Special Report to the Storting Document 4:3 (2018–2019) 22 The prohibition can thus apply to disproportionate use of force or coercive measures. Any act intended to intimidate the victim can constitute degrading ­treatment, though the pain or suffering may be less severe than in the case of torture. The threshold for acts and omissions covered by the prohibition is lower when dealing with individuals deprived of their liberty.33 This is because those who have been deprived of their liberty are completely dependent on the state’s protection in order to safeguard their rights. The UN Convention against Torture obliges member states to put effective measures in place to prevent ­torture and other cruel, inhuman or degrading ­treatment.34 This includes an obligation to enact ­effective legislative measures.35 People who are deprived of their liberty are particularly vulnerable to violations of personal integrity. The state parties are therefore obliged to ensure that national prison rules meet the minimum standards for the treatment of prisoners.36 The state parties are also obliged to ensure that everybody who is involved in the treatment of people who have been deprived of their liberty receive training about the prohibition against torture and inhuman treatment.37 The prohibition against torture and inhuman or ­degrading treatment or punishment is also enshrined in Article 3 of the European Convention on Human Rights (ECHR). The European Court of Human Rights (ECtHR) has stated, among other things, that for an interference to constitute a violation of Article 3, it must attain a minimum level of ­severity. Other factors of importance are the duration of the measure, its physical and mental effects and sometimes the victim’s state of health.38 In cases involving deprivation of liberty, account shall be taken of the overall impact of the conditions under which the sentence is served.39 33 34 35 36 37 38 39 40 41 42 43 44 3.3 Solitary confinement and association with other inmates Based on practice, international human rights bodies have developed standards for the use of solitary ­confinement and restrictions on association with other inmates. Solitary confinement can entail violation of the ­prohibition against torture, for example if it is used as a means of exerting pressure to obtain a confession.40 When visiting Norway in the 1990s, the CPT found ­information indicating that solitary confinement and threats were used to obtain a confession from ­detainees.41, 42 Since then, systematic changes have been made to the police’s interview techniques to reduce the risk of solitary confinement being used as a means of exerting pressure to obtain a confession. The use of solitary confinement can also constitute a violation of the prohibition against cruel, inhuman or degrading treatment or punishment. International human rights bodies have in several cases concluded that this part of the prohibition has been violated.43 The European Court of Human Rights has stated the following about solitary confinement: «Solitary confinement is one of the most serious measures which can be imposed within a prison (...) and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have ­damaging effects, resulting in deterioration of mental ­faculties and social abilities. (...) Indeed, as the Committee’s most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is».44 The Special Rapporteur’s report to the UN Commission on Human Rights on the question of torture, 2006, E/CN.4/2006/6, paragraphs 34–41 and ECtHR 28 September 2015 Bouyid v. Belgium. The UN Convention against Torture Article 2 cf. Article 16; the UN Committee against Torture, General Comment No 2, Implementation of Article 2 by State Parties, 24 January 2008, CAT/C/GC/2; UN Subcommittee on Prevention of Torture (SPT), The approach of the Subcommittee on Prevention of Torture to the concept of prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 30 December 2010, CAT/OP/12/6. The UN Convention against Torture imposes a number of other obligations on the state parties, including that they are required to use national criminal law to punish the use of torture (in accordance with Articles 4 to 9), grant redress and rehabilitation to victims of torture (Article 14), and to investigate torture and other cruel, inhuman or degrading treatment or punishment (Articles 12 and 13). The UN Convention against Torture Article 11, cf. Article 16. On several occasions, the UN Committee against Torture has referred to the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) in its interpretation of Article 11. The UN Convention against Torture Article 10, cf. Article 16. ECtHR 18 January 1978 Ireland v. the United Kingdom paragraph 162, and 1 June 2010 Gäfgen v. Germany (Grand Chamber judgment) paragraph 88. ECtHR 6 March 2001 Dougoz v. Greece paragraph 46. The UN Special Rapporteur on Torture’s report to the UN General Assembly, 2011, A/66/ 268, paragraph 73. Council of Europe: Committee for the Prevention of Torture (CPT). Report to the Norwegian government on the visit to Norway 1993, CPT/Inf (94) 11, paragraphs 13 and 60. Council of Europe: Committee for the Prevention of Torture (CPT). Report to the Norwegian Government on the visit to Norway 1999,  CPT/Inf (2000) 15, paragraph 41. ECtHR 17 April 2012 Piechowitz v. Poland; 9 October 2012 X v. Turkey; 17 April 2010 Onoufriou v. Cyprus. See also the UN Human Rights Committee, 6 November 1997 in Polay Campos v. Peru. ECtHR 10 April 2012 Babar Ahmad v. the United Kingdom, paragraphs 206–207. 