Anstiftan, förväxling och uppsåt - Om NJA 2022 s. 675 och bedömningen av en anstiftares uppsåt vid error in persona.

Sammanfattning: The following paper examines the Supreme Court's decision in NJA 2022 s. 675, and the criminal liability of an instigator in case of error in persona. In the case, the defendant had instructed two perpetrators to murder a specific person. However, the perpetrators mistook the identity of the intended victim, and instead killed another person. The relevant legal question was whether the instigator should be considered to have had intent to the death of the other person, even though this had not been the instigator's intention. The paper finds that two different resolution models have been proposed in the literature, the equivalence model and the speciality model. Advocates of the equivalence model have argued that the instigator should be convicted of instigation of murder. Advocates of the speciality model have instead argued that the instigator should be convicted of instigation of attempted murder in relation to the intended victim, and possibly of a negligent offence in relation to the actual victim. In NJA 2022 s. 675, the Supreme Court chooses to apply the equivalence model. The Court states that an instigator should be considered to have had intent to the death of the actual victim. However, this requires that the intended act and the actual act are criminally equivalent, and that the outcome was conceivable in relation to the instigator's actions. The decision is further discussed in the paper's analysis. It concludes that the rule formulated by the Supreme Court is well in line with the Swedish doctrine of intent. However, criticism is raised against the fact that the perspective of the crime victim is disregarded, as the precedent risks leaving crime victims without the possibility to exercise their rights.