Föreningsfriheten – En undersökning om förslaget att kriminalisera deltagande i kriminella gäng och dess förenlighet med föreningsfriheten

Sammanfattning: During the 2022 elections, there were some political issues that interested the Swedish people more than others. Criminal policy was one such issue and received a lot of attention in the debates. Parliamentary parties stated that organized gang crime is one of the biggest societal problems facing Sweden today. After the elections, a political agreement was reached, the so-called Tidöavtalet. The agreement proposes that participation in criminal gangs should be punishable. One reason why such a proposal has previously met opposition in Sweden has been that such provision could restrict constitutionally protected rights, such as freedom of association. Based on a legal-dogmatic approach, this paper analyses Tidöavtalet´s reform proposal regarding the criminalization of participation in criminal gangs and its compatibility with freedom of association. The essay problematizes the proposal from a legal perspective, in view of the difficulties in the field of freedom of association that may be involved in its transposition. The reasons for and against the introduction of such criminalization are also discussed. Freedom of association enjoys strong protection and the possibilities for restrictions are few under the current rules. The rules ensure far-reaching freedom of expression, which obliges the state to ensure that individuals can exercise their rights without hindrance. An analysis based on the Swedish Constitution and the ECHR shows that the proposal restricts the protection of freedom of association. It’s likely that the proposal doesn’t fall within the scope of existing restrictions in the Swedish Constitution. Reasons for and against the introduction of the proposal are presented from the perspective that a constitutional amendment will be required. The arguments consist largely of considerations of proportionality and whether the need to introduce such a criminal provision is sufficiently great to amend the Constitution.