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Política criminal y libertad

Marcela Gutiérrez Quevedo
Thomas Mathiesen
Dan Kaminski
et al.

The rule of law under pressure

Thomas Mathiesen

Texte intégral


1In my talk, I will discuss “the rule of law”, which I think is under pressure in Europe and the United States, and also elsewhere in the worid, including Colombia and other Latin-American states. I will deal with two aspects of this, the surveillance systems and the prisons. I will deal with these aspects, beginning with the surveillance systems. But first this:

2By “the rule of law” I mean four things. Firstly, I mean that decisions are grounded in law. Secondly, I mean that “laws” are decided by a democratically elected parliament, with several parties with varying opinions involved. But thirdly, decision-making is not necessarily grounded directly in democratically decided law, but frequently indirectly, by legal delegation.

3The last of the three points, that decision-making is based on legal delegation, they are based on law decided by Parilament but then delegated to others, is crucial in the general area of criminal justice. Let me give you a quick example.

4Recently, news came up in Norway to the effect that within a month, 33 million telephone calls where Norwegians had been on the phone, had recently been monitored, surveilled, by the United States.

5This particular news probably turned out to be wrong. I say “probably”, because I am not yet quite convinced. Glenn Greenwald, the journalist of brought the whole Snowdon affair to the front pages of major newspapers around the would, disagrees, and thinks that the United States’ nsa has interpreted the relevant documents quite differently, he says. What had happened according to the Norwegian interpretstion was probably that 33 million telephone calls outside of Norway, not involving Norwegians, had been monitored by Norwegian authorities - in Afghganistan. This was immediately reported by the Norwegian surveillance authorities, who had precisely that - they had an authority which was delegated to them by law.

6There are several committees appointed by the Norwegian Parliament whose main job it is to see to it that surveillance authorities and others stay within the boundaries of authority which they have been given through legal delegation. Asked by Norwegian television how they could be so sure that the surveillance authorities said the truth, the chairwoman of the parliamentary committee in question replied that the committee could of course not control everything, but they controlled test cases, and that it was a matter trust.

7And there we are. The rule of law is grounded in law which in the last instance is decided by a democratically elected parliament, but very frequently involves authority by delegation rather than directly by law, and is controlled by parliamentarians or others through test cases and trust. The rule of law is under pressure when the authority is given by delegation is stretched or shady, and in turn is controlled by weak or few test cases and by doubtful trust. Even Norway, often called “a high trust country”, has a culture of trust which is partly doubtful.

8There is also a fourth criterion at stake. This is predictability. Decisions must be predictable to those subject to them. Even if the three first criteria — decisions are based on law, decided in a democratic setting, and legal delegation which is honest and truthful, decisions may not be predictable to people or a population. That is a scary possibility. This often seems to be the case in connection with European surveillance, in contrast to surveillance from the us, which, as far as I can see, has problems also with the other criteria of the rule of law.

9Much more could be said about these concepts, but time prevents me from going deeper into them. They should be kept in mind throughout my talk.


10Information during the last months from the United States and England, and also from other states, about information gathering and surveillance on a global scale, is greatly worrying.

11As far as I know, it all began in the British newspaper The Guardian. The paper got access to a document which demanded, from one of the largest telecompanies in the us, Verizon, that they were to supply the nsa (the us National Security Agency) with information on all telephone calls in the system except. Apparently, content of the calls, according to criteria which resemble those of the European Data Retention Directive, are excluded, but I don’t know if I fully believe that. It continued with the discovery of “Prism”, the large surveillance program in the nsa which has surveyed foreigners through a number of large information systems such as Google, Windows, YouTube and the like. This Skype conference is in itself probably surveyed. The last piece of news is that 35 foreign state leaders, many in Europe, have been surveilled. The German Chancellor Angela Merkel is apparently among them. The Germans are particularly angry, and a German delegation of high-ranking bureaucrats have apparently gone to the United States to meet with

12us counterparts. President Obama maintains that the German chancellor is not monitored now, which implies that she may have been monitored earlier.

