44 That the legal basis is insufficiently precise is also problematic considering the principle of legality as laid down in the Norwegian Constitution.142 Our findings indicate that solitary confinement is widely used as a control measure. According to the ­Correctional Service, almost 600 administrative ­decisions on complete exclusion were implemented on the basis of this provision during the period September–­December 2018 (four months). By ­comparison, Denmark recorded approximately 400 administrative decisions on exclusion as a control measure for 2017 as a whole.143 In connection with the visit to Bergen Prison in 2018, the prison administration reported 446 administrative decisions on complete exclusion from company based on Section 37 of the Execution of Sentences Act in 2017.144 More than 90 per cent of these decisions were made to ‘maintain peace, order and security’. A review of decisions from other prisons show the same trend. 6.3 Solitary confinement by choice If an inmate wishes to be excluded from the company of other inmates, the prison administration shall make an administrative decision to that effect on the basis of Section 37 ninth paragraph of the Execution of Sentences Act. In our experience, based on our visits, many inmates prefer to be excluded because they do not feel safe in the company of other inmates. The Directorate of the Norwegian Correctional Service’s day surveys in 2018 showed that, on average, 33 inmates were excluded from the company of other inmates on their own request on the days of the surveys. The actual figure is probably much higher, because inmates are only placed in the category ‘on their own request’ if they are held in isolation based on an administrative decision on exclusion in accordance with Section 37 ninth paragraph. The Directorate considers that an administrative decision shall only be made where the inmate expressly requests to be excluded from the company of other inmates.145 Special Report to the Storting Document 4:3 (2018–2019) Limited staff presence in the communal sections can add to vulnerable inmates’ feeling of insecurity and be a contributory cause of self-isolation. Such conditions can also make isolated inmates more prone to withdraw socially in that they do not feel safe re-associating with other inmates. We have observed this during several visits (see section 8.1 Inmates who chose solitary c ­ onfinement (self-isolation) for a more detailed ­description on this point). Passivity and withdrawal can also make it difficult for individuals to attend to their own health and welfare, and can be the start of a negative development of further withdrawal and depression (see section 4.2 Health effects of solitary confinement). Norwegian authorities have an obligation to ensure the safety of people deprived of their liberty, and lack of protection can entail violation of the prohibition against inhuman or degrading treatment.146 Arrangements shall be made to allow for as much social contact as possible between inmates, in a secure setting. Inmates should only be held in isolation for their own protection when their security cannot be ensured in any other way.147 The Parliamentary Ombudsman has expressed concern that the extent of self-isolation is particularly highin some prisons, and pointed out the importance of prisons making active efforts to ensure a safe prison environment, including for vulnerable inmates. During one visit we found that: ‘At the time of our visit, five per cent of all inmates had been excluded from the company of others on their own request. According to the prison statistics, there had been 90 administrative decisions on self-­requested exclusion in 2016. (…) It emerged that several of those who were or had been excluded from the company of other inmates on their own request did not feel safe, and that they ­suffered from anxiety disorders’.148 142 Article 113 of the Norwegian Constitution. 143 The Danish Department of Prisons and Probation’s statistics for 2017, Table 5.3. See the Danish Sentence Enforcement Act Section 63. Danish legislation does not make any distinction between complete and partial exclusion. 144 The Parliamentary Ombudsman’s report after its visit to Bergen Prison 2–4 May 2018, p. 22 ff. 145 Directorate of the Norwegian Correctional Service, letter of 3 April 2019 to Correctional Service Region West. 146 ECtHR 3 June 2003 Pantea v. Romania, paragraphs 188–196; 10 February 2011 Premininy v Russia, paragraphs 70–74. 147 Council of Europe: Committee for the Prevention of Torture (CPT), 21st General Report, 10 November 2011, CPT/Inf (2011) 28, pp. 4 and 6. 148 The Parliamentary Ombudsman’s report after its visit to Åna Prison, 13–15 November 2017, pp. 31–32. 