Special Report to the Storting Document 4:3 (2018–2019) 18 19 Legal authority for use of solitary confinement in Norwegian legislation Norwegian legislation has a number of provisions that permit the use of solitary confinement and restrictions on association with other inmates.13 ­Solitary confinement may be decided through an administrative decision by the Correctional Service or by the courts.14 This report concentrates on the use of solitary confinement as a consequence of ­decisions made by the Correctional Service or of ­actual circumstances in the prison. The courts’ ­authority to impose ‘complete isolation’ on remand ­inmates as provided for in Section 186 a of the Criminal Procedure Act will not be considered in any depth. 1) Solitary confinement as a control measure Under Section 37 first paragraph of the Execution of Sentences Act, prisons may decide that an inmate shall be wholly or partly ‘excluded from the ­company of other prisoners’. This may be done when ­necessary to prevent inmates from having a ­particularly negative effect on the prison ­environment, to prevent inmates from injuring themselves or acting violently or ­threatening others, to prevent considerable material damage, to prevent criminal acts or to maintain peace, order and security in the prison.15 Under Section 17 second paragraph of the Execution of Sentences Act, inmates in sections adapted for those with special needs etc. may be completely or partially excluded from the company of others in the interest of peace, order and security, or if it is in the interest of the inmates themselves or other inmates. According to the Directorate of the Norwegian ­Correctional Service’s guidelines, ‘complete exclusion’ means that inmates are not allowed any form of ­association with other inmates.16 Hence complete exclusion will in all normal cases amount to solitary confinement as defined in the Nelson Mandela Rules.17 According to the Directorate, partial exclusion means restrictions on the inmate’s access to the company of others, for example that they are denied the possibility of attending work or school when this is considered necessary, but that they are allowed to socialise with other inmates later in the day. As defined by the Directorate, partial exclusion can cover everything from a few minutes’ daily association with other inmates to a few minutes’ removal from normal association with other inmates. In practice, this means that partial exclusion can also amount to solitary confinement as defined in the Nelson Mandela Rules. 2) Solitary confinement for reasons related to building or staffing conditions Strictly by way of exception, restrictions on association with other inmates may be decided for reasons that are beyond the control of the individual inmate. This is subject to stringent requirements. Under Section 37 ninth paragraph of the Execution of Sentences Act, an inmate may be wholly or partially excluded from the company of other inmates if necessitated by urgent building or staffing conditions.18 In extraordinary ­situations, such exclusion may apply to all inmates.19 This may be relevant where fire or water damage has made it unsafe to use common areas. That the conditions must be ‘urgent’ means that the inmates may not be excluded from the company of others on account of a generally difficult staff situation and that the exclusion must be of short duration. 3) Solitary confinement based on the inmate’s own request A decision to exclude an inmate from the company of other inmates may also be made on the inmate’s own request.20 Inmates may request solitary ­confinement for several reasons and not necessarily because they do not want social contact with other inmates. An ­inmate may, for example, request solitary ­confinement because of poor health, feelings of insecurity or fear of other inmates. 4) Solitary confinement in a security cell or restraint bed Solitary confinement may also be a result of the inmate being placed in a security cell. This may be done if strictly necessary to prevent serious attack on or injury to a person, to prevent the ­implementation of serious threats or considerable damage to property, or to prevent escape from prison and during transportation to or from a ­destination.21 ­Detainment in a security cell is a particularly intrusive form of solitary confinement, because the inmates is placed in a bare cell that is unfurnished except for a plastic mattress and a squat toilet. Security cells are often placed some way away from other cells. Where strictly necessary in order to prevent self-­ inflicted injuries, the inmate may be strapped to a restraint bed.22 Being held in a restraint bed can amount to a form of solitary confinement because of lack of human contact. Furthermore, the measure is a severe restriction of the freedom of movement and access to sensory impressions.23 Door to security cell with damages from inmates. 13 14 15 16 17 18 19 20 21 22 23 Pursuant to Section 17 first paragraph of the Execution of Sentences Act, the Correctional Service may ’decide on complete or partial exclusion from company pursuant to the provisions of Section 29 second paragraph, Sections 37, 38, 39 and Section 40 second paragraph (d)’. Pursuant to Section 17 second paragraph, partial or complete exclusion may also be used in sections adapted for inmates with special needs, including those that have been sentenced to special criminal sanctions or preventive detention, or who are kept in the highest security sections. Section 186a of the Criminal Procedure Act also permits complete exclusion from the company of other inmates. In addition, use of isolation as a disciplinary sanction is permitted under the Execution of Sentences Act Section 39, Section 40 second paragraph (d) permits use of partial isolation, and Section 29 second paragraph permits use of isolation by confinement to a single room with a special toilet. These forms of isolation are used less extensively and for shorter periods, and they are only mentioned where pertinent. Section 37 first paragraph (a)–(e) of the Execution of Sentences Act. Directorate of the Norwegian Correctional Service (2002). Guidelines to the Execution of Sentences Act and its Regulations, section 37.4. Revised version of 2 April 2019. In quite exceptional cases, it is conceivable that employees or other independent parties can provide inmates with meaningful human contact within the meaning of the Nelson Mandela Rules. This is challenging, however, since the balance of power between staff and inmates makes such relations difficult, and because it is made difficult by other tasks that staff are required to perform. Exceptions are conceivable under special regimes where considerable staff and dedicated resources are allocated. Directorate of the Norwegian Correctional Service (2002). Guidelines to the Execution of Sentences Act and its Regulations, section 37.17. Revised version of 2 April 2019. The Execution of Sentences Act Section 37 eighth paragraph. The Execution of Sentences Act Section 37 ninth paragraph. The Execution of Sentences Act Section 38 and the Directorate of the Norwegian Correctional Service’s guidelines, which limit the use of security cells to the cases mentioned in the Execution of Sentences Act Section 38 first paragraph (a), (b) and (d). The Execution of Sentences Act Section 38 and the Directorate of the Norwegian Correctional Service’s guidelines section 38.7. The guidelines limit the use of restraint beds to cases where the purpose is to prevent self-inflicted injuries. There is no legal or regulatory requirement for follow-up by staff or access to human contact. According to section 38.7 of the Directorate’s guidelines, an inmate held in a restraint bed shall be continuously monitored.