Breivik’s rights case explained

A human rights appeal involving Norwegian mass shooter Anders Behring Breivik faces the European Court of Human Rights

William Henderson
The Local

Breivik, who killed 77 people in attacks in Oslo and Utøya in July 2011, is serving his sentence in Telemark prison at Skien. Just as his conviction and sentencing gained much international attention, so did the judgment of Oslo District Court in April 2016 that Breivik’s human rights had been violated.

Soon after the Oslo judgment was delivered, an appeal was launched by the Norwegian Ministry of Justice and Public Security.

The Oslo judgment dealt with arguments based mainly on two sections of the European Convention on Human Rights: Article 3 (prohibition of ill-treatment) and Article 8 (right to respect for private and family life). In spite of what was widely reported at the time, the real issues in the case were related to his solitary confinement and strip searching.

In its appeal, the Norwegian Ministry of Justice and Public Security will use ECHR cases to try to persuade the appeal court that Breivik’s rights have not been violated.

Solitary confinement
One of these cases is that of Ahmad and Others v United Kingdom (2012), which involves applicants who were facing terrorism charges in the U.S. and raised concerns about the conditions they would face if extradited. The ECHR ruled that isolation in prison would not immediately constitute inhuman treatment. It said: “The particular conditions, the stringency of the measure, its duration, the objective pursued, and its effect on the person concerned had to be taken into account.”

One of the arguments put forward related to the specific conditions in the “super-max” U.S. federal facility at ADX Florence. The ECHR noted that “although inmates are confined to their cells for the vast majority of the time, a great deal of in-cell stimulation is provided.” The ruling allowed the extraditions.

The case of Ramirez Sanchez v France (2006) was also decided by the ECHR. Sanchez endured isolation for eight years—notably longer than that experienced by Breivik. Sanchez had no contact with other prisoners but was allowed visits from family and lawyers. The ECHR ruled that this meant his being held in isolation did not violate Article 3.

Repeat strip searching
Breivik was strip-searched after visits to an exercise yard and when transferred between prison and police custody. On some occasions female prison staff were present.

The ruling that Breivik’s rights had been violated mainly cited the case of Van der Ven v Netherlands (2003) on this point. This case involved weekly strip searches, which were found to violate Article 3—however they involved intrusive internal inspection.

One case not mentioned in the Oslo District Court judgment was that of S.J. (no.2) v Luxembourg (2013), which involved the strip search of a prisoner where third parties could see him. In this case, the ECHR emphasized the absence of any intention to humiliate or debase the prisoner and found no violation.

William Henderson is a Lecturer in Law at Glasgow Caledonian University. This article was originally published on The Conversation:

This article was originally published on The Local.

It also appeared in the Jan. 27, 2017, issue of The Norwegian American. To subscribe, visit SUBSCRIBE or call us at (206) 784-4617.

Norwegian American Logo

The Norwegian American

The Norwegian American is North America's oldest and only Norwegian newspaper, published since May 17, 1889.