The Norwegian version of this article can be found here.
In his latest Observer column, Nick Cohen is extremely critical of the recent court ruling on Anders Behring Breivik’s prison conditions. Sadly, Cohen’s criticism is based on a large number of incorrect or highly misleading facts – not least the repeated claim that the court ruled that Breivik was being “tortured” in prison.
The fact of the matter is that nobody – not even Breivik’s lawyer, much less the verdict – has claimed that he was being tortured (in the precise and legal sense of the term. (True, Breivik himself has repeatedly complained of “torture”, but the myriad outlandish claims of a deranged terrorist are hardly pertinent or relevant to the point Cohen is attempting to make.)
The charge brought by Breivik’s lawyer – and partially granted by the court – was only the lesser charge of “inhuman and degrading treatment“. Obviously, such an accusation of behalf of a terrorist mass murderer is still highly provocative, but it is significantly and fundamentally different (both legally and emotively) from “torture”.
Secondly, the court found that Breivik’s solitary confinement was not, in and of itself, a violation of the his rights. The ruling in Breivik’s favour stemmed from the court’s conclusion that the prison system had not (sufficiently) proved that all of their restrictions were necessary for security reasons.
In principle, the prison could maintain the identical conditions and still comply fully with this ruling – providing they documented more thoroughly and specifically that these measures were inevitable (for example, that there were no other ‘available’ inmates that could be permitted contact with Breivik).
The court’s ruling on this matter also presupposes that all such contact with other inmates will be supervised by the prison staff, presumably in such a way as to avoid the risks of both ‘conversion’ and hostage-taking.
Similarly, the court criticised the earlier (and already discontinued) practice of strip-searching Breivik following each visit to the prison’s exercise yard – not because such searches are intrinsically unacceptable, but because they were carried out even when Breivik had been so closely supervised that there was no reasonable risk of him concealing any object.
Alongside Breivik’s isolation from all other prisoners, Cohen also mentions that he “can’t issue proclamations” – and that neither of these restrictions should be called “torture”. In addition to the previously mentioned fact that no-one has called it “torture”, Cohen’s reference to Breivik’s “proclamations” is even more inexplicable. Breivik claimed that the restrictions upon his communication were infringing his rights, but on this point the court found wholly in favour of the state, concluding that all these restrictions were (and are) both legitimate and necessary to prevent the incitement of further crimnal acts.
And finally, on the slightly more nitpicky level, I don’t know what Cohen means by “judge Sekulic and her colleagues decided“, given that she was the sole judge handling the case. Of course, there have been other legal experts that have endorsed the verdict, but it’s hardly been an unbroken and unanimous support – and not a single other person has been formally involved with handing down the verdict.
Indeed, Cohen’s criticism of the verdict might have been better served by stressing the fact that this is only the decision of one single judge, which doesn’t necessarily fully represent neither the Norwegian legal system nor some more abstract ideal justice. There is a perfectly legitimate case (which I partly agree with myself) to be made that the court’s ruling is too cavalier about the genuine security risks posed by Breivik, and therefore goes too far in calling for a loosening of restrictions.
It’s also entirely true – although not necessarily decisive for whether his human rights have been infringed or not – that there are many, many prisoners who are subjected to a solitary confinement which is far harsher by any measure.
But if we’re supposed to debate the limits of human rights and the validity of the court’s ruling in this specific case, we at least need to base the debate on the correct facts, and not a significantly distorted version. (Especially when so much of the piece is underpinned by an indignation over a non-existent claim that Breivik is subjected to “torture”.)
And the fundamental baseline of the court’s ruling is that all aspects of Breivik’s current treatment are in principle legal – providing they are shown to also be necessary for reasons of security and suchlike. However, it is not acceptable to implement such restrictions as additional punishment (above and beyond the standard treatment of prisoners) if there is no such requirement for their imposition.
That, surely, is a general tenet of the rule of law that most people would agree with. Thus (at least in my clear opinion) there is plenty of room for legitimate and even vehement disagreement with the court’s decision – but such a debate needs to address and discuss the case-specific weighting of the relevant arguments and evidence. The underlying principles are – or at the very least ought to be – widely accepted, both among legal experts and (presumably) within what Cohen calls “the reality-based community“.