| 1. |
- Kankaanpää Thell, Emelie, 1986-
(författare)
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Från föräldrars ansvar till ansvarsfrihet för föräldrar : En rättsvetenskaplig studie av föräldrars begränsande och tillrättavisande handlingar mot barn
- 2023
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This thesis analyses and discusses the responsibility of parents in matters relating to restrictive and corrective actions against their children. The thesis argues that the child’s right to a good upbringing under the Swedish Parental Code (1949:381) should be understood as a rights-based process towards legal adulthood. This right is also a fundamental part of the parents’ responsibility for supervision and care of the child and therefore essential to understand the legal norms and limits on restrictive and corrective actions.Milder restrictive and corrective actions towards children are mainly handled within the criminal law system and there within an unwritten exception for criminal liability for such actions. This thesis highlights that the legal test for whether or not restrictive and corrective actions committed by a parent against a child fulfil the objective element of a crime should be based on norms from the family law system, namely the parents’ responsibility for supervision and care and the child’s right to a good upbringing as a rights-based process.
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| 2. |
- Anderberg, Andreas, 1981-
(författare)
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Straffbar oaktsamhet
- 2015
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)
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| 3. |
- Boucht, Johan, 1976-
(författare)
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Polisiär våldsanvändning : En straff- och offentligrättslig undersökning
- 2011
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Johan Boucht. Polisiär våldsanvändning. En straff- och offentligrättslig undersökning. Use of Force by the Police. A Public Law and Criminal Law Study. This doctoral thesis is a criminal law and public law study, which comprises a dogmatic and normative analysis of the legal norms that give powers to the police to use of force against individuals and property. The legal foundation for the use of force is constituted by legal norms that partly belong to the area of Public Law (10 § Police Act etc.), partly by norms of a Criminal Law character (24:1, 24:4 Criminal Law Act) and is therefore dualistic. Whilst the former establish an administrative authority for the police to use force, the latter are general justificatory grounds of Criminal Law that are applicable to police officers when performing their authorised tasks. The research is divided into three parts. The first part contains a dogmatic analysis (and reconstruction) of the applicable Swedish law de lege lata. The analysis points, inter alia, at certain dogmatic inconsistencies and overlaps between the norms of criminal law and administrative law. Secondly, the ambition isto analyse the relationship between the two groups of legal norm, particularly with regard to legal liability. This relationship is characterised by a formal and a material dimension. The conclusion in this section is that the norms need to be looked upon as separate orders of legal norms and, thus, that legal liability must be differentiated between disciplinary sanctions and criminal law sanctions. The third part is a normative analysis de lege ferenda of four subject-matters that have been identified in the former parts as somewhat problematic. These include: 1) the so-called subsidiarity of criminal law responsibility for misconduct of office in certain situations; 2) the dogmatic construction of putative defences regarding imagined situations where justificatory norms are applicable; 3) the right for police officers to plead self-defence; and 4) the dogmatic construction of the rules that form authority for police officers to use fire-arms.
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| 4. |
- Wetter, Anna, 1977-
(författare)
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Making EU Legislation in the Area of Criminal Law : A Swedish Perspective
- 2013
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This dissertation discusses the essential criticisms against the use of EU criminal law from the point of departure that criminal law should ideally be negotiated with a high degree of respect for essential criminalisation principles. The purpose of this is to minimize the risk of over-criminalisation. The dissertation studies four legislative proposals which were submitted by the European Commission in the years between 2006 and 2010 in order to determine to what extent these, as well as the subsequent preparatory legislative materials by the decision-making EU institutions, respected the principles of ultima ratio and the ‘criminal law version’ of the proportionality principle. The ‘criminal law version’ of the proportionality principle requires there to be proportionality between the offence and the penalties, thus it is different from the EU’s general principle of proportionality.The case study review is based on the materials which were produced by the European Commission in the preparation of the proposals, as well as on reports by the European Parliament which summarizes its position on the legislative proposals. Finally, the documents which summarize the Council meetings during which the proposals were discussed are reviewed.The dissertation also discusses the level of transparency in the European legislative process.The dissertation includes a chapter on some essential parts of the Swedish criminal justice system, including a description of how legislation is prepared in Sweden. Another chapter sheds light on the EU’s legislative process, including the amendments made to it in the past decades. This is provided to create a platform for discussion on the ‘status’ of a criminal law which has been negotiated in an international process, although the author mainly leaves it to others to identify possible weaknesses in the system from a criminal justice point of view.The dissertation discusses strengths and weaknesses in the EU’s legislative process from the point of departure that the EU legislator has only recently gained a clear competence to adopt substantive criminal law using the ordinary legislative procedure. In view of this, the dissertation focuses on whether or not the EU is responsive to the criticism it receives.
