Jura novit curias förenlighet med EKMR i straffprocessen

Sammanfattning: The purpose of this essay is firstly to examine if the principle of jura novit curia is consistent to section 6.3 (a) of the ECHR which provides for a right for the defendant to be informed of the accusation against him. Is jura novit curia consistent to the ECHR in regard of this aspect? According to the text of chapter 30 and section 3 of the Code of Judicial Procedure, the court is not bound by the prosecutor’s legal characterisation of the accusation (jura novit curia). Thereof the court has a possibility to modify the legal characterisation of the accusation into an offense which the defendant has not been able to prepare his defense against. In the doctrine, as well as in the legislative history, there are suggestions that the court should inform the parties if they intend to change the legal characterisation of the accusation. Nevertheless there are examples in practice where the court has ignored this recommendation. Practice of the European Court of Human Rights imposes an obligation for the court, according to section 6.3 (a) of the ECHR, to inform the defendant of the legal characterisation that the court might adopt in the case. Because of the fact that the ECHR have legal effect as law in Sweden, Swedish courts have an obligation to inform the defendant of the legal characterisation that the court might adopt in a particular case. In the precedent of NJA 2004 s 757, the Supreme Court pronounced that the defendant only has a right to be informed of the legal characterisation of the accusation if required. The conclusion is that neither the Code of Judicial Procedure nor the practice of the Supreme Court is consistent with section 6.3 (a) of the ECHR. The purpose of the essay is secondly to propose measures to the legislature and the court in order to apply the jura novit curia in accordance with the ECHR. According to chapter 11 and section 14 of the Instrument of Government, the court through judicial review can apply section 6.3 (a) of the ECHR instead of chapter 30 and section 3 of the Code of Judicial Procedure. Through a new paragraph the legislator can maintain jura novit curia whilst the rights of ECHR is respected.