Verdict and Sentence in the Anders Breivik Trial
(Oslo District Court, 2012)
Chief judge Wenche Elizabeth Arntzen
Oslo District Court (Oslo tingrett) – Judgment. The 22 July case.
Criminal law. Murder. Terror. Sanity. Preventive detention. The Penal Code section 147a first subsection paras. a and b, cf. the Penal Code sections 148 first subsection first penalty alternative and 233 first and second subsections, and 233 first and second subsections, cf. section 49, and the Penal Code section 147a first subsection para. b, cf. sections 233 first and second subsections, and 233 first and second subsections, cf. section 49. A man b. 1979 was sentenced to preventive detention for a term of twenty-one years and a minimum period of ten years for two terror acts by which among other things 77 people were killed. The defendant killed 8 people while 9 persons were seriously injured when he detonated a car bomb in the Government District in Oslo. The explosion also caused extensive material damage. The same day the perpetrator killed 69 people, of which the majority were participants at the Workers' Youth League (AUF)-run summer camp at Utøya Island. Most were killed by shooting or as a consequence thereof. In addition 33 youths were seriously injured. Besides the physical injuries a considerable number of people suffered mental aftereffects. The court found the defendant to be sane, i.e. not psychotic, at the time of crime, and was thereby liable to penalty. The defendant had acknowledged having committed the acts of which he was accused, pleaded not guilty to the charges. (Summary by Lovdata.)
District Court (Oslo tingrett) TOSLO–2011–188627–24E (11–188627MED–OTIR/05). The judgment has legal force. Parter: The Public prosecuting authority (Public Prosecutor Svein Holden, Public Prosecutor Inga Bejer Engh) vs. A (Advocate Geir Lippestad, Advocate Vibeke Hein Bæra, Advocate Tor Eskild Kvinge Jordet and Assistant Lawyer Odd Ivar Ausnes Grøn. Dommere: Presiding judge: District Court Judge Wenche Elizabeth Arntzen. Professional judge: District Court Judge Arne Lyng. Lay judges: Ernst Henning Eielsen, Diana Patricia Fynbo, Anne Elisabeth Wisløff.
Summary
The above review shows that we are faced with two teams of expert witnesses with qualitatively different diagnostic assessments of the defendant. Where the experts Husby and Sørheim find psychotic delusions, the experts Aspaas and Tørrissen find extreme political opinions, combined with conscious disregard for opposing views. The two teams of experts have consistently made different assessments of the general criteria of interest for schizophrenia in ICD-10, and on different grounds they have concluded that the defendant does not meet the criteria for paranoid psychosis.
Although none of the experts believe the defendant to be a borderline case, there seems to be agreement that he is “a special case”, as the experts Aspaas and Tørrissen write to conclude their supplementary report. The experts Husby and Sørheim touch upon similar ideas when they in connection with the danger assessment described the defendant's «uncommon symptom profile» with a combination of affective flattening, persistent homicidal thoughts, solid delusions of a right to select victims and kill, combined with the lack of any identifiable cognitive impairment and with no disturbing sensory delusions like hallucinosis.
The Court itself is struck by the defendant's wordy presentation of his fanatic far right extremist attitudes mixed with pretentious historical parallels and infantile symbolism. His conceptions are accompanied by an unfettered and cynical justification of the acts of violence as being «cruel, but necessary». A recurring question during the trial has furthermore been the importance of the reported acts for the diagnostication. However, as was pointed out during several of the testimonies given by the expert witnesses, glorification of violence or extreme acts of violence do not form part of the ICD-10 diagnostic criteria for psychosis.
Of all the health professionals that have assessed the defendant's mental health, it is only the experts Husby and Sørheim who have found psychosis. The Court has assessed the possibility of the defendant having being able to hide any psychotic symptoms by means of his cognitive functions. The evidence presented during the trial does however provide little support for such a possibility, which in any case would not explain why the health personnel providing treatment and advice at Ila did not find any psychotic symptoms before the first forensic psychiatric report was presented and the ban on media access was lifted. The Court believes that the diagnostic disagreement is mainly due to differing interpretations of similar observations; however with the added fact that the defendant gradually has moderated his statements from when the acts were committed and until the trial was concluded.
What distinguishes Husby and Sørheim's diagnostic interpretations from those of the others is primarily that they refrain from assessing the defendant's extreme statements and use of concepts in the light of the far right extremist subculture of which he claims to be apart. With respect to this, the Court makes reference to the comments to the general criteria for schizophrenia in the Green Book on page 65, where there is an express warning against “false positive assessments, especially where culturally or subculturally influenced modes of expression and behaviour or a subnormal level of intelligence, are involved.” Professor Malt stated that on a general basis, there is reluctance to diagnosing ideas concerning politics, religion and love. In addition, the interpretations of the experts Husby and Sørheim, as already mentioned by the Court, seem to be founded on an application of central fundamental criteria for schizophrenia that is not common in scientific or clinical practice.
