In the Concluding Observations of 25 April 2006, para. 13, after the examination of Norway’s 5th periodic report, the Committee expressed concern about the Norwegian provisions on solitary confinement.
The use of solitary confinement during execution of sentences is not addressed in the sixth periodic state report. However, we wish to draw attention to the subject, as it is of a high importance when considering the serious damage that solitary confinement may impose on those who are subjected to it. Generally, a lot of attention is rightfully given to the problems of solitary confinement during pre-trial detention, but in regard of regular imprisonment, the subject is more rarely addressed.
Section 40 of the Execution of Sentences Act of 18 May 2001 explicitly lists all the different forms of sanctions that lawfully can be used towards an inmate when prison rules and regulations are deliberately violated. Since the said law was changed, solitary confinement may no longer be used as a sanction (only partial confinement can). However, we are concerned that in practice, this change has not fully repaired the formerly criticized use of solitary confinement in Norwegian prisons. This concern is due to the following other provisions under which solitary confinement is legal:
- Solitary confinement due to suspicion of committed violations
Section 39 of the Execution of Sentences Act gives the prison the authority to hold an inmate in solitary confinement for 24 hours when there is suspicion of certain violations of the applicable prison regulations. This includes less serious violations, but not the least serious category. Seriousness is measured by which sanctions a violation may lead to according to section 40. For instance, suspicion of a violation severe enough to result in the loss of the right to watch TV inside the cell, qualifies for such 24 hour solitary confinement. According to the regulation that detail section 39, the probability of the inmate’s guilt must be more than 50% for isolation to be applied. The stated reason for the provision is to give the prison the possibility to establish facts about the alleged violation.
There are no limits to how many times this measure may be used, neither towards one person, nor to how often. Time in solitary confinement will be subtracted from the sentence measured out if guilt is proven. However, there are no ways of repairing the unrighteous use of solitary confinement towards inmates that are not found guilty of an alleged violation. We are concerned that section 39 may provide opportunities for prison officers to make informal punishments in form of solitary confinement towards inmates that for example are considered “difficult”.
Prisons have no duty to report the use of 24 hours solitary confinement pursuant to section 39 to any higher authority, neither regarding frequency nor factual basis. Therefore, there are no outside control or official statistics on the application of solitary confinement under this rule. How often it is employed, and to whom it is used, remains unanswered.
- Solitary confinement as a preventive measure
Section 37 of the Execution of Sentences Act is called “Exclusion from company as a preventive measure”. Pursuant to this section, the Correctional Services may decide that a prisoner shall be wholly or partly excluded from the company of other prisoners if this is necessary in order to:35
“a) Prevent prisoners from continuing to influence the prison environment in a particularly negative manner in spite of a written warning,
b) Prevent prisoners from injuring themselves or acting violently or threatening others,
c) Prevent considerable material damage,
d) Prevent criminal acts, or
e) Maintain peace, order and security”
In addition, it follows from the provision that the Correctional Services shall decide on partial exclusion if that is sufficient to achieve the purpose, and that the complete or partial exclusion shall constantly be considered and not be maintained longer than necessary. Further, paragraphs 7 and 8 of the provision states that solitary confinement may be used when it’s required solely because of the resource situation in the local prison (in situations of staff and buildings challenges).
It is within the discretion of local prisons to apply the described measures, including the application of “complete exclusion of company”, which means solitary confinement. There is a duty to report to higher authorities under this provision;36
“ If complete exclusion from company exceeds 14 days, the regional level shall decide whether the prisoner shall continue to be excluded. If the total period of exclusion exceeds 42 days, the measure shall be reported to the Norwegian Correctional Services. After that, reports shall be made to the Norwegian Correctional Services at 14-days intervals. Exclusion pursuant to items a) to e) of the first paragraph may only extend beyond one year if the prisoner himself or herself so wishes.”
Evidently, section 37 gives a rather wide authority to apply solitary confinement. The list of generating situations pursuant to section 37, first paragraph, items a) to e) (listed above) is exhaustive. Especially item e), to “Maintain peace, order and security” is very extensive, vague – and judging from the wording, a lot of behaviour may be covered. For instance, may the word “order” apply to an inmate who does not want to take part in the activities he or she is assigned to?; or who does not keep his cell tidy? There is little or no guidance in regulations, case law, white papers or literature as to how this provision in general, or item e) in particular, should be applied. Further, there are no statistics available to us on the discretionary decisions that are made pursuant to section 37. When staff and building challenges are considered as sufficient grounds for confinement), it is hard to argue that the provision has limits at all. We are concerned that section 37 may imply that solitary confinement can be used as a sanction in practice. Some inmates have made statements to this effect, but surveys or methodical examinations of the issue are not available to us.
In general, we recommend that the provisions regulating imprisonment are made clearer and less dependent on individual assessment. In our opinion, the risk of abuse generally increases if law provisions are made vaguer. It is a fair observation that over the last two decades, the prison regime as a whole increasingly depends on the personal judgements of prison officers. The wide powers of discretion in the application of vague provisions necessitate a stronger monitoring than is currently in place.
- Monitoring of practice within the legal framework
Considering the potentially problematic aspects of the said legal provisions (sections 37 and 39), one should expect Norway to keep adequate statistics and records, on local, regional and national level, in order to document the use of solitary confinement as part of active monitoring against possible abuse. Statistics should be sufficiently detailed and informative to evaluate discretionary practice, and should be available to decision makers as well as to the public, the press and watchdog organisations.
- “Informal” solitary confinement
Persons in pre-trial detention or prisons may be excluded from company due to the resource situation or other practical reasons (for instance illness in the staff, or because there is no activity room available) without a formal decision to this effect. In such situations, the prison officers do not have to specify the grounds of the confinement, and the confinement goes clear of any possible monitoring. According to informal statements from lawyers, legal aid workers and officials, this is a problem large enough to be called general. According to information from the national prison administration, correctional services at the regional level must report on a frequent basis on whether their prisons fulfil the “minimum level” of activities or company for the inmate outside the prison cell, measured by hours per day. However, perceptions of “minimum level” vary between regions. We have not succeeded in getting an official definition of what the countrywide minimum level is and why. Such a definition needs to be made.
It should be mentioned that organisations in the Norwegian NGO Forum for Human Rights have previously shared some of the above mentioned concerns with the Committee against Torture, during the last periodic review of UN CAT.
Recommendations to Norway:
Norway should actively monitor and regularly analyze the statistics on the use of coercive measures in prisons.
Norway should produce adequate statistics on the practice of the use of solitary confinement pursuant to section 39 of the Execution of Sentences Act.
Norway should produce adequate statistics on the practice of the use of solitary confinement pursuant to section 37 of the Execution of Sentences Act.
Norway should reassess the wording of section 37 and the conditions given by the provision, especially the question of whether the provision gives too wide an authority to individual prison administrations.
Norway should assess and define the “minimum level” of time for activities or company outside the prison cell, and make this a national standard.
Norway should make sure that the necessary resources are given to the prisons in order to ensure that the inmates are not in practice being excluded from company, even if they are not subject to restrictions according to any law provisions.