Artbrott: enhetligt oenhetligt? - Om underrätternas artbrottsbedömningar vid nya brott

Sammanfattning: Swedish penal law prescribes a presumption against the use of prison as a sentence, and it should therefore only be used as a last resort. Three circumstances can break the presumption: the penal value, recidivism and, lastly, if the offence is of such a nature that there is a presumption of imprisonment. The last of the three will from here on be referred to by its Swedish name ‘artbrott’. ‘Artbrott’ is commonly understood as offences that should be met with a severe sanction due to general prevention. Which crimes may constitute ‘artbrott’ and when and why some offences may motivate a prison sentence are not regulated by law. The interpretation has instead mainly arisen through case law. The system is therefore criticised for being unclear and not foreseeable. This paper explores the regulation and adjudication of ‘artbrott’ to find out if it complies with the rule of law. It questions and answers how the Swedish district courts use the term in their judgements and how the regulation can be analysed based on the rule of law. Verdicts by Swedish district courts are analysed in purpose to examine how they decide their sentences. The study specifically examines cases that concern newly passed offences, for which no case law yet has been established. The paper also presents a recitation of relevant principles and theories of penal law and the regulation of sentencing. It is concluded that the application of ‘artbrott’ has several non-uniform aspects. The study shows, among other things, which circumstances are considered differ amongst judgements. It also seems that some of the conditions considered are related to the penal value rather than general prevention. The application of law also appears to be non-uniform concerning the courts’ ability to expand the application of ‘artbrott’ to new crimes without precedents. The uncertainness of the interpretation can lead to uncertainty in the sentencing and is particularly worrisome due to a threshold effect. The whole disfavour of ‘artbrott’ can be questioned due to the ineffectiveness of general prevention. Overall, the ambiguity of ‘artbrott’ constitutes a problem concerning the rule of law.