Universell jurisdiktion i Sverige - Om regelsystemet som möjliggör och begränsar utövning av universell jurisdiktion i svensk rätt

Sammanfattning: The principle of universality constitutes a basis for jurisdiction under Swedish law. At the end of 2022, the Supreme Court delivered a precedent- setting decision dealing with how universal jurisdiction should be interpreted according to Swedish law. The Supreme Court determined that for Swedish courts to exercise universal jurisdiction, there has to be a Swedish judicial interest, which is decided based, in this case, on the suspect's connection to Sweden. This differs from how the principle of universality previously has been applied by the courts. The decision has been criticized in doctrine for many reasons, and there seem to be divided opinions about how the principle of universality should be understood according to Swedish law. In light of this, this thesis aims to describe and problematize the rules that condition the exercise of universal jurisdiction under Swedish law. Various aspects of the scope of the provision and the legislator's intentions are examined with a legal analytical method. The thesis also discusses the assessments of the jurisdictional issue that are made during the criminal process and how acts taken throughout the criminal procedure are related to the jurisdiction of the court. The Supreme Court's decision, NJA 2022 s. 796, is used as part of the analysis to discuss whether the court's interpretation can be considered well founded having regard to the statutory text and the legislator's intentions. In addition, the thesis applies different arguments and views presented in international law doctrine to support the analysis. The study shows that the jurisdictional rule in Chapter 2 Section 3 p. 6 of the Criminal Code is based on a broad interpretation of the principle of universality, where the main limitation is the requirement of a positive authorization to prosecute. The legislator has chosen to refrain from conditioning the jurisdictional rule since the exercise of extraterritorial jurisdiction requires a balancing of interests that is both difficult to specify in law and inappropriate for a court to engage in when assessing its competence. The study also shows that the assessment of whether prosecution should be authorized comprises to some extent criteria that favour a Swedish judicial interest for prosecuting international crimes that the principle of universality encompasses. Furthermore, the issue of jurisdiction must be considered by prosecutors, the Prosecutor-General, and in some cases, the Government even before the court assesses its judicial competence. The jurisdictional issue does not, however, have to be settled for the prosecutor to be able to submit an indictment. In addition, the court is neither bound by the Prosecutor-General's nor the Government's assessment of the jurisdictional issue. The study also pinpoints ambiguities in whether criminal procedural measures that precede the trial – such as the submission of an indictment – are to be understood as an exercise of jurisdiction according to Swedish law. Finally, NJA 2022 s. 796 is questioned in light of Swedish law and international law arguments. The Supreme Court deviates from the system that prevails under Swedish law, for instance, by conditioning the jurisdictional provision that represents the principle of universality. The courts may, as a consequence, have to balance interests contrary to the legislator's aims. The fact that there always needs to be a Swedish judicial interest when prosecuting international crimes is also questioned.