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| 5. |
- Ågren, Jack, 1966-
(författare)
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Billighetsskälen i BrB 29:5 – berättigande och betydelse vid påföljdsbestämning
- 2013
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This doctoral thesis, ‘Billighetsskälen i BrB 29:5 – berättigande och betydelse vid påföljdsbestämning’ (Equity Factors in the Swedish Penal Code – Their Justification and Significance in Criminal Sentencing), addresses those circumstances, equity factors, linked to a criminal offender personally that can play a role as mitigating circumstances in the determination of any criminal sanctions to be imposed. These factors are set forth in Section 5 of Chapter 29 of the Swedish Penal Code, effective as of 1989. The Swedish sentencing procedure focuses on proportionality in the meaning that the criminal sanction is to be proportionate to the seriousness of the criminal offence. Within the process of determining the criminal sanctions to be imposed, the court initially is to consider any circumstances of the crime that can be seen as aggravating (seriousness and blameworthiness), determining the crime’s severity or “penal” value. The equity factors, which are mitigating as to the sanctions, are then to be considered once the penal value has been determined. The aim of this work is to examine the legitimacy of these equity factors in the sentencing system, and their importance when determining the sentence to be imposed. In other words, the endeavour is made to determine whether the Swedish penal system, can be regarded as uniform in its application. It is important here to clarify the underlying legal-ideological bases from which these equity factors emanate, as well as to examine how such factors are to be evaluated qualitatively in relation to other circumstances of importance for sentencing. The overall conclusion here is that the invocation of equity factors within the Swedish criminal sentencing system is justifiable. Such factors are of great significance in the process of determining the criminal sanctions to be imposed. Nevertheless, certain changes concerning the structure of the provisions are proposed here.
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| 6. |
- Holmgren, Axel, 1979-
(författare)
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Straffvärde – som rättslig konstruktion
- 2021
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This doctoral thesis examines the concept of penalty value (Sw. straffvärde), which is central for Swedish sentencing law. It is impossible to determine the penalty for a crime without establishing a penalty value, and the penalty value is usually of essential importance for how severe the sentence will be. It is not only courts that decide upon penalty values, the legislator also contributes by giving statutory minimum and maximum penalties – i.e. ‘penalty scales’ – for crimes. The purpose of the thesis is to categorise and systematise the reasons and assumptions underlying the assessment of penalty values. Given the penalty value’s fundamental role in justifying the level of criminal repression, such an approach can be considered warranted.Penalty value expresses the principle of retrospective proportionality – i.e. the standard that the punishment should fit the seriousness of the crime. According to a generally accepted view, this principle must be regarded as relative: to determine what is a sufficiently severe penalty, comparisons with other crimes and penalties are needed. Here, one can say that the notion of penalty value adds something by implying that it is possible to determine a specific penalty corresponding to the seriousness of a crime. Thus a penalty value can be construed as a function of two parameters: the (relative) seriousness of the crime and the (fixed) general level of punishment. At the heart of the present investigation are therefore two questions, namely: (i) what the seriousness of the crime signifies and (ii) how the forces that determine the level of punishment are to be ascertained.With regard to the first question (i), the assessment of seriousness often coincides with an assessment of blameworthiness, i.e. how much censure the criminal act deserves. However, the thesis argues that this does not always have to be the case. Right or wrong – sometimes the legislator determines the seriousness of the crime at least in part following a purely instrumental assessment. This prospective assessment can be aimed at an alleged need to prevent crime through a more severe penalty, but also at using the penalty to communicate repudiation with regard to a certain type of offence. To put into words the result of this prospective assessment, the thesis introduces the term p-harm – as opposed to r-harm, which relates retrospectively to the blameworthiness of the act. As said, it is the legislator who makes these forward-looking considerations and occasionally gives penalty values such content. At court-level the determination of penalty values – even when it is based on factors related to p-harm – is invariably ‘norm-rational’ and retrospective.Concerning the second question (ii), the thesis argues that the forces influencing the general level of punishment should be systematised in the form of a balance between ends and means. An established public law principle that can serve to provide this balance structure is the notion of prospective proportionality. Although this way of conceptualising the punishment level must be seen as an ideal-typical and impracticable construction, it does raise certain issues concerning the justification and purpose of punishment – which otherwise risk remaining unaddressed in a system founded on retrospective proportionality.