13The us has called David Snowden’s warnings treason. In Great Britain various steps have been taken against the Guardian. The head editor and journalists have been under fire. Four large Nordic newspapers (from Norway, Sweden, Denmark and Finland) have protested against “London’s dangerous crusade against a free press”, as Norwegian Aftenposten called it in an Editorial 26 August 2013. The Law Faculty of the University of Oslo, I might add, has recently proposed to bestow an honorary doctor degree to the Head Editor of the Guardian. We will soon see of the top of the University pyramid dares to follow up. Snowden, who warned against the surveillance in the mass media, has sought asylum in other countries and has received temporary asylum for one year in Russia.


  • 2 Thomas Mathiesen. Towards a Surveillant Society. The Rise of Surveillance Systems in Europe, Waters (...)

14All of this is well known. In terms of format it must be the greatest surveillance scandal the world has seen. It is a serious eye-opener of a sleeping and half sleeping public. But in terms of type of surveillance, which involves extensive use of the Internet and electronic traces for surveillance purposes, nothing is actually new. In Europe, the us, China and elsewhere, in states with a rule of law and in states without It, developments and implementation of a whole range of surveillance systems have been going on to gain information and knowledge of large population groups or whole nations. Let me mention Europe only, because in the light of what has been exposed in the us, we are made to believe that Europe is as clean as a newborn baby. Europe is not clean as a newborn baby. In my book on European surveillance systems, called Towards a Surveillant Society, which appeared in England, in English, with Waterside Press a few weeks ago2. I counted no Iess than between 12 to 14 large surveillance systems or enacted principies of surveillance in Europe. Just a few words about the most important of them are in order:

15Schengen Information System, abbreviated sis. Is a vast system for screenimg amd shutting out unwanted aliens from outside the eu. Schengen information System II is an advanced and costly screening system of persons taking i. a. in biometric data on the individual level. The Sirene System, abbreviation for Supplementary Information Request at National Entries, consists of centralized police unit in each of the 29 Schengen states, exchanging Information between each other across borders. Vis – Visa Information System - is a data base which contains information, also biometric data, from nationals of third countries who require visas and who wish to enter the Schengen territory. The Europol computer Systems has three data systems - firstly a central information system containing standardized and less standardized information about convicts, suspects and “not-yet-but-soon-to-be-suspects (Statewatch Analysis 2007); secondly a series of extremely encompassing work files containing thousands or tens of thousands of people assembled for special purposes and large groups of people; and thirdly an index system to find one’s way through this mass of information. The work files are extremely important. In 2004 Europol operated 18 or 19 files. The Eurodac System is an automated finger print system containing fingerprints of all asylum seekers over 14 years of age. It enables countries to identify asylum applicants and persons who have been apprehended in connection with “an irregular crossing” of an external border of the union. The pnr – The Passenger Name Record collects data given by all travelers on all flights crossing the border (or near the border) of us territory. An accord with the eu was entered in 2012, the eu also has accords with Canada and Australia. A proposal is being developed on a New pnr System,

16also between the eu states, which has been called the eu pnr. There is even discussion of a pnr for trains and boats, so that in the final analysis only those who walk or bicycle remain unregistered. The Data Retention Directive tells of a system containing extremely detailed information on all citizens of a country for a long time - up to two years - concerning all telephone calls, all emails, Internet usages and the like. After a Parliamentary debate, Norway decided to take part, and participates and plans implementation. The Hague Program is based on the so-called “principle of availability” – that all data/intelligence held by a law enforcement agency in one state should be available to every other agency in the eu. The program contains a supranational plan to make relevant intelligence data available, in principle, to all members of the European Union - easy to access and use across borders in the Union. It is a principle to be followed wherever and whenever possible within the union. The Prüm Accord, which Norway now is a part of, is an extremely good example of a system for reciprocal communication. It deals with reciprocal communication of dna-tests and other information between various eu states, and is based on the principle of reciprocal exchange of information between the various states of Europe, containing, mind you, numerous possibilities of erroneous registrations. The Swedish fra System (abbreviation of Forsvarets Radioanstalt; The Radio system of the Defence) registers all emails which cross Swedish borders – also Norwegian emails, because Norwegian emails frequently pass through Sweden.

