Om sanningen ska fram - bevisprövningen av bevismedel med oklart ursprung

Sammanfattning: This thesis examines the evaluation of evidence material of unclear origin in Swedish law. "Unclear origin" refers to that for various reasons it is not possible to account for where the evidence comes from, how it was obtained or that there is some other ambiguity about the circumstances for obtaining the evidence. The unclear origin means that the court is faced with procedural problems in the evaluation of evidence. The purpose of the thesis is to investigate how evidence of unclear origin is tried and how such evidence should be tried according to Swedish law. Evidence of unclear origin is subject to deficiencies related to both its probative value and the possibility for the other party to bring an action. The use of evidence of unclear origin thus means that ambiguities are allowed into the legal process, which also raises issues of legal certainty. Can a free and critically examining evaluation of evidence satisfy reasonable legal certainty requirements in the evaluation of evidence of unclear origin? Or is a model of rejection or special rules of evidence better at promoting legal certainty in the evaluation of evidence of unclear origin? According to applicable law, evidence of unclear origin shall not normally be rejected but evaluated within the framework of the court's free evaluation of evidence. There is some support to the claim that it may conflict with the right to a fair trial according to art. 6 ECHR to issue a conviction solely on the basis of evidence with an unknown source. However, neither the case law of the European Court of Justice nor that of the Swedish Supreme Court should be considered to entail a general requirement that evidence of unclear origin needs to be supported by other evidence. To investigate how evidence of unclear origin is tried in Swedish law, a case analysis of Swedish lower court decisions has been carried out where evidence in the form of EncroChat material and surplus information has been evaluated. The courts have issued convictions based mainly on EncroChat material, while some courts have applied an almost formal requirement for supporting evidence, which indicates a certain inconsistency in the examination of evidence. The conclusions of the thesis are that evidence of unclear origin should continue to be permitted in Swedish law and be evaluated within the framework of the free evaluation of evidence. At the same time, it is important to note that evidence of unclear origin is generally uncertain which places high demands on the court to be aware of the evidence’s shortcomings that a possible unknown origin can cause to minimize the risk of incorrect and legally insecure judgments.