Ett förändrat rättsläge avseende straffansvar vid tillfällig sinnesförvirring - En analys av hur NJA 2020 s 169 påverkat efterföljande rättstillämpning

Sammanfattning: Ever since the Penal Code was established in Sweden there has been uncertainties regarding how to try liability when a crime is committed during a state of temporary insanity. Does an unwritten rule of exception, which discharges from liability, exist? In a case named ‘Vanföreställningen’ the Supreme Court answered the question negative. The Supreme Court stated that the current legal position does not support an application of an unwritten rule to exempt a defendant who commits a crime during a state of temporary insanity. The Supreme Court argued that it could not answer the question differently without interfering with the legislator’s work. The Swedish regulation does not include rules regarding accountability. Accountability means the capacity to be responsible. A mental disorder is considered during the sentencing matter but there are no special rules to exempt the defendant from liability. Unless (or until) the legislator chooses to reform the Swedish system the question of liability needs to be settled by applying the regular rules about criminal intent. The defendant in ‘Vanföreställningen’ got a verdict of acquittal. According to the Supreme Court, he was not conscious enough to have committed his crime with intent. A sufficient level of consciousness is necessary to act intentionally and get convicted. The purpose of the thesis is to examine the consequences of ‘Vanföreställningen’ in the following adjudication. The purpose is also to critically analyze the legal position after ‘Vanföreställningen’ based on the principle of guilt. The principle of guilt means that only a person who has the power to control his actions should be held accountable for committing a crime. To determine how ‘Vanföreställningen’ has affected Swedish law I study court practice, legislative history and legal literature. Then I examine how ‘Vanföreställningen’ are interpreted and applied by the Swedish district courts. An empirical study of 31 district court verdicts is made. The results of the empirical study imply that the unwritten rule of exception now is replaced with a profound adjudication of the defendant’s level of consciousness. 20 percent of the 31 district court verdicts are a verdict of not guilty. The percentage is relatively high. According to me, this indicates an improved compliance with the principle of guilt after ‘Vanföreställningen’. This improvement is happening despite the fact that the Supreme Court in ‘Vanföreställningen’ established that a lack of consciousness will only occur regarding defendants who are in a peculiarly severe level of confusion. I think the main reason behind the high percentage of acquittals is a consequence of a finally clarified legal position regarding liability during states of temporary insanity. Even though an unwritten rule as an excusing condition is dismissed, the district courts now know how to adjudicate a temporary insane defendant. ‘Vanföreställningen’ contains a new definition concerning which kind of conditions constitute an insufficient level of consciousness. The definition is very close to the condition that is referred to in the regulation about the imprisonment prohibition. In Sweden, a defendant with a mental disorder normally get a guilty verdict. The mental disorder is considered in the sentencing matter by for example mental health treatment and an imprisonment prohibition. The results of the empirical study indicate that temporary insanity now is considered also when deciding the defendant’s liability. Instead of getting a conviction but not be allowed to serve an imprisonment sentence, a defendant with a temporary insanity after ‘Vanföreställningen’ can receive a verdict of acquittal due to lack of consciousness. This, as well as the high percentage of acquittals, means an improved compliance with the principle of guilt after ‘Vanföreställningen’. At the same time, there is a risk that the function of the imprisonment prohibition undermines. Except the new definition’s similarity with the imprisonment prohibition, it is also very similar with the definition of defendants who, before the Penal Code, were considered not to have accountability. With this in mind, I claim that ‘Vanföreställningen’ means a possibility to decide whether a person have the capacity to be responsible or not. With the principle of guilt in consideration the change is greeted. Without interfering with the legislator’s work, the Supreme Court’s ruling means at least a slight possibility to settle a case based on the defendant’s accountability.