SUPREME COURT OF NORWAY On 08 June 2017, the Appeals Selection Committee of the Supreme Court, comprising Justices Matningsdal, Indreberg and Bårdsen in HR-2017-1127-U, (sak nr. 2017/778), civil case, appeal against judgment: Anders Behring Breivik (Advocate Øystein Storrvik) v. State of Norway, represented by the Ministry of Justice and Public Security (Attorney General, represented by Attorney General Fredrik Sejersted) delivered the following ORDER: (1) Anders Behring Breivik is currently serving a sentence of preventive detention pursuant to Section 39 c, no. 1, of the Penal Code of 1902, handed down by Oslo District Court on 24 August 2012. A time frame of 21 years was imposed, with a minimum duration of 10 years. The judgment concerns acts of terrorism, committed on 22 July 2011, carried out by means of a car bomb at Regjeringskvartalet, the executive government quarter in Oslo city centre, and an attack using semi-automatic weapons against participants at a political youth camp at Utøya in the Municipality of Hole. In total, Breivik killed 77 people and wounded 42. Many survivors and next of kin suffered major psychological trauma. The material damage was considerable. His motive was to avenge national socialists of the past and start a “fascist, ethno-nationalist revolution in Europe”. Breivik refers to himself as, inter alia, “a party secretary of the Nordic State” and a “spokesperson for Norwegian national socialists, fascists and other ethno-nationalists”. He considers himself to be “Norway’s only political prisoner”. (2) Breivik filed legal action against the State of Norway, claiming that the conditions of his confinement had been, and still were, in violation of the prohibition of inhuman or degrading treatment, as established by Article 3 of the European Convention on Human Rights (ECHR), as well as of his right, pursuant to Article 8, to private life and correspondence. In Oslo District Court’s judgment of 20 April 2016, the State of Norway was found to have violated Article 3, but not Article 8. The State of Norway appealed this judgment to Borgarting Court of Appeal, which, in its judgment of 01 March 2017, found in favour of the State of Norway on all accounts. - 2 - (3) Breivik appealed the court of appeal’s judgment to the Supreme Court. The appeal is lodged on grounds of the court of appeal’s assessment of evidence and application of the law. (4) Leave to appeal to the Supreme Court must be granted by the Appeals Selection Committee of the Supreme Court, cf. Section 30-4, Subsection 1, of the Dispute Act. Such leave is only granted when the appeal concerns “issues whose significance extends beyond the scope of the current case, or when other compelling reasons indicate that the case should be reviewed by the Supreme Court”. (5) As concerns the appeal against the assessment of evidence, the Appeals Selection Committee of the Supreme Court notes: (6) The evidence presented in district court and in the court of appeal was extensive, including inspections on site. The appeal to the Supreme Court has not substantiated any claims of significant new evidence, nor any changes or developments that may affect the court’s assessment. Upon assessing the appeal, the Appeals Selection Committee finds that, in the interest of clarification of the case, there is no need for the Supreme Court to review the evidence again; such review by the Supreme Court would, in any case, be based on the presentation of secondary evidence. Furthermore, no other compelling reasons exist to serve as grounds on which to grant leave to appeal against the assessment of evidence to the Supreme Court. Leave is therefore refused for this part of the appeal, cf. Section 40-4, Subsection 1, of the Dispute Act. This includes the claim that Breivik has a mental vulnerability. The Appeals Selection Committee refers to the court of appeal’s judgment (page 53), which concludes that Breivik has no such vulnerability. (7) As concerns the appeal against the court of appeal’s application of the law in connection with Breivik’s claim that the conditions of his confinement are in violation of Article 3 of the ECHR, the Appeals Selection Committee of the Supreme Court notes: (8) In his appeal to the Supreme Court, Breivik claims that the court of appeal misconstrued and misapplied Article 3 of the ECHR in concluding that the conditions of his confinement do not constitute inhuman or degrading treatment. In particular, he emphasizes the stress of continuous solitary confinement, in light of the stringent security measures otherwise imposed. (9) Article 3 of the ECHR establishes: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” (10) Article 