23 Whether solitary confinement constitutes inhuman or degrading treatment depends on its duration, the ­stringency of the measure, its purpose and how it affects the detainee.45 Because an overall assessment is required, the ECtHR has not defined any precise limits for the length of isolation that would constitute violation of Article 3.46 It has pointed out that it can cause ­immediate harm, stressed that solitary confinement cannot be continued indefinitely,47 and been particularly critical of the imposition of restrictive measures on detainees who are neither dangerous nor disruptive to other inmates.48 The ECtHR has also ruled against ­solitary confinement that does not appear to be ­reasonable in light of its purpose,49 and against ­continued confinement when an inmate is no longer considered to be a security risk.50 Increasingly, the ECtHR has also emphasised whether legal safeguards are in place to protect the welfare of inmates and ensure that the measure is proportionate.51 In cases where the threshold for violation of Article 3 has not been met, solitary confinement or restrictions on association with other inmates, or lack of medical follow-up, can constitute violation of the right to respect for the inmate’s private life within the meaning of Article 8 of the European Convention on Human Rights.52 The UN and the Council of Europe have also adopted a number of human rights standards that address the use of solitary confinement and restrictions on association with other inmates, 53 including the Nelson Mandela Rules and the European Prison Rules.54 Based on many years of visiting prisons in the Council of Europe’s member states, the CPT has developed standards for hours of activity and hours to be spent outside the cell and to limit the amount of solitary confinement.55 The UN Special Rapporteur on Torture has also issued clear recommendations.56 45 46 47 48 49 50 51 52 53 54 55 56 The human rights standards that apply to the use of ­solitary confinement and restrictions on association with other inmates are described in the introduction to each section in Part 2 of this report. The Nelson Mandela Rules – the UN Standard Minimum Rules for the Treatment of Prisoners The UN Standard Minimum Rules for the ­Treatment of Prisoners (Nelson Mandela Rules) were revised in 2015 and contain the most recent rules on the use of solitary confinement. The N ­ elson Mandela Rules state that solitary ­confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority (Rule 45 (1)). Confinement of prisoners for 22 hours or more a day without meaningful human contact for a period of 15 consecutive days is prohibited under the rules (Rule 44). The Nelson Mandela Rules were developed through cooperation across states and on the ­basis of international case law. They are not legally binding per se, but a manifestation of ­consensus on minimum standards for the treatment of prisoners. Furthermore, in several instances, international courts like the European Court of Human Rights have used these human rights standards as sources of law in their ­judgments relating to solitary confinement. Compliance with the Nelson Mandela Rules is therefore important to ensure that prisoners are treated in accordance with human rights, ­particularly to prevent violation of the absolute prohibition against torture and inhuman ­treatment. ECtHR 21 July 2005 Rohde v. Denmark paragraph 93. ECtHR 4 July 2006 Ramirez Sanchez v. France paragraph 138; 12 May 2005 (Grand Chamber judgment) Öcalan v Turkey, paragraph 191. ECtHR 4 July 2006 Ramirez Sanchez v France paragraphs 136 and 145. ECtHR 14 October 2010 A.B. v Russia paragraph 105; and 7 June 2011 Csüllög v. Hungary, paragraph 36. ECtHR 7 June 2011 Csüllög v. Hungary, paragraph 34. ECtHR 9 July 2009 Khider v. France, paragraphs 118 and 119. ECtHR 10 April 2012 Babar Ahmad v. the United Kingdom, paragraph 212; 17 April 2010 Onoufriou v. Cyprus. ECtHR 26 November 2009 Dolenec v Croatia paragraphs 128 and 165; and 17 July 2012 Munjaz v. the United Kingdom, paragraphs 78–82; inadmissibility judgment of 31 March 2005Schneiter v. Switzerland, p. 14. See also the Commission Decision of 15 May 1980 in McFeeley and others v. the United Kingdom, paragraph 82. The UN Special Rapporteur on Torture’s report to the UN General Assembly, 2011, A/66/268, which focuses on the use of solitary confinement. The UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), adopted by the UN General Assembly on 17 December 2015. Council of Europe: Committee for the Prevention of Torture (CPT), 21st General Report, 10 November 2011, CPT/Inf (2011) 28. The UN Special Rapporteur on Torture’s report to the UN General Assembly 2011, A/66/268, which focuses on the use of solitary confinement.