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Just a couple of days ago Anders Behring Breivik – described by the Sun as both a ‘bloodbath beast’ and a ‘massacre monster’ after he killed 77 people and injured a further 300 in Norway in 2011 – won over Norwegian judges who declared that his right not to be treated inhumanely had been violated.
At first blush, the decision naturally evokes anger. Why should Breivik, the man who senselessly slaughtered so many people, be entitled to claim that his rights are now being infringed? Initial horror aside, however, I have come to the conclusion that the decision of the Norwegian judges was correct and in what follows I will attempt to explain why.
In terms of the law. Norway subscribed to the European Convention on Human Rights (ECHR) on 28 November 1950. Article 3 of the Convention protects our right not to be subjected to torture and inhumane or degrading treatment.
According to the United Nations Special Rapporteur on Torture, any regime which isolates a prisoner for at least 22 hours per day amounts to solitary confinement, which in turn may amount to inhumane treatment and a violation of human rights.
The European Court of Human Rights (ECtHR) have had a lot to say on this point. In Ramirez Sanchez v. France, an international terrorist was detained in solitary confinement but allowed access to newspapers, TV and permitted visits by his family and lawyers. As such, the Court was unable to find a violation. In a similar vain, the Court declared the 2013 case of Khider v. France inadmissible after a prisoner was kept in solitary confinement and strip-searched frequently by virtue of his own constant violent behaviour and attempts to escape the facility. However, in Öcalan v. Turkey (No. 2) the ECtHR decided that by keeping the founder of the Kurdistan Workers Party (PKK) in a room of only 13 square metres for almost 11 years, Turkey had violated Öcalan’s right to be free from inhumane treatment.
It seems, then, that where one has physical contact with other prisoners or visitors, access to the media and is segregated for good reason (e.g., persistent violence towards others), solitary confinement – even for a prolonged period – may be justified.
Anders Breivik was kept alone in a cell for 22-23 hours per day. His only contact was with guards through a thick pane of glass. He alleged that he was frequently strip-searched, often in the presence of female officers. There was also no evidence that he ever used violence toward prison guards or attempted to escape. As such, Judge Sekulic found that his treatment was so different from others in the facility as to be inhumane. Therefore, Breivik rightly won the legal battle.
While metaphorically Anders Breivik has been cast as a ‘bloodbath beast’ and a ‘massacre monster’, in reality he is still human. He is therefore protected under not only the European Convention, but also by customary international law. This is because the prohibition on torture is seen as so critical by the international community that no country has the right to deviate from it – even in times of war, hardship, or in the case of prisoners who have committed the most heinous crimes. The prohibition on torture is also embedded in Article 93 of the Norwegian Constitution. Article 98 adds that ‘[a]ll people are equal under the law’. It is for the same reason that Lady Justitia is often portrayed wearing a blindfold: her justice is objective and distributed without fear or favour. This means that, Anders Breivik or not, Norway is bound by its own constitution alongside international law not to treat any person inhumanely.
To those readers unconvinced by the above, I would pose a simple question: where would you draw the line?
Let me elaborate. There is no such thing as a perfect verdict. Anders Breivik confessed to the commission of his crimes and it is fairly clear that he is the culprit. However, Frank Sterling also confessed to a crime back in 1988. He spent 18 years in prison for allegedly killing an elderly lady in New York. He was eventually exonerated on the basis of DNA evidence.
A little closer to home, the Birmingham Six and the Guilford Four were both alleged members of the Irish Republican Army who had committed atrocities during ‘the troubles’ in Northern Ireland. The former group spent 17 years behind bars. In relation to the latter, Lord Alfred Denning, ‘the people’s judge’ and a law student favourite, once said in an interview that they should have been subjected to the death penalty:
‘They’d probably have hanged the right men. Just not proved against them, that’s all’.
After huge media campaigns, protests, books, articles and legal battles (highlighting the positive impact of mass-media on criminal justice; see Charles McKeon’s post on the possible negative impact of the media on the right to a fair hearing here) all of their convictions were quashed. They were innocent.
The reason I draw these cases to the reader’s attention is to illustrate the fallibility of man-made justice. Once we decide that it’s ok to treat Anders Breivik inhumanely, what’s to stop us from doing the same to other prisoners whom we are fairly certain committed nasty crimes? Others who perhaps confessed under duress, or who were victims of shoddy DNA evidence at trial.
Bjørn Ihler, a survivor of the Breivik atrocity, hit the nail on the head when he Tweeted in the aftermath of the decision that:
‘Our best weapon in fighting extremism is humanity. The ruling in the #Breivik case shows that we acknowledge the humanity of extremists too.’
To deny Anders Behring Breivik his rights would be a slippery slope toward injustice. Norway should be proud of its constitution, proud of its judges and proud to brandish the torch of humanity even in the face of unspeakable horror.