Normalstraffet för mord - En konstitutionell analys avseende Högsta domstolens befogenheter

Sammanfattning: The paper examines if the Supreme Court, by not following the legislator´s intentions regarding what the normal penalty for murder should be, has exceeded its powers under the Instrument of Government. Normal penalty refers to the penalty that the courts proceed from when deciding the penal value. The public power in Sweden proceeds from the people. It would be difficult to implement that the people exercise power directly and different State bodies therefore has been given different functions. The Riksdag is the foremost representative of the people and has been given the function to enact the laws. Courts of law exist for the administration of justice. Which tasks the courts should have besides judging is not stated in the Instrument of Government. It is clear though that the principle of legality sets the limit to how far the Supreme Court´s legislative powers extends. The court can only deviate from law if the court finds that the provision conflicts with a rule of fundamental law. The legal position cannot always be clarified by reading the act and the courts then have to interpret the act in the light of the purpose of the act. The purpose should be respected as far as it is compatible with the amendment of the law. It is in this regard disagreement can emerge on how loyal the courts should be towards the legislator. In the debate Wersäll thinks that the Supreme Court should be loyal towards the legislator while Lindskog thinks that the court should take responsibility for making the law. Regarding the penalty for murder a few amendments of the law have been made lately. In 2009 the legal provision for murder was changed in order to make room for a more varied sentence and to raise the penalty level for the fixed sentence. One year later another amendment of law was made in the Penal Code in order to raise the penalty for all crimes of violence. In NJA 2013 s. 376 the Supreme Court stated that these amendments of law resulted in that the normal penalty for murder should be fourteen years and that the life sentence should be imposed if there are “particularly aggravating circumstances”. The legislator wanted to achieve a further raise and made a new amendment of the law in 2014. In the legal provision a condition to impose life sentence was added: “if the circumstances are aggravating”. The purpose was to increase the use of life sentence and to make this the normal penalty in the sense that it would be imposed in the majority of the cases. The amendment of the law was made in the light of NJA 2013 s. 376. The Supreme Court deviated from the legislator´s intention in NJA 2016 s. 3 and stated that the amendment of law did not change the legal position. The court thought that it was problematic that a condition had been added and that it rather implied that the use of life sentence should be restricted. Sunnqvist and Asp share the Supreme Court’s opinion but Asp states in his article that the Supreme Court could have been loyal to the legislator because firstly the meaning of the amendment of the law depends on how you interpret “if the circumstances are aggravating”, secondly there was not any legality issues in this particular case. The question if the Supreme Court exceeded its powers by not following the legislator´s intentions is therefore dependent on the question how loyal the Supreme Court should be towards the legislator. The Instrument of Government does not give any expression of separating power and some caution is to prefer when making law.