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Parts Four & Five: Evaluation & Conclusion

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by

Rebecca Owers

on 20 March 2017

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Transcript of Parts Four & Five: Evaluation & Conclusion

Evaluating the jurisprudence of the ECtHR and its application in the Breivik case
Oslo District Court Decision
Criticisms of the Oslo Breivik judgment
Part Five: Conclusion
Evaluation
2. Degree of Isolation
Relative vs. Total Isolation
Ilascu case held that complete sensory & social isolation can destroy personality
Mental or physical stimuli
3. Legitimate Aim
Rationale given by the State
Security based justification
Increasingly detailed & compelling justification
Norwegian Court emphasises proportionality of legitimate aim
Do you agree with the Norwegian decision?

Do you think the treatment of Breivik, in particular his degree of isolation, reaches the minimum level of severity required for a breach of Article 3?

Did the decision go too far and risk the general progression of human rights?
1. Cumulative effect of surrounding circumstances
Conditions of detention
Vulnerability of prisoner
Duration of confinement
Recommendations
Universal abolition of solitary confinement
If no abolition, then only to be used:
in exceptional circumstances
for no longer than 15 days
with strict safeguards
Three main concepts identified from ECtHR jurisprudence:
1. Cumulative effect of surrounding circumstances

2. Degree of isolation

3. Legitimate objective
How did the Oslo court apply the 3 concepts:
cumulative factors
degree of isolation
legitimate aim

What did the court decide?

Norwegian Court emphasised:
duration of solitary confinement
insufficient justification for whether solitary confinement is necessary
not enough regard to mental health when making the decision to put him in solitary confinement
Minimum level of severity
Duration
Physical conditions
Effects on mental & physical health
Degree of isolation

Legitimate justification
Insufficient consideration of security justifications
Compare with Sanchez case

Public Opinion
Breivik is an exceptional case
Does human rights protection go too far?
Solitary confinement will amount to a breach of Article 3 ECHR where it is:
continuous
routine
indiscriminately applied
Consistent case law provides states with grounds for legitimate use of solitary confinement
Parameters of legitimate use remain undefined
Given inherent harms, can there ever be a legitimate justification for total social isolation?
Questions to consider...
Full transcript