Anstiftarens ansvar vid error in persona : Betydelsen av den anstiftade gärningsmannens förväxling för gärningsmannen och anstiftarens ansvar i ljuset av NJA 2022 s. 675.

Sammanfattning: This is a thesis regarding the instigator’s intent in a case where the perpetrator, due to confusion, attacks another person, other than what the instigator had intended. The doctrine of error in persona and aberratio ictus is one of criminal law's most classic problems and highlights the conflict of intent when the act causes an intended result in an object other than intended. Another aspect being analyzed is what is known as the "coverage principle" and how it should be applied regarding differences between the perpetrator’s action and the instigator’s perception of the imagined events. Should the instigator then be charged with intent for the attack that takes place, even though the course of events developed in a completely undesirable way from the instigator's point of view? And if so, what should the instigator be charged for: instigation of attempted murder of the intended victim, instigation of murder of the actual victim, or both? The overarching purpose of the thesis is to examine how intent coverage should be assessed and what the perpetrator’s mistake means for the instigator’s liability. The thesis consists of analyzing jurisprudential and theoretical aspects as well as elements of comparative law regarding this issue. When exploring the intent of the instigator, it is necessary to determine what the perpetrator's mistake means for his or her liability. Two alternative models have been presented within Swedish legal doctrine: the model of equivalence and the model of specialty. My conclusion is that the model of equivalence should be applied concerning the perpetrator’s liability for error in persona, and after analyzing cases from the Swedish courts of appeal, the model of specialty will most likely be applied in cases of aberratio ictus. The Swedish Supreme Court addresses the instigator’s criminal liability in NJA 2022 s. 675. In this thesis, I scrutinize the case to pinpoint what this implies for the instigator’s liability, despite the perpetrator's mistake. The Supreme Court rules that if two conditions are met, the instigator has intent to commit the act committed by the perpetrator. Firstly, that the act intended by the instigator is criminally equivalent to the act that is committed, and secondly, that the outcome of the instigation is a conceivable consequence of the course of events that the instigator has set in motion. My conclusion is that the assessment of the instigator's intent should be made separately from the assessment of the perpetrator's intent. For the “coverage principle” this means that all the details of the course of events can never be predicted and cannot rule out intent. Furthermore, I suggest that there are two ways to judge the instigator’s intent: a subjective assessment that aims at the instigator’s intention at the time of the act and the circumstances of the individual3incident, or an objective assessment that aims at the risk-taking relevance and "principles derived from experience." Finally, despite the perpetrator's confusion about his identity, the instigator has the intent to the act committed by the perpetrator, despite that the outcome wasn’t desired by the instigator.