Går det att sätta ner foten mot barnäktenskap? - Om Sveriges möjligheter att på juridisk väg stoppa en oönskad företeelse som är legal utomlands

Detta är en Kandidat-uppsats från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Child marriage is a phenomenon existing in many parts of the world. In 2004 a new law came into force stating that Sweden does not recognize foreign child marriages if at least one of the parts has ties to Sweden. In order to achieve an increased protection against child marriage the legislation was further strengthened in 2014. In 2018 the Swedish government presented a proposition to a new law forbidding the recognition of child marrige even though the couple had no ties to Sweden when they got married. Despite criticism from the legal counsel the parliament voted for passing the law which will enter into force 1 January 2019. In Sweden there is a political consensus that child marriage is not to be accepted and with new laws the Swedish legislator are trying to thwart the appearance of child marriage. Marrying a child is not a crime according to Swedish law but it has been considered several times. However, in the proposition 2013/14:208 the government concluded that such a crime was not necessary due to the two new offenses that were established; forced marrige and luring to forced marriage trip. They reasoned that these crimes would include cases regarding child marriage. Although it is not a crime to marry a child, penal law can come at issue because of the crime rape against children in 6 kap. 4 § BrB. It is common that young children under 15 years old are entering child marriage, although not considered a crime, the one married to the child could be penalized if the couple had intercourse. According to the regulation it is considered a crime whether there was consent or not. In the autumn of 2018 the district court in Kalmar convicted a man for the crime rape against children when he had intercourse with his 13-year-old wife in Turkey. Similar cases have been withdrawn with referents to the rule of prosecution order in 2 kap 5 § BrB. The opinion about what to define as a crime and what to criminalize are very distinct around the world. When countries criminalize different actions, important principles of international law arise, for example the principle of legality and the principle of non-intervention. What these principles mean and how they are being practised are crucial for how Sweden prosecutes different matters. The purpose with this essay is to investigate the opportunities Sweden has to take legal proceedings against unwanted behaviors such as child marriage which is legal in many parts of the world. The problems that may come as an effect of the new law are to be discussed. The legal counsel has expressed concerns that the new law is incompatible with the right to respect for private and family life in article 8 ECHR and the right to free movement in article 21 FEUF.

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