Urkundsförfalskning – den oföränderliga paragrafen

Sammanfattning: Summary The legislation of Sweden has gradually been updated in order to keep up with changes in IT. The paragraph relating to forgery in chapter 14 § 1 of the Penal Code has not been changed since 1948 and has also survived various revisions. The purpose of this paper is to make clear that there is a need to modify chapter 14 § 1 of the Penal Code in order to accommodate developments in IT and to discuss some potential modifications to it. There is a strong argument to indicate that chapter 14 § 1 of the Penal Code is not adequately formulated for our society. NJA 1991 p. 739 and NJA 2009 p. 111 are two current cases where it is possible to see that the outer limit of the paragraph has been exceeded by the Supreme Court of Sweden. Some legal analysts have posited that the Supreme Court of Sweden’s judgments have been so far off from the wording of the paragraph that it is doubtful if the legal position is within the principle of legality. This doubt is created when old terms are applied to new legal areas where they do not really belong. The research SOU 2007:92 was conducted to clarify the legal position. This legal position is now even more doubtful if you compare the more recent case NJA 2009 p. 111 to SOU 2007:92. Above all, the Supreme Court of Sweden used the accessory of “original character” in a context were it did not belong. SOU 2007:92 indicated instead that it was better to use “original containment” as an accessory because it is possible to duplicate electronic documents in a different way. In that case it is easy to see difficulties in how chapter 14 § 1 of the Penal Code can be used to protect the common reliance that these original documents can be used as proof and hence, legislation is needed to remove this uncertainty in order to adapt the original document concept to IT developments. How chapter 14 § 1 of the Penal Code should be formulated to accommodate IT development nowadays has been the focus of discussion of different research. It is difficult to create a technology-neutral legislation where there are no differences between traditional and electronic documents, especially with regard to any expected developments in IT that may take place in the foreseeable future. It will therefore be possible to point out some terms that will be important in order to formulate the accommodation of “original document” as a legal term. It is necessary to clarify a way to connect the accommodation of the text to support the common faith to protect these original documents so they work as proof generally, especially with the increasing pervasiveness of the Internet and use of electronic documents. In the same way, it is important to also note the differences that appear in comparing a traditional and an electronic environment. Forgery, as a function to protect messages as proof, should be more connected in that part of the paragraph that will point out the outer limit of what that is worth preserving. Therefore it is a good argument to distinguish the connection between “the character of original documents” and “the danger of use in regard of the proof” and those accessories’ connections to a general faith of original documents. The use of Internet is characterized by an openness that also distinguishes differences and in the same way shows different arguments of protection that have to be more powerful than the original document to continue a general faith. When it comes to an original document as a legal term and its influence on both traditional and electronic documents, there are two alternatives in how this term could be solved: one alternative is to have a mutual term and the other is to have separate terms that show any differences. If an alternative with two different terms is chosen there are risks that it will not be technology-neutral and it could create ambiguities for the courts to solve. That would increase the level of doubt. It is difficult to create a uniform definition of original documents that is useful in both environments even though there are few common parallels. In the same way, it is not beneficial to lock these “hidden accessories”, as SOU 2007:92 wanted, in to the text in the paragraph when those accessories should be different depending on which kind of original document is prescribed. A new form of chapter 14 § 1 of the Penal Code should point out the point of proof connected to the original document: at the same time, it should emphasize its criminal purpose. If a legal text is too detailed it is possible to see the disadvantages that are unknown today and connect them to the nature of IT developments that result from fast development. It is hard to foresee how these developments and what kind of original documents will require the most protection in the Penal Code.