Lika allvarliga mord - olika straff? - En studie av betydelsen av gärningens relativa svårhet vid omvandling av fängelse på livstid

Sammanfattning: Since the passing of the Act (2006:45) on conversion of life imprisonment (omvandlingslagen), prisoners serving life sentences can apply for conversion from a life sentence to a fixed sentence. The petitions for conversion are adjudicated by Örebro district court. The majority of individuals serving life imprisonment in Sweden are convicted of murder. The increase of the severity of the penalty for murder in 2020, implying that more cases of murder will lead to life imprisonment, will therefore have a direct effect on the decisions on conversion. As a result of the increase of severity of the penalty for murder, more criminal acts, with various degrees of severity, will lead to life imprisonment. The purpose of the essay is to examine how the severity of the criminal act effects the length of the fixed sentence that prisoners with life sentences in practice has to serve. The method used in the essay is the traditional legal dogmatic method, meaning the traditional sources of law are examined to determine the law. The essay also consists of a case study, where the decisions on conversion from 2019 and 2020 are examined. The analysis is based on the theories of the rule of law. The rule of law is in this essay used by its traditional meaning – that decisions based on law has to be predictable. When the court is preforming the meting out of punishment, the point of departure is the penal value of the criminal act. Penal value can be described as a measurement of the severity of a criminal act. When the penal value of the criminal act is the point of departure for the sentence, the penalty is determined according to the principle of proportionality. If the court finds that the penal value of the criminal act is life imprisonment, there is no possibility for the court to decide how long the execution of the sentence will be. Instead, this is decided in the assessment of conversion by Örebro district court, after the convicted has served at least ten years of the sentence. Örebro district court is to consider the time the convicted has served, the conditions from the sentence that were the basis for the meting out of punishment, whether there is a risk of recidivism into serious crime, if the prisoner has neglected the rules in terms of execution and if the prisoner has participated in promoting his or her reintegration into society. Out of the five criteria, only the criteria that regards the conditions from the sentence is assignable to the severity of the criminal act. The risk of recidivism is further viewed as an unreserved ground to reject the petition for conversion, and is therefore crucial for the courts assessment. Out of the 58 decisions on conversion made in 2019 and 2020, 40 were refused on the basis that the risk of recidivism was concrete and considerable. The conclusion drawn by the case study is that the assessments regarding the penal value made by Örebro district court are blunt and that the conditions to make a nuanced assessment are not ideal. In practice, the penal value is consistently determined to be 21 or 24 years in prison or, in very severe cases (for example if the convicted individual has committed multiple murders), a longer prison sentence. Another conclusion from the study is that the decisions on conversion often result in a longer prison sentence than what the penal value would suggest. In summary, the severity of the criminal act has some impact on the fixed sentence that the convicted in practice has to serve, but the severity is not the only criteria that effects the punishment. Therefore, the impact the severity of the criminal act has on the fixed sentence varies greatly. Finally, the essay concludes that the assessments of conversion are not sufficiently predictable because of the following reasons: (1) The convicted individual does not know the sentence he or she is to serve until Örebro district court has approved the apply for conversion. (2) The assessment of the penal value of the criminal act is made many years after the sentence, by another court and based on second hand information. (3) The meting out of punishment is based on criteria with no connection to the criminal act, and (4) the validity of the assessment of the risk of recidivism is questionable. Accordingly, the application of the law is not sufficiently predictable and equivalent cases are not treated equally.