Brottslighetens art- Artbrottets vara eller icke vara

Sammanfattning: This paper touches the subject of crimes with a presumtion for imprisonment (will be referred to with the Swedish term artbrott) and the problems relating to it. The artbrott regulation is found in BrB 30th chapter 4§ and is used by the court when deciding upon a custodial sentence. Artbrott is used mainly when the law regulates a penal value under 12 months, and the perpetrators actions motivate its use. The term artbrott appeared in Swedish law through the penal reform in 1989 replacing § 7 of chapter 1 in the previous BrB. Crimes where the court needs to consider artbrott are treated slightly different concerning the choice of sentence. The main rule in 30:4 p. 1 states that the court shall chose a non-custodial sentence. Artbrott is an exception from the main rule. Crimes that fall within the scope of 30:4 are for example perjury, drunk driving and obstruction of the course of justice. An exhaustive list of artbrott is not possible since the court has the ability to create new ones. The last crime to be named an artbrott was organized pickpocketing. The artbrott regulation receives a lot of critisism from jurists because of its indecisive nature, it is hard to justify some crimes falling within the regulation and others falling outside of it. The artbrott regulation is also critisized from a fairness perspective, because it leads to crimes with the same penal value being punished unequally. Critics mean that this is a breach of the principle of proportionality. The system of artbrott is not likely to be replaced because, as this paper will show, there is a lack of alternative methods.