Lek inte med rätten! - En studie av lekmannadomare i Sverige, Japan och Tyskland

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

Sammanfattning: Lay judges is an old phenomenon in many parts of the world. There is a long history of people without a legal education that have been participating in court as judges in Europe. In Sweden, such judges are called nämndemän and they work together with legally trained judges in the low and high courts of Sweden. In recent years these politically appointed nämndemän and their system have been subject to some criticism for being biased, incompetent and non-representative. This paper also examines Germany and Japan, two countries that have lay judges in a similar way. Germany had a jury system until 1924 and in about the same time period Japan introduced a jurisdiction system that would quickly turn out to be a failure. Both countries came to abolish their respective lay judge system during World War II, but while Germany re-established Schöffen in 1950 it would take another fifty years before Japan reintroduced lay judges, who are now called saiban-in. This essay will focus on how the lay judge systems work in the countries in question. The author compares the appointment of lay judges, their use, their composition, assignments and current discussions regarding the lay judges. As for the appointment of lay judges, there are more similarities than differences between Sweden and Germany. Both countries apply elections in the municipal council every four or five years to appoint lay judges. The biggest difference between the countries in this matter is that in Sweden only political parties can nominate nämndemän, while others can nominate the German Schöffen, such as voluntary organizations and individuals. Japan has a different procedure where the drawing of lots has a decisive role in the selection of the saiban. Unlike the other countries in this paper, this procedure is repeated before each individual trial. Another difference is what kind of trials the lay judge should participate in. In Sweden they participate in those criminal cases where there is an expected penalty of more than six months of imprisonment. In Germany there is a requirement of two years of imprisonment, while in Japan it is enough that only judges take care of the trial except if the crime is particularly serious, such as murder and the like. The basis of the assignment is very similar in all countries. The lay judges shall, together with the law judges, decide on if the defendant is guilty and if so what punishment is suitable. However, the composition of the court varies and in Japan the laymen are usually six, while the Swedish and German lay judges are two or three. Something that, according to the author, positively distinguishes the Swedish nämndemän from their counterparts in Japan and Germany is that they not only receive daily allowance but also emolument. Furthermore, there is a right for Swedish judges, both lay and professionals, to write separate or dissenting opinion, which is not allowed in any of the other countries. The author states that these two aspects give the layman a greater incentive to take the assignment more seriously and think of their role as highly meaningful. Despite this there is a great deal of dissatisfaction with the nämndemän system and the criticism is harsher in Sweden than in both Japan and Germany. However, abolition does not seem to be in question in the near future. Instead there may be reasons to look at what can be changed to make the Swedish system more expedient. The author recommends reducing the political connection so that more groups than only political parties can nominate nämndemän. Furthermore, it is proposed to increase the professional judge’s jurisdiction and that only two nämndemän are required in the district court (tingsrätt) and the abolition of nämndemän in the court of appeal (hovrätt). This would reduce the need for nämndemän, which would lead to that only the most suitable would be chosen for the task. Finally, the author recommends shorter terms and an upper age limit so that a wider group in society, especially younger but also people that are more competent, is attracted to serving as nämndemän and in this way Sweden can get lay judges that are relevant, competent and representative of Swedish society.

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