Riksdagens normgivningsmakt och den konstitutionella innebörden av divergerande domstolsskapad rätt – En analys med utgångspunkt i ventilerna för straffvärdesnedsättning

Sammanfattning: When determining sanctions in Swedish criminal law, the courts assume penal value as the starting point. The most common factors used to reduce penal value is expressed through legislation, however the courts also hold the capacity to consider other elements of the case that they consider to be significant. These factors can further be used to rule below the established penalty scale for the offence in question. This essay performs as an analysis concerning the courts’ agency regarding the possibilities of ruling below the minimum penalty with reference to general grounds for penal value reduction. The purpose is to examine whether the courts’ exercise of power is in accordance with the constitutional separation of powers. For this purpose, the margin for interpretation of the constitution is also examined. The general grounds for penal value reduction have over time been limited in regard to which factors may be taken into consideration. Finding precedents for such cases is furthermore difficult. The capacity in which mitigating factors can be considered is simultaneously said to have increased. Additionally, the principle of sanctions being as mild as possible contradicts the constitutionally supported legal policy development, which is currently arguing generally in favor of harsher sentences. The constitutional regulations regarding the competences of the courts are often vague and in some respects contradictory. The question of whether there is a legitimate place for law to be created or filled out by courts in the Swedish justice system is uncertain. It can be argued that the authority of the courts could lead to abuse of power in this sense, but this largely depends on how the constitution is interpreted. If the courts were to abuse their power, the possibilities to counteract such developments are limited. However, much points to this at least not currently being a frequently occurring issue.