Insanity Defense - Scandinavia

Scandinavia

In Scandinavia, insanity is not a defense; instead, it is the responsibility of the court system as such to consider whether the accused may have been psychotic or suffering from other severe mental defects when perpetrating the criminal act. This explains why, in Norway, the court considered the sanity of Anders Behring Breivik, even if he himself declared to be sane.

Rules differ between Scandinavian countries.

In Sweden, psychotic perpetrators are seen as accountable, but the sanction is to forensic mental care.

In Denmark and Norway, psychotic perpetrators are declared guilty, but not punished. Instead of prison, they are sentenced to mandatory treatment. Still, important differences exist between Norway and Denmark.

In Norway, §44 of the penal code states specifically that "a person who at the time of the crime was insane or unconscious is not punished". The use of the word 'psychotic' is the reason why Anders Behring Breivik would automatically have been given a treatment order by the court, if the (very unusual) second psychiatric report had been in concordance with the first report.

In Denmark, §16 of the penal code states that "Persons, who, at the time of the act, were irresponsible owing to mental illness or similar conditions or to a pronounced mental deficiency, are not punishable". This means that in Denmark, 'insanity' is a legal term rather than a medical term and that the court retains the authority to decide whether an accused person is irresponsible or not.

In Finland, punishments can only be administered if the accused is compos mentis, of sound mind; not if the accused is insane (syyntakeeton, literally "unable to guarantee guilt"). The definition of insanity is similar to the M'Naught criterion above: "the accused is insane, if during the act, due to a mental illness, profound mental retardation or a severe disruption of mental health or consciousness, he cannot understand the actual nature of his act or its illegality, or that his ability to control his behavior is critically weakened". If an accused is suspected to be insane, the court must consult the National Institute for Health and Welfare (THL), which is obliged to place the accused in involuntary commitment if he is found insane. The offender receives no judicial punishment; he becomes a patient under the jurisdiction of THL, and must be released immediately once the conditions of involuntary commitment are no longer fulfilled.