Although the defendant is a special case, there is no basis in sources of law for departing from the recognised diagnostic criteria for psychosis. It falls outside the scope of the law's object of proof to decide whether the defendant's gruesome acts of terrorism have a more profound psychological cause. Any such causal relationships are not covered by a criteria-based diagnostic system and they thus fall outside of the mandate of the expert witnesses. On its part, the Court refrains from engaging in such assessments, which in any case would have to be speculative. The Court still assumes that the defendant's capacity to carry out the reported acts may partially be explained by a combination of fanatic rightwing extremist ideology, the intake of performance-enhancing substances and possible autosuggestion in combination with pathological or deviant personality traits.
Upon an overall assessment, the Court finds it has been proved beyond any reasonable doubt that the defendant was not psychotic at the time the crimes were committed, cf. the Penal Code, section 44. Consequently, the defendant shall be punished for his acts.
The fixing of the sentence
It is stated in the indictment that the prosecuting authority made the reservation that it might submit a plea for punishment. At the trial, the prosecutors submitted a petition in the alternative for preventive detention. The Court assumes that the defendant in these circumstances can be sentenced to punishment even though the prosecuting authority principally has brought proceedings pursuant to the Criminal Procedure Act, section 2 No. 1 concerning commitment to compulsory mental health care.
The defendant is criminally sane and shall be sentenced to punishment. In the case of a violation of the Penal Code, section 147a, the main rule of the Penal Code is that a prison sentence shall be imposed. The maximum sentence is 21 years of imprisonment. Imprisonment is a sentence for a specific term, where the person convicted shall be released when the specified time has been served.
When imprisonment is deemed to be insufficient to protect society, a sentence of preventive detention may be imposed instead of a sentence of imprisonment, cf. the introductory part of the Penal Code section 39c. In addition to the basic requirement concerning society's need for protection, the requirements in the said provision's no. 1 or no. 2 must be met.
It is alternative no. 1 that is of interest in the case at hand. This alternative requires a serious crime among those described therein to have been committed. In addition there must be an imminent risk that the offender will again commit such a serious crime. The risk of a repeat offence must be serious and real, and it is to be assessed on the basis of the situation at the time of the delivery of the judgment.
The Court is in no doubt that both requirements in section 39c no. 1 are fulfilled. The violation of the Penal Code section 147a by means of murder and attempted murder is among the crimes that can lead to a sentence of preventive detention. Furthermore, at the time of the delivery of the judgment there is an imminent risk that the defendant will commit new murders and serious acts of violence. The Court makes reference to the fact that the defendant believes that the murders at the Government District and at Utøya were legitimate acts, and that extreme violence is a necessary means to achieve his political goals. The defendant has in court also related his alternative plans, like blowing up the Royal Palace and newspaper editorial offices, and killing journalists at the SKUP conference.
The murders at the Government District, the murders at Utøya and the 26.09.2012 77 Utskrift fra Lovdata defendant's plans demonstrate the extreme violence he has the will and capacity to carry out. The defendant has furthermore stated that there will be more terror attacks; this is also written in his compendium. The thought of extreme violence and murder is evidently stimulating to the defendant. This was clearly seen in court when he described how he had planned to kill Gro Harlem Brundtland by decapitation. The defendant seemed excited during the description and gave the impression of enjoying telling about it. In its assessment of the danger, the Court has also attached importance to the defendant having demonstrated a capacity for planning the acts of terrorism without being discovered.
The Court also makes reference to the fact that the court-appointed expert witnesses Aspaas and Tørrissen on page 308 of their report conclude that there is a “high risk of serious acts of violence in the future,” and in connection with this they make reference to the defendant expressing that violence and terror are necessary to have his extreme political views prevail. The court-appointed expert witnesses Husby and Sørheim also concluded in their report that the risk of future violence was very high (page 241). When deciding what importance to attach to the assessment made by the latter experts, it must however be taken into consideration that their danger assessment is based on the precondition of psychotic delusions.
The basic requirement of protection of society is linked to the risk of a repeat offence, but when assessing the need for such protection the perspective must be turned towards the future, cf. Rettstidende [Norwegian Supreme Court Law Reports] 2007 page 187. There is no doubt that a sentence of imprisonment based on ordinary principles of sentencing in the case at hand would have been set at the maximum sentence under the law; 21 years of imprisonment.
