“Ingen kommentar” och den vältaliga tystnaden - En undersökning av hur förklaringsbördan i brottmål förhåller sig till oskyldighetspresumtionen och rätten att vara tyst.

Sammanfattning: Pursuant to Article 6 of the European Convention on Human Rights everyone is entitled to a fair trial. Article 6.2 of the Convention stipulates the legal principle of the presumption of innocence, ensuring that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. As a result of the presumption of innocence, the burden of proof is on the prosecution and the defendant has the right to remain silent. However, it has in case law sometimes been deemed required for the accused to provide an explanation, after the prosecution has presented its case (a so-called burden of explanation). Reluctancy or inability to provide an explanation can then be held against the accused in terms of evidence. The aim of this paper is to examine the extensiveness of the burden of explanation under Swedish law, and whether the courts’ application of such a bur-den complies with the basic legal principles of the presumption of innocence as well as with the right to remain silent from a legal certainty standpoint. As the principle of free evaluation of evidence provides, courts are free to evaluate all evidence adduced in a case. Accordingly, the courts may take into account that the accused has remained silent and failed to provide a satisfactory explanation of a certain fact or evidence presented against him. The European Court of Justice and the Swedish Supreme Court have established that probative value, when evaluating the evidence, may be given to the silence of the accused in cases where an explanation from the accused is clearly called for. The accused’s silence may only be given probative value when convincing evidence has been presented against him. It is uncertain whether this implies that it must have been established beyond reasonable doubt that the accused has committed the alleged act before a burden of explanation can be applied. Further, given that a burden of explanation may be applied merely when the circumstances clearly call for an explanation, it may be questioned whether such a burden genuinely exists. Applying a burden of explanation may not entail a reversed burden of proof. A clarification, of in which situations the application of a burden of explanation may be actualized, or of its extensiveness, has not been provided in case law. This leaves a door open for arbitrariness, and an inconsistent application of the principle by the court system, which may lead to a gamble of the legal certainty of individuals, thereby putting it at stake.