En upprepande slump eller ett andrafierande mönster? - En undersökning om strukturell diskriminering på grund av etnisk tillhörighet inom domstolsväsendet

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

Sammanfattning: Over the past decades, The Swedish National Council for Crime Prevention has conducted two studies showing that immigrants in Sweden and people with foreign backgrounds are overrepresented amongst crime suspects. As migration to Sweden increases these studies have received more attention. Nationalistic and social conservative parties are taking advantage of the situation, why the political climate has hardened; to such extent that it is now considered a threat to Sweden’s national security. This polarization can, to some degree, be seen within the Swedish judiciary. Previous research has evidenced structural discrimination against ethnic minorities in Swedish courts. In this study I therefore examine whether structural discrimination against ethnic minorities occurs in a selection of rape judgements and if so, how this occurs. A prerequisite for the occurrence of structural discrimination against ethnic minorities is however the creation of “the Other”, which at the same time entails defining “the Self”. The study is divided into two parts; in the first part I take inspiration from a discourse psychological approach and analyse my selection of judgements. Here I identify discourses sorted into different themes, that illustrate in what way the court creates “the Other” and portrays the “the Self”. The second part consists of a statistical analysis and I give an account of the choice of sanction and the length of sentence in the judgements where the Court of Appeal has adjudicated the case. I also make a comparison between defendants, which I have divided into three categories. This part is moreover preceded by a chapter where I, by applying a legal dogmatic method, give an account of the Swedish system of criminal sanctions and the applicable regulations in the Penal Code for determination of penalties. The aim is to examine whether it is possible to see any negative discrimination in practice, against people that have another ethnicity other than Swedish. The study shows that immigrants are sentenced to longer imprisonment sentences in comparison to ethnic Swedes. In the majority of these cases there is also an underlying discourse where the court creates “the Other”. Accordingly, this indicates the occurrence of structural discrimination because of ethnicity. Since the criminal acts and circumstances are not identical, it is not possible to say how the court would have adjudicated in a similar case, if the defendant would have been an ethnic Swede. However, a common denominator for these cases, where the defendant is an immigrant, is that they all have a foreign citizenship. This fact itself indicates a risk that ethnicity is consistently a factor taken into account when the court chooses a sanction, which cannot be explained just by stating that different circumstances occurred.

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