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Norway attacks: What happens if Breivik is deemed insane?

Anders Behring Breivik, who admitted to carrying out two attacks in Norway that killed 77 people, is to undergo psychiatric examination this week. If he is judged to be insane, he could avoid criminal prosecution.

By Correspondent / August 2, 2011

Norwegian Anders Behring Breivik (l.), the man accused of the bomb attack in Norway, sits in the rear of a vehicle as he is transported in a police convoy as he is leaving the courthouse in Oslo, Norway, in this July 25 photo.

Jon-Are Berg-Jacobsen/Aftenposten via Scanpix/Reuters

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Two Norwegian forensic psychiatrists are scheduled this week to start evaluating admitted Oslo attacker Anders Behring Breivik to determine if he is in fact insane.

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A confirmation of insanity by the experts Torgeir Husby and Synne Sørheim could send the case against Mr. Breivik in an entirely new direction. They have until Nov. 1 to complete their evaluation. If they deem him insane, and the judge concurs – he does not have to – Breivik would be sent to a medical institution. He would remain there until he is considered to no longer pose a threat to society.

Breivik's defense attorney has suggested his client is insane. But legal experts who have examined the case doubt that Breivik, a Norwegian from a middle-class Oslo neighborhood who shocked his nation by bombing government buildings and carrying out a shooting spree that killed 77 people on July 22, will be deemed mentally unsound.

“I don’t think he has been or is insane in the way we practice insanity in Norway,” says Kristian Andenæs, a criminal law professor at the University of Oslo. “In a way he is obviously insane, but not in the sense of criminal law.”

Under Norwegian law, a person who is considered psychotic cannot be punished regardless of whether the act is motivated by psychosis or whether he has done it deliberately, according to John Christian Elden, a prominent defense attorney at Norwegian law firm Elden. Other countries have systems that require that the action is motivated or justified by a psychosis before a person can be considered free of punishment. Moreover, Norway has an exception for psychosis caused by ingestion of drugs.

“From what has been discussed in the media, it seems less likely that he is entitled psychiatric psychosis,” says Mr. Elden. “[This is] assuming that this is an action that is planned for a long time without him having acted with psychotic symptoms that are captured by the outside world. At the same time, he is described as a normally quiet person with an ordinary upbringing and intelligence.”

“Experience, however, has shown it is difficult to predict what psychiatrists will conclude – often it is the opposite of what one might think,” he adds.

The number of successful insanity pleas in Norway is quite low. The country had 1,637 psychiatric reports related to court cases between 2005 and 2009, or less than 330 per year, says Mr. Andenæs. Of those, around 20-25 percent were found insane or for other reasons, such as mental retardation, not capable to stand trial. In 2009, there were only 17 verdicts on coercive psychiatric care and 16 on detention in prison with a maximum period.

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