Anders Breivik suffered from inhuman and degrading treatments while in prison. The Oslo District Court sentences Norway to financial compensation for violating art. 3 ECHR.

Oslo District Court, 20 April 2016, judgment no. 15-107496TVt-OTtR/02

Anders Behring Breivik is a Norwegian national, best-known for committing two terrorist attacks in July 2011 in Oslo and Utoya, where he murdered 77 people and wounded over 300.

Acting as a lone wolf, he first placed and detonated a car bomb in the government district of Oslo, next to the cabinet of the Prime Minister, by so killing 8 people and injuring more than 200. Few hours later, dressed in a homemade police uniform and carrying arms and ammunitions, Mr Breivik reached the youth camp of the Norwegian Labour Party on Utoya island and shot down 69 young activists.

Upon arrest by the counter-terrorism police, Mr Breivik surrendered without resistance, stating that his purpose was to protect Norway and western Europe from a Muslim takeover, and claimed the Labour Party’s responsibility for letting down Norway and its citizens.

Before trial he undertook two psychiatric examinations. The first one diagnosed him with schizophrenia and concluded he was mentally insane, which consequently would exclude any criminal liability. The second one, however, excluded his insanity, declaring he was only affected by antisocial and narcissistic personality disorders.

Finally, the Oslo District Court upheld the second evaluation, ruled Mr Breivik was criminal responsible for the attacks, and convicted him to 21 years detention, the maximum penalty under the Norwegian criminal code. The defendant decided not to appeal the decision.

As of his arrest on 22 July 2011, in consideration of his highly dangerous profile, Mr Breivik has always been detained in solitary confinement with no contact with other inmates.

Subsequently, Mr Breivik raised a civil lawsuit against the Norwegian Ministry of Justice, arguing the detention conditions he was imposed were inhuman and degrading, as well as in violation of his privacy. He thus claimed the breach of articles 3 and 8 of the European Convention on Human Rights (“ECHR”).

Following the civil trial, on 20 April 2016 the Oslo District Court held Breivik received an inhuman and degrading treatment, and therefore ruled there has been a violation of article 3 ECHR, while rejected the argument on article 8. By so appraising, the Court further sentenced the Norwegian Ministry of Justice to NOK 330,937.50 compensation in favour of the plaintiff.

1. Custodial conditions

The mentioned decision was based on a detailed analysis of Mr Breivik’s detention conditions.

After spending few days in police custody, the detainee was placed in remand and spent his time during and after trial in two correctional institutes, under a special confinement regime, by which he was not allowed to make any contact with other prisoners.

More specifically, Mr Breivik’s conditions were as hereby described.

Both institutes provided him a complex of three separate cells, each one around 8 square meters large, open to daylight and equipped with toilet and sink. In the nocturne cell, he was given a bed, desk with a chair, cork board, TV with DVD player. The work cell was equipped with desk and chair, stressless recliner, cork board, bookcase, television, Playstation 1 and 2, and access to the computer. Finally in the training cell, he could make free use of a treadmill, exercise mat and machines, and a spinning bicycle. Upon moving from one cell to another, he was handcuffed and examined by three officers with the use of a metal detector.

He was allowed to make personal contacts in the following ways.

First, he could speak in person with medical experts, lawyers and the priest, whom he would meet through a glass wall in a chat room as large as 10 square meters. Moreover, he had daily conversations with the institute manager, as well as the rest of the prison staff. Private external visits were also allowed, although Mr Breivik only got few visits from his mother.

As further means of communication, Mr Breivik had the right to make phone calls 20 minutes a week, even though his telephone was constantly tapped.

Finally, Mr Breivik was allowed to communicate by mail. His correspondence was subject to control by the prison staff, who read the letters and decided on the forwarding.

On a privacy standpoint, he was always monitored by cameras in all rooms except from the nocturne cell, where he was granted discretion. During all transfers in and out of prison he was handcuffed and underwent nude checks at the presence of three officers.

2. Grounds of application

Mr. Breivik based his lawsuit on the violation of articles 3 and 8 ECHR.

In particular, he claimed his conditions amounted to an “inhuman treatment” as provided by art. 3, in light of the extensive solitary confinement he was imposed in the whole course of detention. As a matter of facts, he was not allowed to make any personal contact with other fellow inmates, to the extent that he would spend around 22-23 hours a day alone in the cells. Such situation eventually resulted in a completely closed and isolated environment, with very little human contact.

As to article 8, Mr Breivik argued the control over the correspondence, the phone calls and the visits deprived him from establishing personal relationships, and were disproportionate as well as not “necessary in a democratic society” as prescribed by the ECHR.

