Kan brottsprovokation bli rättvist? - En studie om hur de nationella domstolarna bör hantera brottsprovokation för att inte kränka art. 6 EKMR

Sammanfattning: The purpose of this essay is to clarify how the use of police incitement should be handled in the national courts to avoid violating article 6 in the European convention on human rights (ECHR) that ensures the right to a fair trial. The examination is based on doctrine and a case study, starting with the case Teixeira de Castro v. Portugal. In this judgement the European Court of Human Rights (The European Court) explained that the public interest of investigating a crime never could justify the use of evidence obtained by police incitement. The judgement was followed by a discussion about how police incitement should be defined and how it should be handled in court. The Swedish professor Petter Asp addresses this subject in his book from 2001, he presents two methods that could be used to decide if the police behavior should be defined as police incitement. The European Court have done some clarifications in their later judgements. The court uses the substantive test of incitement to investigate if the crime should have been committed even without the provocation. The court have also clarified that if police incitement could be proven, the national courts have an obligation to take necessary measures. This can be done by excluding all the evidence from the police incitement, or a method that leads to the same result. For some time, the German court and professor Asp interpreted this to mean that compensation in form of reduction of punishment was possible. In 2014 the European Court came whit a clarification that not even a considerable mitigation of the provoked sentence can be seen as a method whit the same result as excluding the evidence. The conclusion that can be made from this is, that the use of evidence obtained by police incitement leads to a violation of art. 6 ECHR. This solution works bad in the Swedish legal system due to the principle about free use of evidence (den fria bevisföringens princip), wherefore the Swedish Supreme Court made a wider conclusion and said that there is a violation of art. 6 ECHR when the prosecution starts.