45 6.4 Prolonged solitary confinement According to human rights standards, people shall be held in isolation for as short a period as possible. Under the Nelson Mandela Rules, solitary confinement for 22 hours or more a day for more than 15 consecutive days shall be prohibited. The background to this strict time ­limit is the risk that the harmful mental effects of isolation can become irreversible after such a length of time.149 Under Section 37 fifth paragraph of the Execution of Sentences Act, inmates may be held in isolation for up to one year at a time.150 In the preparatory works to the Act, it is stated that a new one-year period may be initiated after contact with other inmates has been ‘tried out’, with no further indication of what this entails.151 Furthermore, no upper time limits apply to sections adapted for inmates with special needs, or for inmates in the highest security sections, other than that the use of isolation must not appear to be ‘disproportionate’.152 Nor is there any upper time limit for inmates who request isolation, for the use of isolation on resource grounds or for the use of security cells.153 The Parliamentary Ombudsman has repeatedly drawn attention to the problem that Norwegian legislation allows for prolonged solitary confinement, contrary to human rights standards.154 International human rights bodies have also criticised Norway on this point. In 2018, the UN Committee against Torture expressed concern about the absence of a set maximum number of days an inmate can be completely excluded from the company of other inmates and recommended that the maximum number of days an inmate can remain in complete exclusion be specified in the legislation.155 Figures obtained from the Directorate of the Norwegian Correctional Service confirm that, each year, many inmates are held in isolation for 22 hours or more for periods longer than the 15 consecutive days provided for in the Nelson Mandela Rules. The figures indicate that, during the period 2014–2018, there were a total of 754 administrative decisions on complete exclusion for more than 14 days in pursuance of Section 37. Complete exclusion means that there is no contact whatsoever with other inmates for 24 hours a day. ­Figures obtained from the Directorate indicate that there were 83 administrative decisions on use of complete exclusion as a control measure for more than 42 days during the period 2015–2018.156 The longest period of exclusion under an administrative decision was 760 days. According to the figures from the same period, 73 administrative decisions on complete exclusion at the inmate’s own request covered periods of more than 42 days. Twenty-five of the decisions covered 100 days or more, two covered more than 200 days and three covered more than 300 days. The decision covering the longest period was still in effect on 11 February 2019, after 487 days. Isolation for such a long period entails a high risk of irreversible harmful effects on health. The risk of violating the prohibition against inhuman treatment is therefore particularly high in the case of prolonged solitary confinement. 149 The UN Special Rapporteur on Torture’s report to the UN General Assembly, 2011, A/66/268, paragraph 26. 150 Section 37 fifth paragraph only applies to ’exclusion’ pursuant to Section 37 first paragraph. 151 Ministry of Justice and the Police (2000). Om straffegjennomføringsloven (’About the Execution of Sentences Act’), Proposition No 5 to the Odelsting (2000–2001), p. 104, section 7.6.3.5. Oslo: Ministry of Justice and the Police. 152 Separate rules apply to this group of inmates as provided for in the Execution of Sentences Act Section 17 second paragraph, see also Section 37 tenth paragraph. Regulations of 22 February 2002 No 183 in pursuance of the Execution of Sentences Act, Section 6-3 third paragraph (exclusion in the highest security sections). See also Regulations of 5 March 2004 No 481 relating to Implementation of the Criminal Sanction of Preventive Detention (in Norwegian only), Section 13(2) final sentence (exclusion in units for prisoners with special needs) 153 It is expressly stated that the one-year time limit only applies to complete and partial exclusion pursuant to Section 37 first paragraph; cf. fifth paragraph. The time limit of three days, with the possibility of a three-day extension subject to an administrative decision at the regional level, only applies to ’collective exclusion’ of inmates pursuant to Section 37 eighth paragraph. See 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. 154 The Parliamentary Ombudsman’s consultation submissions on guidelines for exclusion from company pursuant to the Execution of Sentences Act Section 37 (1 November 2016), and written input to the UN Committee against Torture of 22 March 2018. 155 The UN Committee against Torture’s concluding observations on Norway’s eighth periodic report on the implementation of the UN Convention against Torture (CAT/C/NOR/CO/8), paragraphs 17 and 18. 156 The Execution of Sentences Act Section 37 first paragraph and Section 17 second paragraph (the figures also include some inmates who were subsequently transferred on their own request pursuant to Section 37 eighth paragraph). Five of the 78 decisions had not been closed by 11 February 2019.