Ung och dum - proportionerligt att ignorera? En analys av hur avskaffandet av ungdomsreduktionen för unga myndiga förhåller sig till proportionalitetsprincipen

Sammanfattning: Criminal law regarding offenders in the age group 18 to 20 years old, so called juvenile offenders, was changed extensively at the turn of the year. For a long time, Swedish juvenile offenders were subject to differential treatment due to their age, in the form of a reduced sentencing. Previous legislation meant that crimes committed before the age of 21 was to take the offender's young age into account. This resulted in a reduced sentencing, a so called “rebate” for juvenile offenders - a rebate that lessened the older the age of the juvenile. The primary reason for this different treatment was research regarding youth development, crime prevention and proportionality of punishment. As serious and deadly violence between gangs has increased, so has the debate on the existence of the rebate for juvenile offenders. The question was subject to governmental inquiries and in 2017 the government appointed a special inquiry, “Ungdomsreduktionsutredningen”, to inquire how the rebate could be abolished. More and more people have called for the rebate to be scrapped, and when the Swedish government introduced its 34-point program to combat gang violence in 2019, the government too called for it to be scrapped. By autumn 2021 the bill to abolish the rebate for juvenile offenders charged with committing serious crimes was put on the floor of the Swedish Parliament. As of the second of January 2022 the rebate for serious crimes committed by juvenile offenders has been abolished. The inquiry found that research regarding youth development did not support an abolishment of the rebate. Instead the government argued that the principle of proportionality was the reason for the change in legislation. The argument of the government was that the sentencing has to be in relation to the crime in accordance with the principle of proportionality, something which contradicts the existence of a rebate for juvenile offenders. The principle of proportionality is a core principle of the justice system and is of great importance for how punishment is to be handed out. The principle is mainly based on the idea that the reaction of the law is to be fair, and that a punishment is fair if it is proportionate to the seriousness of the crime. To discern the meaning of the principle of proportionality one finds the following aspects: proportionality and culpability, proportionality and level of repression and proportionality and societal conventions. Although the principle is quite complex, making the government's decision to use it as grounds for the change of legislation worthy of scrutiny. The purpose of this paper was thus to discuss how the new legislation relates to the principle of proportionality as well as examining how the legislation might be more compatible with the principle of proportionality than before, which was the intent of the government. The findings of this paper shows the following: how much influence different types of aspects of justice ought to have is constantly a question of demarcation, which in turn affects the meaning of the principle of proportionality. The paper also finds that the current legislation is more compatible with the principle compared with previous legislation, which is due to societal conventions seemingly being more influential than juvenile culpability in contemporary interpretation of the principle of proportionality.