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behind the news

Explainer: how the Norwegian courts operate

Why do officials shake hands with the accused? What is a lay judge?

THE VERY PUBLIC trial of self-confessed mass murderer Anders Behring Breivik has brought up many questions about how the criminal justice system in Norway operates.

What is a lay judge? Why did court officials shake the hands of a man who has admitted to killing 77 innocent people? Why is the maximum sentence only 21 years?

Here, answers the queries that have been raised during the first two days of what has been described as Norway’s trial of the century.

Is there a jury in the Breivik trial?

No. There is a five-judge panel but this includes three lay judges, who are members of the public. Criminal cases in district courts are always decided by either a guilty plea or by a mixed panel.

In ordinary criminal cases, the District Court sits as a mixed panel of one professional and two lay judges. In lengthy or other special cases, such as the Breivik trial, the court is allowed to be “extended” to a five-member panel.

The two professional judges – Wenche Elizabeth Arntzen and Arne Lyng – will take the lead in the courtroom over the next 10 weeks.

However, the professional judges and the lay judges participate on an equal basis with regard to the question of guilt and the sentencing.

What is a lay judge?

Norway says the lay judge system ensures that citizens who do not have a law qualification also play a key role in Norwegian “juris-prudence”. The system was started about 100 years ago “provide a corrective counterbalance against official power and the establishment”.

The idea of being judged by one’s peers is upheld as a central principle in the criminal justice system.

…Independent citizens, by acting as lay members of the judiciary and by sitting on juries, should use their common sense and good judgement to determine questions of guilt and innocence.

Lay judges are selected by municipal councils for four years at a time. Anyone between the ages of 21 and 70 selected is obliged to accept the office with only a few exemptions offered to judges, police officers, prosecutors, employees of the courts and those in ill-health.

It was one of the lay judges (non-professionals), Thomas Indreboe, who was removed from the bench this morning after it was discovered that he wrote messages about the trial on a website, claiming that death penalty was the only outcome for this case.

He was replaced by one of the reserve magistrates and no real delay to the proceedings was incurred.

Does Norway even have the death penalty?

No. Although it was only officially abolished in 1979, the last execution in peacetime was back in 1876. In fact, the country’s penal system is based on rehabilitation and its maximum sentence is just 21 years.

However, that does not mean Breivik will walk free by 2033. If he is found to be clinically insane, he can be held in psychiatric care for life and if he is found criminally guilty, the sentence can be extended (by five years at a time) if a parole board believes he still poses a threat to society.

The court explains:

A sentence of permanent detention can be imposed if there is considerable danger of repetition. Permanent detention is not subject to any timeframe. However, the court always fixes a timeframe that may not exceed 21 years. When the timeframe expires the offender may be re-assessed. If the court concludes that there is still a danger of repetition the timeframe may be extended by up to five years at a time. There is no upper limit to the number of times that the court may extend the timeframe. In principle, a person that is sentenced to permanent detention can remain in prison for the rest of his or her life.

Who is defending Breivik?

Photograph: Heiko Junge/AP

The accused has four counsel, led by Geir Lippestad (pictured here).

There are two public prosecutors, Inga Bejer Engh and Svein Holden, working with three co-ordinating counsel for the aggrieved parties (victims). Both Engh and Holden are employed by the Oslo Public Prosecutor’s Office.

The role of the legal counsel for the aggrieved parties is to protect the rights of the deceased and the bereaved. Altogether there are 162 legal counsel for the victims. Their three co-ordinating counsel, Mette Yvonne Larsen, Frode Elgesem and Siv Hallgren, present in court for the main hearing and have to prepare reports for all the other lawyers each day.

Why did some of the court staff shake hands with the accused?

The courtesy extended to the 33-year-old killer in court yesterday surprised many people and raised eyebrows in other countries. However, in the Norway court is was deemed neither normal or abnormal.

The Guardian’s Helen Pidd offered the following explanation:

Various colleagues and Tweeters have asked why Breivik shook hands with court staff when he arrived in court for the first day of his trial yesterday. I checked with a judicial press officer and she said there is no convention – “what he did was neither normal nor abnormal”. No one had to shake his hand. But the judicial authorities have have been at pains to treat Breivik’s trial as a normal trial as much as possible. Even though Breivik has admitted the killings, he is pleading not guilty, on the grounds of “necessity”. And in Norway, as in Britain and beyond, the accused is innocent until proven otherwise. So to refuse to shake Breivik’s hand could have been seen to be not affording him the respect given to other “normal” defendants.

Why broadcast some of the trial but not all of it?

Although Norway’s system prides itself on equality and fairness, the courts wish to prevent giving Breivik a platform to express his far-Right extremist views.

He was given 30 minutes to read a statement this morning but this was not aired across any television station or the official live stream. The judge asked him to stop speaking when his time was up but he continued to read well past the half-hour limit, according to reports.

There are 190 places in the courtroom which were reserved for reporters and and victims, including families of the deceased and survivors. About 2,500 people are watching the proceedings from special broadcasts in 17 local courts around the country.

Tweeting from the courtroom has been permitted for the duration of the trial.

Survivors have implemented their own system of restrictions, with some wearing badges to indicate whether they are open to approaches from journalists.

If he has already confessed, why the trial?

The judges’ main job is to determine if Breivik is sane and accountable for his actions or clinically insane. That will determine if he is held in psychiatric care or sentenced to prison.

Norway’s political system is also keen to offer the same treatment to Breivik as it would to any other person charged with a crime. Many of the victims’ families are also searching for answers for what happened on the 22 July 2011.

Over the next five days, the accused will give his testimony and there will be a detailed run-through of the events of the day that has terrorised the Norwegian population. A schedule for the rest of the 10-week trial can be found here.

Forensic psychiatry evidence will be heard from the 18 to the 20 June with closing arguments provisionally planned for 21 and 22 June.

But what is this self-defence plea all about?

Some clarification has been offered on this by court translators on Tuesday. The official Oslo court Twitter account warned journalists that the term ‘self-defence’ is a misleading translation. A better word is ‘necessity’, it said, because Brevik is referring to a clause about defence of property and others (against multiculturalism and Muslims) in his plea.

Section 47 of the Penal Code offers an explanation of his plea:

No person may be punished for any act that he has committed in order to save someone’s person or property from an otherwise unavoidable danger when the circumstances justified him in regarding this danger as particularly significant in relation to the damage that might be caused by his act.

The courtroom looks pretty new?

That’s because it is. The Oslo District Court built the new, custom-made room just for Breivik’s trial. It also spent millions refurbishing two floors to allow extra people into the courthouse to follow the trial.

A bulletproof screen has been added to offer extra protection to Breivik. Armed police officers also stand guard outside the entrance to the courthouse.

How do the judges come to a verdict?

After the main hearing, judges withdraw to decide the case. The majority rules if there is not a unanimous verdict. As we said earlier, the judges' votes have the same weighting, regardless if they are professional or lay members of the bench.

Can any verdict be appealed by Breivik?

Judgements of the Oslo District Court may be appealed to the Borgarting Court of Appeal within two weeks of the initial decision. The appeal may concern the question of guilt, the sentencing, procedural errors or the application of the law.

An appeal to the court of appeals cannot usually be denied in a case which involves a sentence of more than six years.

Read's full coverage of the Breivik Trial>

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