Of little help

17And so on. This long series of short sentences could have been made even longer. The main purpose of the systems is the struggle against terrorism. In my book Towards a Surveillant Society, I have been able to go in much more detail. The first point is that the many systems help us little in catching terrorists before they have committed their acts of terror. Afterwards they may possibly be of some help, but not before the fact, even if this is the main purpose. Progressively, terrorism is becoming a phenomenon undertaken by loosely integrated individual people, “lone wolves”, who know how to defend themselves. The other main point is that many others, who have no thoughts or plans of terrorist acts, ordinary human beings like you and I, who constitute the great majority, are easily caught by the systems. The searchlight of suspicion is placed on the many, and the great surveillance systems become a threat to personal and legal security.


18Note, as an introduction here, that there are vast differences between Colombia. Where you are from, and Norway, where I come from. I have recently learned that you have over 250 prisoners per 100,000 population, higher than any of the main European states, whereas Norway has a little over 70 prisoners per 100,000. On the average all your cells are filled by numerous prisoners, 4/6 prisoners on the average, whereas in Norway the doubling of cells is exceptional. You have leaves for your prisoners, but we have more leaves, more open prisons. But it is important for me to emphasize that even if our prison system is smaller and more humane, and that is an important thing, the rule of law is under pressure also with us. The rule of law is under pressure because this is inherent in prison, regardless of size and humanitarian conditions. That’s a very important point. In numerous countries prisons seem to thrive, more of them are built, and they are filled with ever-larger numbers of prisoners, without our understanding why.

  • 3 David Scott, (ed.). Why Prison?, Cambridge University Press, 2013.

19The increase in the number of prisoners takes with a few exceptions place in Europe, North America and other Westernized countries like Australia and New Zealand (and other places). The exceptions in Western Europe are Finland and perhaps Germany. In a book entitled Why Prison?3, which came earlier this year, the editor, David Scott, has shown the figures. In 1970 the us had a larger number of prisoners than any other of the I2 Westernized countries which were counted in - 166 prisoners per 100,000 inhabitants. All of the other countries, except Finland, had less than 100 per 100,000. In 2010 this picture had changed dramatically. The us was still the highest, with 748 prisoners per 100,000. The term “mass imprisonment” had been invented In Finland the number of prisoners went down. It was probably caused by changed legislation. Germany showed a relatively stable number of prisoners, a little over or a little under 90 prisoners per 100,000 inhabitants between 1970 and 2010. All other countries showed a smaller or ereater increase. Six of the 12 countries had 100 prisoners per 100,000 inhabitants, 5 of these 6 countries showed 133 prisoners per 100,000. Norway showed an increase from 44 prisoners per 100,000 in 1970 to 73 per 100,000 in 2010.


20The change in Norway is not among the greatest. But it was hardly caused by a comparable increase in registered crime. This has been convincingly shown by Stian Lid and Rein Jone Steine in Samfunnsspeilet (a journal for the Statistical Bureau) n.º 5-6 for 2011. They have this to say:

  • 4 Stian Lid & Lone Steine Rein, In Samfunnsspeilet (a journal from the Statistical Bureau), n.° 5-6, (...)

After 2000 it has altogether been a substantial decrease in registered crime, and we probably must go more than 20 years back to find less crime than we have today. [...] There was the greatest increase during the 1980s, a time when registered theft and other property crimes increased a great deal. [...] Afterwards the total number reported crime has become far smaller, and if we consider population growth, the extent today is on the same level as during the middle of the 1990s.4

21A Police Report which was published as part of the aftermath of Bering Breivik’s mass murder (nou 2013: 9) in 2011, emphasized roughly the same. Under the headline “Crime has fallen” the Police report said:

Crime generally is falling, and measured in terms of number of reported crimes per 1000 inhabitants it has gone measurably down. [During prior years there was an increase, but between 2002 and 2011 there was a downward trend, and] the number of crimes was reduced by 24%. For misdemeanors during the same period the reduction is 10%.

22The Bureau of Statistics also has information on different reported crimes, which show variations but altogether a downward trend. The most important trend to the opposite are sexual crimes, which show an increase.


23The long term trends in crime are significant for the problem at hand. The statistical trends may be caused by various factors- e.g. legal changes, varying control activities on the part of the authorities and the culture of reporting among the public. But If we permit ourselves to look at the various types of crime together, and on the basis of long term statistical trends, there is at least not an unambiguous relationship between criminal behaviour in society and prison figures: Criminal behavior has largely been stable or gone noticeably down during the later years. The main exception In Norway is sexual crimes. The stable or downwards trend may be found also in several other countries, notably in the us and Great Britain.