3. The reasoning of the Court on Art. 3 ECHR

The Court of Oslo very thoroughly analysed the alleged violation of article 3.

First, the judges quoted extensive case law of the European Court of Human Rights (“ECtHR”). In fact, according to the Strasbourg Court, imprisonment does not per se constitute an inhuman treatment, unless the manner and method of the execution of the measure subject the person to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (Van Der Ven v. The Netherlands). In other words, a threshold of severity must be set on a case to case basis, considering the sex, age and health conditions of the individual, in order to discriminate between regular and inhuman detention (Sanchez v. France).

The Court further noted that solitary confinement is a key factor in the assessment of the violation of article 3. More precisely, the ECtHR often based the evaluation on a number of factors, namely the material conditions of detention (space, ventilation, light, facilities), the amount of time the detainee spends in isolation, the government purpose for isolation, the arrangement of compensatory measures, the social and physical effects of confinement (Enea v. Italy, Mironovas and others v. Lithuania).

Most importantly, however, solitary confinement must only be ordered for a limited period and when strictly necessary (Onoufriou v. Cyprus, Sanchez v. France). In other words, isolation is legitimate when direct contact with external people concretely raises the risk of escape, or that the detainee aid or abet criminal activity outside prison.

When applying the above principles to the present case, the Court of Oslo found that Breivik’s confinement was not strictly necessary. As a matter of facts, he performed the attacks without the assistance of other people, nor did he have a structured criminal association behind him. Moreover, although he had a number of supporters outside prison, none of them was considered to have adequate resources to carry out action of similar scope. In short, the Court noted Mr Breivik’s contact with other inmates would not be concretely dangerous.

In addition, the frequent use of handcuffs, the imposition of a glass wall for personal communications, as well as the limitation on the number of visitors, were considered to be very poor compensatory measures for confinement.

Finally, the Court analysed the effects of isolation on Breivik. According to testimonies, one could witness changes in his behaviour: he showed cognitive disorders, as he often could not remember the date and time, or the persons he had a conversation with. Further, he reported prolonged headaches, dizziness and felt pressure on the head. He also slept poorly and had difficulty in concentrating.

All these elements, together with the clear mental vulnerability of the subject, led the Court consider that isolation exceeded the severity threshold for detention. In conclusion, Breivik’s confinement was not necessary, was excessively prolonged, was not counterbalanced with adequate compensatory measures, and had negative effects on the person.

As a last argument, the Court focused on the nude checks. The judges found this measure also was not strictly necessary and poorly effective to ensure safety, since the actual chances Mr Breivik could carry objects from the outside were regarded as unlikely. Moreover, noted the judges, the ECtHR considered naked examinations to be degrading, when applied in addition to further stringent measures (Van Der Ven v. The Netherlands). Taking all these elements into consideration, the Court concluded that nude checks amounted to an inhuman treatment pursuant to article 3 ECHR.

4. The Court’s view on Art. 8 ECHR

Mr Breivik further argued the constant control over his personal, written and telephone communications violated his privacy and was not proportionate to the need for safety. In other words, such measures were not “necessary in a democratic society” as required by art. 8 §2 ECHR.

As anticipated, the Oslo Court did not find the violation of article 8 ECHR.

In fact, the judges noted that these measures on the one hand were in accordance with the national laws, and on the other were carried out to pursue the legitimate aim of preventing incitement by Mr Breivik for right-wing radical actions.

In other words, Breivik’s interest in establishing external contacts had to yield to the state’s interest in maintaining public order. Hence, the Court estimated the requirements set forth in article 8 were all complied with, and consequently found no violation of the Convention.

4. Conclusions and ruling

Considering all the above arguments, the Oslo District Court estimated the Norwegian Ministry of Justice infringed article 3 ECHR, by providing Mr Breivik an inhuman treatment in the course of his detention. Solitary confinement was in fact excessively prolonged, poorly justified and had negative effects over the subject.

Conversely, the Court did not find any violation of the detainee’s privacy. In fact, controls on his external contacts had a precise legal basis on national laws, and were deemed to be actually necessary to prevent the spread of right-wing radicalism and to keep the public order.

By so ruling, the Court sentenced the Norwegian State to NOK 330,937.50 (equal to around EUR 35,000) compensation in favour of Mr Breivik.

• Download the Decision (Norwegian)

How to quote the article in a bibliogrphy:
L. Roccatagliata, Anders Breivik suffered from inhuman and degrading treatments while in prison. The Oslo District Court sentences Norway to financial compensation for violating art. 3 ECHR, in Giurisprudenza Penale Web, 2016, 4