3 of the ECHR, and its international law implications, has the force of Norwegian law, cf. Sections 2 and 3 of the Human Rights Act of 1999. The same prohibition is established by Article 93, second paragraph, of the Constitution, which stipulates that no one shall be subjected to “torture or other inhuman or degrading treatment or punishment”. The provisions “inhuman or degrading treatment” are central to this case. (11) Article 3 expresses fundamental principles in any democratic society and respect for human dignity, both part of the essence of the ECHR as a whole, cf. the Grand Chamber judgment of 28 September 2015 in Bouyid v. Belgium, paragraphs 81 and 90, and the Grand Chamber judgment of 15 December 2016 in Khlaifia and others v. Italy, paragraph 158. This provision prohibits—in absolute terms—torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s previous or current behaviour, cf., inter alia, the judgment of 14 October 2010 in A.B. v. Russia, paragraph 99. This also applies - 3 - under extraordinary conditions, including in connection with acts of terrorism, cf. the Grand Chamber judgment of 08 July 2004 in Ilaşcu and others v. Moldova and Russia, paragraph 424, the Grand Chamber judgment of 12 May 2005 in Öcalan v. Turkey, paragraph 179, and, most recently, the judgment of 01 June 2017 in Mindadze and Nemsitsveridze v. Georgia, paragraph 103. Article 3 makes no provisions for exceptions. Nor can any measures derogating from Article 3 be taken in times of emergency, as established by Article 15 of the ECHR. (12) In its practice, the Court of Human Rights has emphasized that in order for Article 3 to apply, a certain “minimum of severity” (“un minimum de gravité”) is required, cf., for example, the Grand Chamber judgment of 26 October 2000 in Kudla v. Poland, paragraph 91. Whether the threshold of severity has been reached is subject to an overall assessment, taking into account, inter alia, the nature of the treatment and its context, its duration, the physical and mental effects on the person subjected to it, and, in some cases, also the sex, age and state of health of the person, cf. the Grand Chamber judgment of 15 December 2016 in Khlaifia and others v. Italy, paragraphs 159–160. The purpose for the treatment is a central factor; strong indications of a violation would include circumstances where the intention was to humiliate or debase. Even for legitimately justified measures, however, Article 3 establishes a threshold, insofar as the nature, intensity or duration of these measures exceed what is necessary or in other ways cause disproportionate suffering, cf. the Grand Chamber judgment of 28 September 2015 in Bouyid v. Belgium, paragraphs 86–88. (13) The suffering and humiliation that necessarily follow from being deprived of one’s liberty do not in themselves constitute a violation of Article 3, cf. the Grand Chamber judgment of 08 July 2004 in Ilaşcu and others v. Moldova and Russia, paragraph 428. States are required, however, to ensure that every prisoner is detained in conditions that are compatible with respect for his human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and that his or her health and well-being are adequately secured, cf. the judgment of 27 November 2012 in Apcov v. Moldova and Russia, paragraph 40. In respect of a person who is deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct could, in principle, constitute a violation of Article 3, cf. the Grand Chamber judgment of 28 September 2015 in Bouyid v. Belgium, paragraph 88. (14) The ECtHR has developed a considerable body of precedents concerning solitary confinement of prisoners. In so doing, the European Court of Human Rights has largely established general criteria for when such isolation would infringe on the rights established by Article 3 of the ECHR. The central principles of this case law could, as concluded by the Appeals Selection Committee of the Supreme Court, be summarized in the following four tenets: (15) Firstly: The ECtHR has emphasized that the harmful potential of complete isolation, i.e. complete sensory deprivation, coupled with total social isolation, is so great that such isolation cannot be justified under any circumstances, cf. the judgment of 04 February 2003 in Van der Ven v. Netherlands, paragraph 51, and the Grand Chamber judgment of 12 May 2005 in Öcalam v. Turkey, paragraph 191. Relative isolation—in the form of absence of contact with other prisoners, which in a European context is a relatively common security measure—does not, according to said judgments, in itself constitute a violation of Article 3, cf, also the Grand Chamber judgment of 04 July 2006 in Ramirez Sanchez v.