24The prison figures, on the other hand, have gone unambiguously and steadily up per 100,000 population - also in Norway, from 57 in 2000 via 68 in 2005 to 73 in 2010. You could perhaps say that a clear positive relationship – the more crime, the more people in prison - would be in accordance with our image of a rule of law. We do not find such a positive relationship, with the exception of sexual crimes.


  • 5 David Scott, (ed.). Why Prison?, op. cit., p. 69.

25Why, then, the increase in prison figures? For Norway you cannot disregard that the increase in sexual crimes has had its effect. Neither can you disregard that complicated, modern, boundary transgressing crimes and the influx of prisoners from other countries have been important and have had their effect. The above mentioned report from the Norwegian police points to some of this5.

  • 6 David Scott, (ed.). Why Prison?, op. cit., p. 72.

26I doubt, however, that the report when using such factors can explain the increase in prison numbers which we also find in Norway. The report says that while the proportion of prisoners who are foreigners (including remand) has almost doubled between 2006 and 2012, from 17 to 32%, the proportion of Norwegians is at the same time reduced from 83 to 68% (again including remand). The proportion of inmates from other countries is in the Police Report subsequently coupled with what is called “mobile property crimes”, and the Report explicitly says that “[t]here are great variations in the degree of professionalism and organization among mobile criminals”6. We have to assume that the majority of prisoners from abroad have committed crimes which are, relatively speaking, not so serious. The Police Report says, in more detail, that it is “difficult to document the development of organized crime through the statistics of crime. At the same time: Economic crime and crimes against the environment involve sizeable values, but also constitute “a small proportion of reported crime”.

27Briefly stated: Crime which is organized according to specific criteria certainly exists, and most probably threaten central values, but is probably to a large extent a growing myth as far as the number of people is concerned in our society.

28At any rate, many of the figures I have referred to point in another or even an opposite direction, towards a notion that serious crime does not contribute so much to the rising prison figures. I present a hypothesis that stricter punishments are introduced which produces slower circulation in our prisons and for that reason more prisoners per 100,000 at any given time.

29The fact that the public sphere does contain radically different images of crime in our society, and that an increase in serious crime is to a large extent behind the growing prison figures we see today, is to a large extent due to the dramatized priorities of the media and the politicians, which are partly quite different, and differently motivated, compared with the story told by the figures referred to aboye.


  • 7 See, though, Thomas Mathiesen, Silently Silenced, Waterside Press, 2004.

30The Rule of Law is, in other words, being challenged on several scores. Are protests in the making? Largely not. A few stand up and argue, but they are largely kept quiet by suave and refined methods going beyond the scope of this paper7, and the consequence is silence. People ought to be worried, but they are not. Most people are fairly satisfied and go about their own business.

31This is a dangerous situation. It may be said that we are still governed by a Rule of Law in Norway. But when basic principles are beginning to vacillate, and in fact do so to a larger extent in large parts of the Western world, we may, perhaps without knowing it, quietly move into a new way of looking at things which neither was nor is ours.



Lid, Stian and Rein Lone Steine. In Samfunnsspeilet (a journal from the Statistical Bureau), n.° 5-6, 2011.

Mathiesen, Thomas. Silently Silenced, Waterside Press, 2004.

Mathiesen, Thomas. Towards a Surveillant Society. The Rise of Surveillance Systems in Europe, Waterside Press, 2013.

Scott, David. (ed.). Why Prison?, Cambridge University Press, 2013.


2 Thomas Mathiesen. Towards a Surveillant Society. The Rise of Surveillance Systems in Europe, Waterside Press, 2013.

3 David Scott, (ed.). Why Prison?, Cambridge University Press, 2013.

4 Stian Lid & Lone Steine Rein, In Samfunnsspeilet (a journal from the Statistical Bureau), n.° 5-6, 2011.

5 David Scott, (ed.). Why Prison?, op. cit., p. 69.

6 David Scott, (ed.). Why Prison?, op. cit., p. 72.

7 See, though, Thomas Mathiesen, Silently Silenced, Waterside Press, 2004.


Professor of sociology of law, University of Oslo.

© Universidad externado de Colombia, 2014

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