

By the same logic, the District Court found that the fact that the Norwegian state wished to prevent Breivik from receiving visits or phone calls from right wing extremists was also not a violation of his article 8 rights. Moreover, the Court went on to say that the limits on visitors were at least in part caused by Breivik himself, noting that he did not want to see his father and that no one else wanted to see him. (Id.) The District Court concluded that “neither separately nor in totality, do the measures constitute a violation of article 8 of the ECHR.” (Id. at 35.)

Effects of the Decision

The most important measure in the changed treatment of Breivik, according to the District Court, is that the state should perform an evaluation as to whether or not Breivik could meet with his lawyer without being separated by a glass window. Moreover, the state will have to further analyze which restrictions are necessary, ensuring that they are sufficiently considered, particularly in the light of Breivik’s health. (Id. at 23 & 28.) Breivik will not receive any compensation as a result of the violations of his human rights, but the state is responsible for paying for Breivik’s attorney fees. (Id. 35.)

Reactions to the Outcome of the Case 

The verdict was met with surprise by Norwegian legal commentators, who had expected the state to win but praised the judge for showing courage by producing a verdict that was clearly at odds with public opinion. (Andreas Bakke Foss, Andreas Slettholm, & Håkon Letvik, Eksperter om Breivik-dommen: – Dette er veldig overraskende [Experts on Breivik Verdict: This Is Very Surprising], AFTENPOSTEN (Apr. 20, 2016).)

Breivik’s attorneys have decided, according to news reports, that they will not appeal the article 8 part of the verdict as they were happy with the article 3 determination, stating that the verdict should be interpreted as an order to end the isolation of Breivik, and specifically enable him to spend time with other inmates. (Breivik må få kontakt med andre innsatte [Breivik Must Have Contact with Other Inmates], NRK (Apr. 20, 2016).)

At the advice of the Attorney General of Norway, the Norwegian state has decided to appeal the verdict. (Press Release, Ministry of Justice and Public Security, Staten anker tingrettens dom i Breivik-saken [State to Appeal District Court Verdict in Breivik Case] (Apr. 26, 2016).)