Försvarslöst förhör - en grund för avvisning?

Sammanfattning: Under Swedish law, there are two general principles regarding the admissibility of evidence. The first principle entitles the parties to present any relevant evidence to the case. The second principle entitles the court to determine the significance of the evidence for the outcome of the case. However, the right under Article 6 § 3 (c) ECHR of everyone charged with a criminal offence to be effectively defended by a lawyer, is one of the fundamental features of a fair trial. The European Court of Justice has on several occasions concluded that the use of information provided by the suspect during interrogation without assistance of a lawyer, may violate the suspect’s rights under Article 6 ECHR. In its resent case law, the Court examines in particular 1) the existence and extent of restrictions on the applicants’ rights under Article 6 § 3 (c) ECHR, 2) whether there were compelling reasons for such restriction, 3) other factors that are relevant for the overall assessment. If incriminating information provided by the suspect during the interrogation without assistance by a lawyer is used for a conviction, without there being compelling reasons, there is a presumption that the trial has not been fair pursuant to Article 6 ECHR. Accordingly, the principles under Swedish law may conflict with the principles followed by the European Court of Justice’s resent case law. The study discusses three solution methods that have been brought up in Swedish case law when such a conflict arises. The exclusionary method means that the evidence is considered inadmissible. The valuation method means that the court allows the evidence, but applies a lower evidential value than the court would have done if the suspect’s rights had not been violated. The sanction method means that the court reduces the actual sanction value in a mitigating direction as compensation for the violation. The European Court of Justice’s case law under Article 6 ECHR does not impose a prohibition of evidence on incriminating information provided by the suspect during interrogation without a lawyer present, and is therefore not in conflict with the Swedish principle that entitles the parties to present any evidence. Furthermore, the study discusses the sustainability of the presented solution methods, initially concluding that there is nothing to indicate that the sanction method would be sufficient to balance the violation which, according to the European Court of Justice, occurs when information provided by a suspect during interrogation without access to a lawyer is used for a conviction. However, a consistent application of the exclusionary method would in many cases be contrary to the right to present any relevant evidence. A consistent application of the valuation method would in many cases lead to a restriction in the judge’s entitlement to determine the significance of the evidence for the outcome of the case, since the evidence according to Article 6 ECHR in many cases may not be used as an element for a conviction. If the suspect’s right to a lawyer has been restricted without there being compelling reasons for such restriction, the court should use the exclusionary method. If, on the other hand, the suspect’s right to a lawyer has been restricted to a lesser extent, or if there have been compelling reasons for such restriction, the court should allow the evidence and evaluate it with the necessary caution (and thereby applying the valuation method).