Notorietet – en rättsosäker gråzon? - Om rättens hantering av notoriska fakta med hjälp av materiell processledning och ordböcker i ljuset av Snippadomen

Sammanfattning: In the so-called Snippa verdict, the Court of Appeal for Western Sweden acquitted the defendant of the charge of child rape, due to the judges’ uncertainty of the victim’s use of the word “snippa”. The Court of Appeal had not discussed the meaning of the word with the parties during the trial and ultimately relied on a dictionary definition to determine the meaning of the word, which did not support the claim that the defendant had penetrated the victim’s genitals. The Snippa verdict thus raised questions about the court's use and managing of Swedish words and concepts, which are considered notorious facts. This essay aims to investigate how the court in criminal cases can manage and use notorious facts and whether the court can use dictionaries to inter-pret the parties' procedural material. Of particular relevance to the purpose of this essay, is the investigation of how the court can exercise material direction of proceedings and how the use of notorious facts relates to the rights of the defendant under the ECHR. Notorious facts are exempt from the general rules of evidence as well as the principles of immediateness and adversarial proceedings. Consequently, the parties do not have to present evidence of such facts and the court is free to base its judgement on such facts without them occurring during the trial. However, it is not always obvious what constitutes a notorious fact as the notoriety is partly dependent on external circumstances. The court is obliged to exercise material direction of proceedings when a case requires it, which is why the court in some cases needs to exercise material direction of proceedings when there is uncertainty about a notorious fact. Based on Article 6 ECHR, the court has an obligation to ensure a fair trial for the defendant. The article requires the court to act impartially, which limits the court's ability to exercise material direction of proceedings in certain cases. Furthermore, the article makes the principle of adversarial proceedings particularly extensive, which is why all notorious facts are not exempt from the principle. The essay concludes that, as a starting point, the court has extensive scope, through material direction of proceedings, both to ascertain the notoriety of a particular fact and to raise awareness of a notorious fact during the trial. Thereby, the parties are made aware of the existence of the fact and are given the opportunity to comment on the fact. Furthermore, the investigation shows that the court's scope for action is limited by Article 6 of the ECHR, but also that the article imposes contradictory requirements on the court. On the one hand, the court needs to raise relevant facts with the par-ties so that the defendant can adequately defend themselves and comment on the material on which the court subsequently bases its judgment. On the other hand, the court needs to maintain its impartiality and thus must act in a way that does not allow the defendant to suspect that the court is acting in favour of the prosecution. The essay further concludes that the court's use of ordinary language and dictionaries is established in Swedish law, but that the court to some extent should use other procedural material as interpretative data. Furthermore, the essay shows that the court should be able to refrain from using ordinary language and dictionaries as the last alternative for interpretation in some cases, since such an interpretation may not always be considered reasonable due to the context of the word. Finally, the essay shows that when ordi-nary language is nevertheless considered to be an appropriate last alterna-tive for interpretation, the court should use more than one dictionary to ensure a more reasoned interpretation.