Otillbörlig brottsprovokation och principen om fri bevisprövning
Sammanfattning: In order to combat serious crime, Swedish authorities implement provocative actions, including entrapment. Undue entrapment means that someone is provoked to commit a crime that he or she would not otherwise have committed. This is currently prohibited, both under Swedish law and under the European Convention on Human Rights (ECHR). The purpose of the prohibition of such entrapment is to protect the individual's fundamental rights and freedoms. Earlier, Swedish courts have considered the occurrence of undue entrapment in the judicial process only if they were clearly undue. In 1995, the European Convention was incorporated into Swedish law. The Convention sets out certain minimum standards which the Contracting States have to observe. Article 6 of the Convention states that everyone has the right to a fair trial. The provision refers to the entire procedure, including how evidence against the accused have been accessed. The European Court of Human Rights (ECtHR) has previously expressed that issues regarding admissibility of evidence is a matter of national concern. Therefore, the Court looks to the trial as a whole when it has to decide whether the right to a fair trial has been violated. Thus, a State can allow all evidence it deems appropriate, provided that the State compensates for this in the trial, so that the trial as a whole seems fair. In Sweden there is free sifting of evidence, which means that all relevant evidence can be presented before a court, including evidence obtained by an undue entrapment. However, ECtHR has set up requirements regarding how Contracting States shall take into account the existence of an undue entrapment in a subsequent trial. In the case Teixeira de Castro of 1998, the Court stated that a public interest in investigating crime can not justify that evidence derived from police entrapment were used. As a result of this, the Surpreme Court of Sweden left prosecution without approval regarding provoked offence of handling stolen goods in NJA 2007 s. 1037. The last known judgment from ECtHR regarding entrapment is Furcht against Germany. In this decision from 2015 the Court stated that all evidence obtained through an undue entrapment has to be inadmissible or excluded. These decisions appear to state the limit for when the rules of evidence ceases to be a national concern, and that limit is reached at undue entrapment. According to this, an exception to the Swedish principle of free sifting of evidence seems to emerge, at least as regards undue entrapment.
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