Rättssäkerhet vs. effektivitet - En rättsvetenskaplig studie om det föreslagna kronvittnessystemet och förhållandet mellan effektivitet kontra rättssäkerhet i domstolsprocessen

Detta är en Kandidat-uppsats från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: The following essay investigates the proposed crown witness legislation, by initially describing the applicable law and the concrete law proposal, in order to answer the purpose of the essay. To give the reader a greater understanding of why a crown witness system hasn’t previously been established, the essay describes how mitigation of punishment has been developed in Swedish law, and how crown witnesses have been mentioned in connection to this. The essay finds that the current mitigation system has its beginning in a law reform that came into force in 1989, and that the next major change took place in 2015 when a new basis of mitigation was established, for participation in the investigation of one’s own crime. As far as crown witnesses are concerned, this has been discussed several times in various reports, both in a briefly manner but also with greater focus sometimes. Eventually, this led to an investigation in which crown witnesses were investigated on its own, instead of being discussed in connection with other matters. The inquiry finds that a new basis for mitigation of punishment should be introduced for participation in the investigation of someone else’s crime as part of countermeasures to serious, organized crime and to increase prosecution. The prosecutor and the defendant shall be given an opportunity to cooperate, and if the information meets a certain criteria, the prosecutor is to form an opinion about the size of the mitigation of punishment and send a sanction proposal along with the lawsuit to the court. This is only the prosecutor’s assessment of the matter, and the court should not be bound by this. Most of the referral bodies supported the proposal, mainly due to the efficiency the proposal entails, but the essay also describes some of the referral bodies who disapproved of the proposal and the arguments made against such a system. The essay then describes how the implementation of a crown witness system has taken place in Norway, so that the reader can get a better understanding of how it would theoretically work in Sweden. The analysis part of the essay discusses whether the proposal can be considered legally secure and compatible with several legal procedural principles. The essay finds that it is possible to argue that the proposal is well-balanced and that it should not conflict with legal security, and that it is in line with practice from the European Court of Justice. However, the unregulated application of the system in the proposal risks creating inconsistent and unpredictable practice, where equal treatment is also disregarded, as well as legal security. Finally, the essay discusses whether efficiency considerations should take precedence, and if the proposal’s contradiction to some of these principles impedes the introduction of the legislation. Due to how the Swedish democracy is built and the rule of law, the essay finds that it is too dangerous to override the rule of law and legal security to achieve a more effective prosecution system. Therefore, the proposal should not be introduced with regard to the risks and to protect the Swedish legal process and the rights of the defendants.

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