Otillåtet åtkommen bevisning - en analys av den straffprocessuella hanteringen och upprätthållandet av mänskliga rättigheter

Sammanfattning: In most democratic countries, the citizens are granted freedoms and rights through the country’s constitution. This regulates and limits the state’s exercise of power over the citizens and sets the frame for the criminal law. In Sweden the principle of free evaluation of evidence is detrimental to the law of evidence, meaning that there are no specific laws regulating the evidence used in a trial, nor how the court should value that evidence. The goverment’s interest in crime preventing sometimes results in evidence being gathered through methods that violate a person’s rights. In the essay, the relationship between the free evaluation of evidence and the protection of rights is investigated. National law is presented in relation to the treatment of illegally obtained evidence with regards to those criteria that are set in ECHR article 6 right to a fair trial. By applying comparative aspects to constitutionalism, protection of rights and law of evidence, national law is put in a context that lays the foundation for a valuation of how satisfying the law is from the aspect of protecting the individual’s rights. The basis of the analysis is the discussion whether the criminal procedure should act in the interest of combatting crime or legal certainty. The essay shows that Sweden’s comparatively small constitutionalism combined with the free evaluation of evidence has negative consequences for the protection of rights in the criminal procedure. The author concludes that the Swedish function of the criminal procedure is to combat crime when it comes to how illegally obtained evidence is treated. Since the protection of rights is constitutionally based, the author argues that the current system is not satisfactory and that a regulation regarding the treatment of illegally obtained evidence should be established to the Swedish legal system in favor of the interest of legal certainty.