24 kap. 9 a § RB - Ett slag i luften eller en bestämmelse som förutspås förändra allt?

Sammanfattning: Directive 2012/13/EU on the right to information in criminal proceedings (the Directive) is part of a road map within EU to strengthen the protection of rights of suspects in criminal proceedings. Article 7.1 of the Directive was implemented in Swedish procedural legislation on June 1st 2014 through a new statutory provision in the Swedish Code of Judicial Procedure, 24 kap. 9 a §. According to Article 7.1 Member States are obliged to ensure that arrested or detained persons are granted access to documents that are related to the specific case in the possession of the competent authorities, which are essential for challenging effectively the lawfulness of the arrest or detention. The statutory protection of insight complements the right to freedom (Article 5) and the right to a fair trial (Article 6) in the European Convention of Human Rights (ECHR) and is a codification of European Court of Human Rights case law. The Swedish equivalent of Article 7.1, 24 kap. 9 a § RB, constitutes a right for persons who are arrested or detained to access evidence which underlies claims of deprivation of freedom.

The intention of this thesis is to highlight the regulatory framework for the implementation of EU directives and to emphasise on the protection of ECHR rights when public authorities execute its power by depriving people of their freedom. Further, the objective of the thesis is to examine if 24 kap. 9 a § RB is equivalent to the corresponding provision in the Directive. This thesis will furthermore analyse to what extent Swedish law fulfils its obligation to provide legislation which ensures accurate implementation of EU law and compliance with ECHR rights in the adjudication process, using the legal dogmatic method seen through an interest oriented and rule oriented perspective.

The evidentiary burden rests on the prosecutor at the detention hearing for proving the existence of reasonable grounds for the allegation, as well as for the risk of the suspect to continue his or her criminal activity, risk of tampering with evidence or risk of evasion. As long as any evidence from the investigation material is not used as ground for the Court's decision on detention, the prosecutor can withhold evidence from the suspect. The European Court of Human Rights has in its practices, however, stressed that there is no possibility for the accused to challenge the lawfulness of the arrest or detention if access to the investigation material is denied.

The conclusion that is drawn is that the right to insight as it is laid down the Swedish Code of Judicial Procedure is not unconditional, which means that the protection of rights in Article 7.1 in the Directive is undermined. Since the provisions of the Directive should correspond to the rights as guaranteed by ECHR, the law as expressed in the Swedish preliminary legislative work will conflict with EU law and fall below the standards provided by the ECHR as interpreted in the case law of the European Court of Human Rights. The accused must be given effective access to all the evidence available in the possession of the competent authorities in order for Swedish legislation to meet the requirements of the Directive and Article 5 ECHR. It is simply by interpreting and applying the Code of Judical Procedure in light of Article 5 ECHR and in accordance with European Court of Human Rights case law that the right to insight will have a real impact in the national law enforcement. The final reflection is that the right to insight will result in legally secure decisions at detention hearings. In this way, the right to insight lead to a reduction of perfunctory detentions and that deprivation of liberty does not occur to a greater extent than is necessary for the purpose of effective law enforcement.