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Ilya Ivanov

Geneva Academy of International Humanitarian Law and Human Rights, RIAC expert

The public indignation after the recent Norwegian court decision which decided that Andreas Breivik, killer of 77 people (many of whom were children), suffered from inhuman or degrading treatment in his solitary yet comfortable prison cell, is understandable. A terrorist and children murderer, confined in ‘the world’s most humane prison’ and still asking for better conditions, for many seemed to be simply ridiculing the Norwegian justice system. This is, however, not the case.

Despite the principle of equality before the law being well-established [1], sometimes it can still be challenging to realise that equal protection of the law covers not only the ‘innocent,’ but criminals as well. The International Covenant on Civil and Political Rights, Art. 10 deals specifically with the issue of dignity of persons deprived of their liberty, under any circumstances – and the prohibition of torture, inhuman, cruel or degrading treatment, well-founded in both treaty [2] and customary law, is absolute, covers everyone without exception, and whatever the reasons for such treatment [3].

The public indignation after the recent Norwegian court decision which decided that Andreas Breivik, killer of 77 people (many of whom were children), suffered from inhuman or degrading treatment in his solitary yet comfortable prison cell, is understandable. A terrorist and children murderer, confined in ‘the world’s most humane prison’ and still asking for better conditions, for many seemed to be simply ridiculing the Norwegian justice system.

This is, however, not the case.

While most of Breivik’s claims were dismissed (such as violation the right to private and family life [4]), the court focused on the prohibition of inhuman or degrading treatment not in connection to the softness of his bed or lack of a new PlayStation, but to the fact that he is kept in almost solitary confinement with very limited human interaction. Breivik’s conditions are still rather far from what you would see in The Shawshank Redemption, but according to experts, prolonged solitary confinement per se can seriously impact mental health, which might eventually constitute inhuman or degrading treatment. And according to the legal equality principle, as well as the absolute prohibition of such treatment, the latter covers every human being, including criminals, murderers, and terrorists.

Instead of criticising the Norwegian court for ‘softness,’ it might be more appropriate to praise it for adherence to the rule of law in such a controversial case. The court did not pardon his crimes, but despite all the atrocities he has committed Breivik is still a human being deserving humane treatment, which includes simple human interaction. There is no exception to ECHR, Art. 3 [5]; if prolonged solitary confinement is considered to be inhuman or degrading, it would still be so even in a sea view penthouse – as physical comfort is not directly related to mental issues resulting from imposed solitude.

While the Norwegian case might be an extreme one, it shows that Norway protects human rights of everyone in its jurisdiction, including those deprived of their liberty. Unfortunately, many countries – including the US, Russia, Japan, and many others – cannot show the same results. Maybe it is time for others to understand that some legal provisions are absolute and there is even no ‘fine line’ in the degree of inhuman treatment, large-scale or miniscule, – it is simply a human rights violation.

1. See, among many others, Universal Declaration of Human Rights, Art. 7.

2. ICCPR, Art. 7; European Convention of Human Rights (ECHR), Art. 3.

3. Such as the ‘enhanced interrogation techniques’ practiced by the CIA for a ‘benevolent’ aim of fighting terrorism: in the end, the Senate report classified it as a torture. For more, see: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, US Senate Select Committee on Intelligence, 3 December 2014.

URL: https://www.amnestyusa.org/pdfs/sscistudy1.pdf

4. The reasoning behind it can be that under ECHR, Art. 8.2 there is a possibility to interfere with private and family life – and the court might have adjudicated that this interference was established by law, ‘necessary in a democratic society’ and proportional. The case files, if/when made public, could explain more of the court’s reasoning.

5. Unlike ECHR, Art. 8.2 – right to private and family life.

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