"Inga kommentarer" är inget bevis på skuld - En analys av tillämpning av förklaringsbörda i brottmål och dess förhållande till tilltalades rätt till tystnad

Sammanfattning: Article 6 in the European Convention on Human Right provides that every person under the jurisdiction of a member state has the right to a fair trial. To the rights that follow in this respect are added, among other things, the presumption of innocence, which means that every person accused of a crime is assured to be considered innocent until proven guilty and his guilt legally establishes. The implementation of the presumption of innocence presupposes that the prosecutor bears the burden of proof, which has the consequence that the defendant has a right to remain completely passive in a criminal proceeding. Despite these legal principles, a legal figure has been developed and applied in practice, the so called burden of explanation. Burden of explanation means that an explanation is demanded by the defendant on which refusal or inability to provide a statement consequently places the defendant in charge of evidence. The court's legal right to apply an explanatory burden and consequently to impose silence on the negative evidentiary effect is supported in part by chapter 35 § 1 RB, according to which the right to freely evaluate evidence that has occurred in the case, partly in the evidence evaluation rule in chapter 35 § 4 RB, which emphasizes that the court shall examine the evidentiary effect that can be attributed to the fact that a defendant refuses to answer a question presented to the inquiry. A consequence of an explanatory burden imposed on the defendant may thus mean that he or she is punished for exercising his right to remain passive, even though there is no requirement for activity. However, there has been strong criticism in the legal literature against the application of a burden of explanation due to the fact that such a burden can result in relief of evidence for the prosecutor regarding the burden of proof and entail an illegal reversal of the burden of proof. In addition, it can be stated that the rate of experience that usually justifies the application of an explanatory burden is that innocents usually have no reason to refrain from making a statement and that such a failure therefore indicates guilt. It is according to this background that this presentation takes its starting point. The aim of the presentation is to examine how the burden of explanation can be perceived and handled from an evidentiary context. Thus, the aim is to create a better understanding of the legal figure that the burden of explanation entails and for which legal and practical effects the burden has. The presentation's case analysis shows examples of how the application of an explanatory burden can also lead to procedural shortcuts, despite the fact that the defendant's silence is not directly and explicitly given any evidential value. Due to the court's incomplete and concise reasons for judgment, it is a difficult task to establish an unitary and clear definition and methodology for when the burden of explanation may be applied or what actual significance it has for the defendant in terms of evidence. The uncertainty surrounding the content of the explanatory burden has a negative effect on legal certainty. In order for these principles of criminal procedure and the fundamental rights of the accused in the criminal proceedings not to be perceived as apparent, it is necessary for the court to apply the burden of explanation extremely restrictively.