The penal codes of most Western countries allow for punishment to be adjusted according to the severity of the criminal act. In addition, the perpetrator's level of responsibility for their actions is usually considered. Other legal systems, such as the Sharia-based one of Iran, also make allowances for diminished responsibility.
In Breivik's case, there is no doubting the extreme severity of his criminal act. His killing of 77 people is the worst case of murder in Norway since World War II. The unanswered question is whether he can be held to account for a massacre to which he confesses.
Two psychiatric reports have come to conflicting conclusions as to whether Breivik was psychotic at the time of his action. The first set of experts believed he suffered from paranoid schizophrenia, yet the second report concluded that he showed no signs of psychosis.
Although Norwegian courts are able to disregard forensic psychiatry reports, in practice it is extremely rare for them to do so. And a quirk in Norway's penal code means that the question of psychosis is particularly important.
Psychological or medical
Criminal insanity in the penal code of countries such as the UK and US is based on the psychological principle. This means that, in Breivik's case, he would have to have carried out the killings specifically because of his psychosis in order to escape a jail term.
Because Breivik has stated that he was aware that what he was doing was illegal, if he were being tried in, for example, the UK he would be unlikely to escape punishment under these conditions.
The Norwegian legal system, however, is based on the medical principle. According to the 44th paragraph of Norway's penal code, simply being psychotic at the moment of action would automatically exempt Breivik from punishment. There is no need for his psychosis to be the direct cause for his actions.
Confusing to many Norwegians, this element of the law has been debated for years, with criticism increasing in the aftermath of the 22 July 2011 attacks. » | Liss Goril Anda | Norwegian Journalist | Friday, May 04, 2012
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