Special Report to the Storting Document 4:3 (2018–2019) 38 The right to social contact with other people is protected under Article 8 of the European Convention on Human Rights.112 In the case of people who are deprived of their liberty greater scrutiny should be given to measures that further limit the possibility of social contact, and even a minor interference will be seen as an intrusion.113 Any interference in the inmates’ right of association that lacks sufficient basis in national law or is unnecessary or disproportionate can constitute a violation of Article 8.114 Human rights standards on solitary confinement Solitary confinement shall be used only in exceptional cases, as a last resort, and for as short a time as ­possible.115 This means that the measure must be strictly necessary and proportionate. The confinement must be proportionate to the risk of the inmate harming others or of being exposed to harm.116 Under the Nelson Mandela Rules, solitary confinement for 22 hours or more per day for more than 15 consecutive days shall be prohibited.117 All forms of solitary confinement should be accurately described in legislation, and it should be clear that solitary confinement must only be used in exceptional cases.118 , 119 Procedural safeguards must be in place to guarantee the inmate’s welfare and the proportionality of the measure. According to case law established by the European Court of Human Rights, decisions on solitary confinement shall be based on grounds that take account of the inmate’s circumstances, situation and behaviour, and it must be evident from the statement of grounds that these matters have been thoroughly assessed.120 The statement should be increasingly detailed and compelling according to the duration of the measure. 6.1 De facto solitary confinement Solitary confinement and restrictions on association with other inmates are extensively used for reasons that cannot be ascribed to the inmates’ own behaviour. If inmates are held in isolation because of urgent building or staffing conditions, for example flooding or fire, an administrative decision may be made to exclude them from the company of other inmates.121 The Correctional Service’s own figures show that a ­significant proportion of inmates in Norwegian prisons are excluded from the company of other inmates on ­account of more structural and permanent ­circumstances, however, without this being based on an administrative decision.122 Administrative decisions are made in some of these cases, but they are then based on a provision that only allows for exclusion in urgent ­situations (see Chapter 2 Definition of solitary confinement). 112 Commission Decision of 15 May 1980 McFreeley and Others v. the United Kingdom paragraph 82; ECtHR 17 July 2012 Munjaz v. the United Kingdom paragraph 80; 31 March 2005 Schneiter v. Switzerland page 14. 113 ECtHR 17 July 2012 Munjaz v. the United Kingdom, paragraph 80 (’even a minor such interference must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual’s will’.) 114 The ECHR Articles 8–10, and the European Prison Rules, Rule 4. 115 The Nelson Mandela Rules, Rule 45, and the European Prison Rules, Rule 53(1); Extract from the 21st General Report of the CPT (2011) on the topic of solitary confinement, CPT/Inf(2011) 28-part2; ECtHR case law, including Babrar Ahmad and Others v. the United Kingdom [referenced above] paragraph 212; The UN Special Rapporteur on Torture’s report to the UN General Assembly, 5 August 2011, A/66/268, paragraph 89. 116 Council of Europe: Committee for the Prevention of Torture (CPT), 21st General Report, 2011, CPT/Inf (2011) 28. 117 The Nelson Mandela Rules, Rule 44, cf. Rule 43(1)(b). 118 The European Prison Rules, Rule 53.3. 119 Council of Europe: Committee for the Prevention of Torture (CPT), 21st General Report, 2011, CPT/Inf (2011) 28, paragraph 55(b) 120 ECtHR 10 April 2012 Babar Ahmad v. the United Kingdom paragraph 212; 4 July 2006 Ramirez Sanchez v. France paragraph 145; 14 October 2010 A.B. v. Russia paragraph 111. 121 The Execution of Sentences Act Section 37 eighth and ninth paragraphs. 122 Directorate of the Norwegian Correctional Service, Dagsmålinger og manglende vedtak om utelukkelser (’Day surveys and lack of administrative decisions on exclusion’), letter of 8 April 2015 to the correctional service regions; Directorate of the Norwegian Correctional Service, Addendum No 4 to the letter of allocation for 2018 – Oppfølging av kritikk vedrørende psykisk syke og isolasjon i fengsel (’Follow-up of criticism regarding mentally ill inmates in solitary confinement’), letter of 25 September 2018 to the Norwegian Ministry of Justice and Public Security. 