The defendant has, after several years of planning, carried out a bomb attack aimed at the central government administration and thus also at the country's democratic institutions. He has killed 77 persons, most of whom were youths who were mercilessly shot face to face. The defendant subjected a large number of persons to acute mortal danger. Many of those affected have sustained considerable physical and/or psychological injuries. The bereaved and next of kin are left with unfathomable grief. The material damage is enormous. The cruelties of the defendant's acts are unparalleled in Norwegian history. [bold-face added]
It follows from the Supreme Court's practice that it takes a lot to assume that such a long sentence for a specific term is not considered sufficient to protect society against the danger a convicted person represents at the time of the delivery of the judgment, cf. Rettstidende [Norwegian Supreme Court Law Reports] 2003 page 1778 para. 19. Notwithstanding this, the Court is in no doubt that also the basic requirement for preventive detention is fulfilled in this special case.
If the defendant is to serve a 21-year prison sentence without release on probation, he will be 53 years old at the time of his release. Even though 21 years is a very long sentence, the Court finds it improbable that the element of time per se will reduce the risk of a repeat offence. At the time of release the democracy that the defendant wants to abolish, will still exist. Norway will still have inhabitants of different ethnic backgrounds, different cultures and different religions. The defendant expressed in court that he wants to continue his political struggle behind the prison walls. After having served his sentence, the defendant will most probably have the will and capacity to carry out many and very brutal murders.
The experts Aspaas and Tørrissen, who believe the defendant suffers from personality disorders, write on page 309 of their statement that “[t]he kind of personality pathology that has been found is not very accessible to therapy. Factors that worsen the prognosis of violence will be close contact with environments that acknowledge and support the observee's political ideology and views on political violence». The way the Court sees it, a similar prognosis must be assumed even if the defendant's personality were not to fulfil the fundamental diagnostic criteria for personality disorder, being rather the manifestation of deviant personality traits. This means that the defendant also after having served a 21-year prison sentence will be a very dangerous man. Against this background, the Court is of the view that the requirements for imposing a sentence of preventive detention are fulfilled, and thus believes that a sentence of preventive detention should be imposed. 26.09.2012 78 Utskrift fra Lovdata
A sentence of preventive detention can be imposed for a term that should not exceed 15 years and that cannot exceed 21 years, cf. the Penal Code section 39e. On application by the prosecuting authority, the Court may upon the expiry of the fixed term extend the preventive detention by 5 years at a time. The majority of the Parliament's Standing Committee on Justice stated in the Recommendation to the Odelsting No. 34 (1996–1997) page 22 that “a sentence imposing preventive detention shall not be for a shorter term than what the term of an unconditional prison sentence would be [...]”. The Court finds it clear that in the case at hand, a sentence of 21 years of preventive detention must be imposed. Considering the murders and attempted murders committed by the defendant, in conjunction with the risk of a repetition of such crimes, society must in the case at hand employ the maximum protection admitted under the law. When determining the sanction, no emphasis is given to the fact that the defendant has acknowledged having committed the criminal acts.
In addition to the maximum term, the Court is of the opinion that a minimum period must be determined. The significance of the minimum period is that a release on probation pursuant to the Penal Code, section 39f, cannot take place prior to its expiry. The minimum period cannot exceed ten years, cf. the Penal Code, section 39e second subsection. It follows from what is stated above concerning society's need for protection that the minimum period must be set to ten years.
Costs of the case
In their plea, in the alternative, for punishment, the prosecutors have not included a demand for costs to be imposed. Since the Court nonetheless may impose costs in case of a conviction, the Court shall briefly note that the defendant neither today nor in the future will have the financial capacity to pay costs. The Court makes reference to the presentation of his financial situation at the time of his arrest in point 3.2. After his arrest, the defendant has not had any income. The Court makes further reference to the fact that the defendant's serving of the sentence of preventive detention will severely limit his possibilities of income. Even if he were to receive income while serving his sentence, already claims against the defendant for reimbursement of compensations paid through the state compensation scheme for victims of violent crime will far exceed any such income. Consequently, costs are not imposed; cf. section 437 third subsection of the Criminal Procedure Act.
The judgment is unanimous.
Conclusion of the judgment
A, born *.*.1979, is sentenced for violation of the Penal Code section 147a first subsection paras. a) and b), cf. the Penal Code sections 148 first subsection first penalty alternative and 233 first and second subsections, and 233 first and second subsections, cf. section 49, and the Penal Code section 147a first subsection para. b), cf. sections 233 first and second subsections, and 233 first and second subsections, cf. section 49, all seen in conjunction with the Penal Code section 62, to preventive detention pursuant to the Penal Code section 39c no. 1, for a term of twentyone (21) years and a minimum period of ten (10) years, cf. the Penal Code section 39e first and second subsections. From the said term and the said minimum period there shall be a deduction of four hundred and forty-efive (445) days for time spent in custody.