Gränserna för otillåten missaktning - Förutsebarheten i rättsläget för hets mot folkgrupp

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: The aim of this paper is to evaluate the predictability of the Swedish law that prohibits the spreading of threats or disdain against certain groups of people, known as hets mot folkgrupp. While hate speech is a commonly used term for such phenomena, its use is not appropriate in this context because of its limited scope. Hets mot folkgrupp encompasses a broader variety of scenarios. Predictability is a core concept in the rule of law and encroachments in freedom of speech in particular require assurances of sufficient predictability. To fulfil this aim a judicial enquiry of the contents of hets mot folkgrupp is made. The results of this enquiry are analysed according to Åke Frändberg’s definitions of predictability. The paper does not deal with the special constitutional rules of Tryckfrihetsförordningen and Yttrandefrihetsgrundlagen, nor the rulings of the European Court of Human Rights. Through the study of the conventional sources of Swedish law, namely law, travaux préparatoires, court decisions and doctrine, their effect on the interpretation of the prerequisites of hets mot folkgrupp become apparent. The act of spreading is poorly defined, since the precise meaning of “more than a few” is unknown. Traditionally, threats or disdain – in practice it is almost exclusively disdain – have extensive interpretations. Unless parts of an objective and substantial discussion, offensive remarks are generally considered to be disdain. This changed when the Swedish Supreme Court acquitted a man from hets mot folkgrupp due to the ECHR, despite all prerequisites being fulfilled. Today the evaluation should be done in several steps. First of all, the presence of disdain and the absence of objective and substantial discussion should be established. After that it must be investigated whether or not this restriction on freedom of speech is proportional according to the ECHR. In this, the circumstances must be considered. If they are extenuating, the accused must, in some cases, be acquitted. More serious cases can still result in conviction. After this enquiry, where the effects of the ECHR are given plenty of attention, the contents and application of the law are analysed based on Frändberg’s three terms of predictability. Whether or not the predictability is satisfactory is assessed. The distinctness of the contents of the law is deemed unsatisfactory due to the unclear spreading prerequisite, whereas threats or disdain are given a passing grade. The accessibility of the law is considered satisfactory, but the application seems to be lacking. In conclusion, the predictability of hets mot folkgrupp is not considered to be satisfactory.

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