A Fair and Public Trial for the Norwegian Terror Suspect

In the aftermath of the two horrendous terror attacks in Norway, many people questioned whether the first hearing of Anders Behring Breivik, where he was charged with terrorist crimes, should be held in public. Although the suspect has confessed to the attacks, he denied criminal responsibility through pleading not guilty. This has led others to question if a public trial is necessary at all. Some argue that a self-confessed terrorist should not be given a public platform to spread his violent extremist ideology; Others stress that for reasons of public order and/or security, the hearing – and perhaps even part of the trial itself – should be held behind closed-doors.

This current discussion in Norway is important, because historically both the state as well as defendants have used different trial strategies to convey their narrative with regard to terrorist crimes. For instance, by seeking the death penalty, the alleged mastermind of 9/11 Khalid Sheikh Mohammed may very well aspire to become a martyr, whereas the United States of America, through trying him by a military commission, communicates that this form of justice is part of the "War on Terror" paradigm. In the end, the presiding Norwegian judge decided that the first hearing of the terror suspect would take place behind closed-doors.

However, the very fact that a press conference was issued almost directly after the arraignment reflects the careful balance the judge has to strike between on the one hand public interest and on the other hand the right to a fair trial. Paradoxically, through this press conference , where a statement of Breivik was read, the terror suspect was able to spread his political message. He claims he wants to save Norway and Western Europe from cultural Marxism and Muslim domination, hence succeeding in using the trial as a public stage. He sees himself as a warrior and had requested to wear some sort of uniform at the first hearing – a request that was not granted. This element of show suggests that, in addition to publishing his Manifesto on the internet, he wants to politicise the trial and raise more awareness for his extremist ideology.

At the same time, the Norwegian presiding judge and later on the suspect’s lawyers also communicated their narrative with regard to the arraignment. The judge’s statement was aimed at globally spreading the message that Norway respects the rule of law as well as basic fair trial standards. Even though under article 6 of the European Convention on Human Rights "the press and public may be excluded (…) in the interests of morals, public order or national security in a democratic society", the judge might have deemed it necessary to emphasise his independence and impartiality at the press conference after the closed-doors hearing. Breivik’s lawyer stated that he wants to defend Anders Behring Breivik because he supports democracy. Last but not the least, since Norway has lay participation in its criminal proceedings, members of the public will be engaged, regardless of whether the trial is public or not. A concern however might be how to select lay judges, and perhaps on appeal the 10 jurors, who are able to review the facts of this terrorism case without having certain pre-conceived notions.

At the moment, it appears that the state, embodied by the public prosecutor, requested the hearing – and subsequently perhaps also (parts) of the trial itself – to be held behind closed-doors. This decision is understandable from the perspective that it may prevent the trial turning into a public stage for Breivik and protect public order and security. However, the past has taught us that criminal proceedings against terror suspects that are closed to the public and the media run the risk of contributing to the (pre-existing) injustice narrative. Remember for instance the "faceless courts" during the Fujimori era in Peru. Not only can trials behind closed-doors breach the basic human rights standard of the right to a public and fair trial, but they may delegitimise and hinder counter-terrorism efforts as such. The lack of transparency could fuel public perceptions with regard to a bias of the judges or the suspected terrorist might turn into a mystical martyr. Hence, despite the aforementioned dilemmas, it would be wise to honour the terror suspect’s full right to a fair trial, which includes that it is held in public.