Villfarelse, skuld & samurajsvärd – En uppsats om den svenska putativmodellen

Sammanfattning: A situation where a person committed a criminal act due to a misperception of reality is called a putative situation. Putative situations may occur, for example, when someone mistakenly thought they were being attacked and therefore defended themselves, or when someone smashed a car window because they mistakenly thought a dog was trapped in the hot car. Each justifying circumstance can be linked to a putative situation, as can the excusing circumstance of excess. The Swedish model for dealing with a putative situation is based on the older doctrine and correction, which means that the justifying circumstances should be read into the article of prohibition. According to the principle of coverage, this is the technically logical solution, but its shortcomings are debatable. Some argue that it results in too easy an exemption from liability, especially for persons who were negligent in the creation of the delusion. Questions concerning responsibility and guilt involve both the principle of conformity and the principle of guilt. When assessing subjective circumstances, such as the guilt of a person in a situation, evidential difficulties often arise. Especially in situations where even the objective circumstances are uncertain. In the Samurai case (NJA 2012 p 45), neither of the two people present, the offender or the victim, remembered the decisive segments of the course of events. The perpetrator was confirmed to be mentally disturbed at the time of the crime and his only explanation, for why he impulsively attacked his girlfriend with a samurai sword, was that he thought he was being attacked by something himself. The situation was thus a case of putative self-defense. Although his action constituted a serious crime, it is possible to discuss whether he as a person should be blamed, considering the principles of guilt and conformity. The Swedish putative model is based on these, in Swedish, fundamental principles of guilt and responsibility. However, when balancing interests, other purposes may need to be given priority. Changing the theoretical set-up of the model is, however, inappropriate. This considering the principles and the restrictive assessment by the courts when applying the model.