Den provocerades straffrättsliga ansvar vid provokativa åtgärder - En studie i ljuset av Europadomstolens praxis

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

Sammanfattning: The use of entrapment within the law enforcement in Sweden is not a new phenomenon. Despite this, the legal position was not established concerning the use of entrapment and the criminal consequences for a long time. There are two types of entrapment, inducing someone to commit a crime and inducing someone to expose evidence of an earlier or ongoing crime. These two types have no legal definitions in statutory law, why it is often hard to separate them only by their definitions. In general, it is often considered prohibited to induce someone committing a crime, while it is permitted inducing someone to expose evidence. However, to distinguish the types in this way is not sufficient. Instead, the decisive factor whether the entrapment is permitted or not is how it has been carried out in the particular case. For a long time, Swedish courts have been reluctant to remark the entrapment during the meting out of punishment. Though, because of the precedents from the European Court of Human Rights the view of the matter has changed, and Swedish courts are obliged to remark if the entrapment has led to a violation of article 6 ECHR and the right to a fair trial. The thesis therefore examines how Swedish law deal with the criminal liability of a person who is subject to the different types of entrapment in the light of the lack of a clear distinction between the two. Furthermore, it examines how this distinction corresponds to article 6 ECHR. In this matter it has been shown that judgments from Swedish courts regarding the criminal liability is entirely based on the precedents of the European Court of Human Rights. Regarding the entrapment of inducing someone to commit a crime the most important judgment is Teixeira de Castro v. Portugal. Later judgments have repeatedly referred to this. A great matter for the assessment of the criminal liability is whether the provocateur has actively induced or otherwise incited the person to commit a crime, or if the provocateur only acted in a passive matter without influence. Therefore, the question to be answered is if the crime would have been committed if the entrapment never took place. Beside the entrapped evidence the court has stated that there need to be other evidence in the trial and the entrapment procedure must be strictly documented. If the court in the light of all considerations concludes that the crime would not have occurred without the entrapment the result is that the suspect right from the outset has definitely been deprived of a fair trial, meaning there is a breach of article 6. With the judgment NJA 2007 s. 1037 the Swedish legal position was changed as the Supreme Court interpreted the precedents of the European Court of Human Rights as domestic courts must be able to disrupt a trial and leave the prosecution without approval if the right to a fair trial has been effectively undermined. That means that the presence of entrapment is treated as the requisites to hold the prosecuted responsible is not attained. In case the entrapment is less severe and therefore not effectively undermines the right to a fair trial, there may still be grounds for considering the entrapment as a mitigating circumstance which could lead to a remission of sanction. Swedish precedents are at large consistent with the ones of the European Court of Human Rights when it comes to the other type of entrapment, concerning inducement to expose evidence. The decisive factor for the legal consequences of such entrapment is how it has been carried out and whether the evidence was obtained in an extremely undue manner. If so, it has been shown that also this type of entrapment can lead to a breach of article 6 ECHR. The fundamental circumstance to the assessment of whether the evidence was obtained in an extremely undue manner is the voluntary nature of the information provided. Thus, the suspect must not have been in a particularly stressful situation where he has suffered serious pressure from the provocateur. Lastly it is concluded that entrapment in many cases includes elements of both types, why the boundary of what constitutes one or the other is often hard to draw. Therefore, to determine the permissibility, it is not the designation of the method that is essential. The decisive factor is how the entrapment was actually carried out in the individual case.

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