OSLO DISTRICT COURT

COURT ORDER On 16.08.2011, court was adjourned in Oslo District Court. Case number:

11-129394ENE-OTIR/06

Judge:

District Court Judge Hugo Abelseth

Keeper of record:

The Judge

Regarding:

Request for closed doors

The Public Prosecuting Authority versus Anders Behring Breivik

born on 13.02.1979

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Translated by Inger-Johanne Bauer Government authorized translator Norwegian - English

Present: The Judge only. The judge had the case documents.

The court issued the following

co urt order:

The request and the processing Oslo Police District has in its letter dated 16.08.2011 requested for the court session set for 19.08.2011 at 1300 hrs to be held behind closed doors. It has been requested that the decision be met prior to the court session. At the session, the question to be processed is whether the accused, Anders Behring Breivik, will still be subjected to solitary confinement.

A request for closing may be handled in the judge’s chambers prior to the court session, cf. Bøhn: Domstolloven [The Act relating to the courts of justice], Commentary edition, page 377. The court regards it as expedient to issue such an interlocutory order in the chambers.

As follows in the letter from the prosecuting authority, the defence counsels to the accused and the counsels to the aggrieved parties have been notified of the request.

Pursuant to the law, the public, including the press, does not have any right to comment when it is to be decided whether a case will be heard behind closed doors, cf. Bøhn: Domstolloven, Commentary edition, page 378 with reference to NOU [Official Norwegian Report] 1988:2 page 49. In the booklet Dommerne og mediene [The Judges and the media], published by the Norwegian Judges Association in 2006, page 16, it is nevertheless stated: The committee recommends that the judges give the present journalists the opportunity to comment on the question of whether the doors should be closed, before the question to hear the case behind closed doors is deliberated behind closed doors.

The comment appears only to consider the situation where a request for closed doors is processed in conjunction with the court session in question. The recommendation of the Judges Association appears impracticable when the decision is to be made in the judge’s chambers prior to the court session.

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On 15.08.2011 it was publicly known that the remand hearing is to be held on 19.08.2011 and that the police will present a request for a court order of closed doors prior to the hearing to be issued by the District Court in the course of 17.08.2011. Certain parts of the press have thereby on their own initiative chosen to offer comments to the request for closed doors, so that the court in making its decision has been able to consider the views presented.

The arguments The prosecuting authority has in its request for closing the doors stated that so far, more than 350 statements have been taken, and a number of items have been confiscated from the personal belongings of the accused and that extensive video materials from downtown Oslo have been obtained. It is furthermore stated that the accused himself says that he was alone in the two acts of terror, and that it is essential for the police to verify all the information he has provided so far, in nearly 60 hours of police interviews. The Police fear that if the accused has the possibility to communicate with others, he would also have the opportunity to communicate with any possible assistants. Reference is also made to what the accused has said about there being two other “cells” in Norway, without wanting to state any names for who are behind these.

The court has not received any written comments from the defence counsels, but the court believes that the accused would like an open hearing, as he stated during the remand hearing on 25.07.2011.

Organs of the press who have commented have argued that the court session should be public. They have referred to inter alia that very serious crimes have been committed, making it utterly necessary for the press to have access to how the police as well as the courts are handling the case. It has also been pointed out that the attacks have great general public interest – in Norway as well as internationally.

Furthermore, they point to the possibility that there may be possible assistants has been considerably diminished over the past weeks, and referring to that at any rate there will be a ban on taking notes from the remand hearing. This and the press’ own Code of Ethics, the “Vær Varsom” [Be Careful] poster, will ward off any concern that the accused would have the opportunity to spread any “unwanted” messages to the public.

It is also referred to that the security situation is changed after the court hearing on 25.07.2011 and that there are far fewer foreign journalists present in Norway now, so that a remand hearing may be conducted in an ordinary manner at Oslo Courthouse. It has also been pointed out that should security -3-

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concerns be an issue, the court may rule to have a “partial closing” allowing only the representatives of the press to be present.

The remarks of the Court The main rule is that a court session should be public, i.e. that anybody who wants, may be present during the hearing, cf. the Act relating to the courts of justice, Section 124. In the letter from the prosecuting authority, reference is made to the Act relating to the courts of justice, Section 125, 1st subsection, letter c, as the legal grounds for requesting closed doors. Pursuant to this provision, the court may decide for a court session to be held behind closed doors “when particular circumstances give cause to fear that keeping it public would complicate the full clarification of the case, making it required to keep the doors closed”.

In order for closing to be considered as “required”, there must be concrete and particular circumstances giving cause to fear that it would otherwise be difficult to sufficiently clarify the case, cf. Rt-1990-743 [Norwegian Law Reports]. The court finds, based on the request, that the police have not yet got to the bottom of the question of whether the accused may have had assistants in the two terror attacks and that the police keep this open. In a case such as this one, the court understands that the police will need time to verify the information of the accused stating that he has acted by himself. The police have so far collected an extensive investigation material. In this context, we also refer to the statement of the accused himself that there be two other “cells” in Norway.

The request for closing especially raises the question whether there is reason to fear that an open court session would imply that information from the investigation would reach any possible assistants and that such information would damage the investigation targeted at such individuals. The court finds that the prosecuting authority envisions that such information may be given during the court session on 19.08.2011.

If a court session is public, in principle this makes it possible for anybody to be present. This would to a great extent bring about the situation that the police have pointed out as problematic. The court is thereby of the opinion that it is necessary for the court session to be held behind closed doors.

The court has considered in particular whether the press should still be permitted to attend the court session, cf. the Act relating to the courts of justice, Section 127, first sentence (on partial closing). In this context, it is of importance that there be a ban on taking notes, cf. the Act relating to the courts of justice, Section 129. The court has especially addressed the question of partial closing with the -4-

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prosecuting authority. The prosecuting authority has commented on this in an e-mail dated 16.08.2011 and has objected to it.

The prosecuting authority has stated among other things that they consider it feasible for the press to have access to the court sessions at a later stage in the investigations, but that they at any rate will object to it at the present time, barely three weeks into an extensive investigation. It is also argued that in such a situation it would not be justifiable to trust in a ban on taking notes from a great press turnout, considering the risk that information that could potentially damage the investigation might come out.

Pursuant to the the Act relating to the courts of justice, Section 127, there must be particular reasons for anybody to be given access to a court session held behind closed doors. With this provision as a starting point, it must be assessed concretely whether the press should be permitted to be present. As the court sees it, such an arrangement is first and foremost relevant and adequate in the case of limited press participation. The court expects considerable press participation from Norwegian as well as foreign press if one opens for them to be present. The court thereby agrees with the prosecuting authority that in this particular case it is not justifiable to trust in a ban on taking notes to be sufficient. Consequently, the court concludes that no exception is to be made for the press.

CONCLUSION

The court session set for 19.08.2011 to process the police’s request for Anders Behring Breivik still to be held in solitary confinement, will be held behind closed doors.

Court adjourned

Hugo Abelseth

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Translated by Inger-Johanne Bauer Government authorized translator Norwegian - English