39 In 2018, the UN Committee against Torture expressed concern about the extent of de facto isolation in ­Norwegian prisons, and that it was largely based on building conditions and a shortage of staff. The ­Committee recommended that the Norwegian state party ensure that issues relating to infrastructure and staffing are not used as grounds for exclusion.123 The Committee also pointed out that: ‘conditions of de facto isolation that are similar to solitary confinement are not based on an individual administrative decision with a legal basis for exclusion and therefore cannot be challenged or appealed’.124 After its visit to Norway in 2018, the CPT expressed its misgivings that Section 37 of the Execution of ­Sentences Act allows inmates to be subjected to complete exclusion from company ‘if building or staff conditions necessitate this’. The CPT pointed out that it is not acceptable that inmates may be completely ­excluded from the company of other inmates for ­several days, due to logistical reasons (i.e. staff absences or layout of buildings). The Committee recommended that the Norwegian authorities take appropriate measures at Ila Detention and Security Prison, as well as in all other prisons in Norway, to prevent such instances from recurring in the future.125 The European Court of Human Rights has stressed that the member states must organise their prison systems so as to safeguard the inmates’ dignity, regardless of financial or practical challenges.126 Day surveys indicate that isolation on account of financial or practical challenges is the most common form of solitary confinement. In some cases, this represented more than half the instances of isolation. The ­Parliamentary Ombudsman’s own figures also indicate that a clear majority of the instances in which inmates have less than eight hours’ association with other inmates are due to such circumstances. De facto isolation is largely based on three identifiable sets of circumstances: 1) The absence of national standards on association with other inmates There are no national standards on when or for how long inmates should normally be allowed to associate with other inmates. According to the Directorate of the Norwegian Correctional Service, ‘the start and end of periods when inmates are allowed to be in each other’s company shall be decided in advance by the individual prison section’.127 As long as this is decided as part of the day’s programme, it will be up to each prison and each section to decide on the extent of social contact between inmates each day. During our visits, we have found wide disparities ­between the times that both prisons and individual prison sections lock inmates in and out of their cells.128 In some prisons, we have found sections that are referred to as communal sections even though inmates are locked up in their cells for an average of more than 22 hours a day. This is also based on the special rules laid down in the Directorate’s guidelines for what is known as intake units.129 The guidelines allow prisons to use cell blocks that are not adapted for association between inmates, without this being based on an administrative decision. The lack of clear statutory or regulatory requirements on the extent of association inmates are entitled to, gives rise to confusion about when the imposition of ­restrictions on association with other inmates require an administrative decision on exclusion from the ­company of other inmates. This is problematic in light of the principle of legality and the human rights ­requirement that there must be a clear legal basis for intrusive measures.130 In addition to being intrusive, harmful to health and a hindrance to successful reintegration into society, it weakens the inmates’ legal safeguards, among other things by removing the right of appeal. It also weakens the governing authority’s know­ ledge about the extent of de facto isolation and exclusion. 123 The UN Committee against Torture’s concluding observations on Norway’s eighth periodic report on the implementation of the UN Convention against Torture, 5 June 2018, (CAT/C/NOR/CO/8) paragraphs 17(a) and (b) and paragraph 18(a). 124 The UN Committee against Torture’s concluding observations on Norway’s eighth periodic report on the implementation of the UN Convention against Torture, 5 June 2018, (CAT/C/NOR/CO/8) paragraph 17(b). 125 Council of Europe: Committee for the Prevention of Torture (CPT), Report to the Norwegian Government on the visit to Norway 2018,  CPT/Inf (2019) 1, paragraph 69. 126 See the ECtHR judgment of 20 October 2016 (Grand Chamber) Muršić v. Croatia, paragraph 100 with further references. See also the European Prison Rules, which state that: ’Prison conditions that infringe prisoners’ human rights are not justified by lack of resources’. (Basic principle no 4). 127 Directorate of the Norwegian Correctional Service (2002). Guidelines to the Execution of Sentences Act section 17.1. Revised version of 27 October 2008. 128 The Parliamentary Ombudsman’s reports after its visits to Bredtveit Prison 15–16 March 2016, p. 24, and Drammen Prison 24–25 May 2016, pp. 24–25. 129 Directorate of the Norwegian Correctional Service (2002). Guidelines to the Execution of Sentences Act and its Regulations, section 37.3. Revised version of 2 April 2019. 130 See the Norwegian Constitution Article 113 and ECHR Article 8(2).