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| 7. |
- Lavett, Ivar, 1986-
(författare)
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Tillräknelighet som straffrättslig ansvarsförutsättning
- 2024
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This doctoral thesis examines the doctrine of imputability in relation to Swedish criminal law. According to said doctrine, individuals may be held criminally liable only if they possessed the capacity to comprehend and be guided by the norms of the criminal law at the time of the act (capacity-responsibility). Most criminal law systems express this normative idea through a so-called insanity rule, which exempts from criminal liability perpetrators who acted in a severely aberrant mental state. In Swedish criminal law, however, no such rule exists. Building upon this premise, the thesis aims to enhance understanding of criminal imputability as a prerequisite for criminal liability in the Swedish legal discourse. Specifically, the thesis pursues two main objectives: first, to elucidate how the doctrine of criminal imputability is manifested in Swedish criminal law despite the absence of an insanity rule, and second, to highlight the potential functions that such a rule could perform within the Swedish criminal law system. The thesis argues that although the Swedish Criminal Code lacks an insanity rule related to criminal liability, the doctrine of imputability to some extent influences both the general rules of sanctions and liability. Regarding the potential functions of an insanity rule, the thesis proposes three such functions: a practical function to facilitate the examination of liability in cases involving significantly aberrant mental states, a backward-looking function to ensure individuals lacking capacity-responsibility are not unjustly held criminally liable, and a forward-looking function to prevent automatic release into society of perpetrators acquitted under criminal law due to lack of capacity-responsibility at the time of the offense.
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| 8. |
- Martinsson, Dennis, 1986-
(författare)
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Om straffrättsvillfarelse
- 2016
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This doctoral thesis examines mistake of law from a Swedish criminal law perspective. The research has two main objectives: (1) to analyse the Swedish provision on mistake of law, and (2) to explore and analyse how to distinguish between mistakes that are relevant for the application of the intent requirement and mistakes that are relevant for the application of the provision on mistake of law. Mistake of law is, in Swedish criminal law, considered as an exculpatory circumstance, which means that the actor is excused, even though he or she committed an unlawful deed. The provision on mistake of law is regulated in the Swedish Penal Code chapter 24 section 9. In order for the defendant to be excused, the provision states two preconditions: (i) it must be a case of a misapprehension, and (2) this misapprehension must be manifestly excusable. In this thesis, I scrutinise both of these preconditions. I argue that it is important to differ between whether it is a case of misapprehension and whether the misapprehension is manifestly excusable. When determining if the misapprehension is manifestly excusable or not, the defendant has traditionally been excused when the mistake typically is deemed to be exculpatory. However, due to the wordings of the provision on mistake of law, I argue that it is possible to excuse the defendant also in other situations than the traditional ones. Furthermore, when determining whether the misapprehension is manifestly excusable, the legal sources suggest that this is a form of a culpability requirement which basically means that the defendant is excused when he or she conducted some kind of investigation of whether a certain deed was lawful or not. According to the findings in this thesis, this can explain most – but not all – cases where the defendant is excused. This idea must, however, be supplemented with other reasons as to why the defendant is excused. Therefore, I suggest that there are situations where the defendant can be excused although he or she did not investigate the lawfulness of a certain deed. When exploring the difference between mistakes that are relevant for the application of the intent requirement and mistakes that are relevant for the application of the provision on mistake of law, it is important to note that such an analysis can only be fruitful if it focuses on certain preconditions in certain offences. Thus, this thesis discusses this matter by a range of selected offences where this distinction becomes more interesting than in relation to other offences. In this part, I stress that the design of the scope of the intent requirement will determine whether a mistake in relation to a certain precondition in a certain offence, will be treated as a mistake which is relevant to the application of the intent requirement or a mistake of law. Furthermore, I underpin that the intent requirement can be designed as more or less qualified, which means that the intent requirement sometimes is deigned in such a way that it is enough if the defendant’s intent covers the factual basis of the necessary precondition and sometimes is designed in such a way that the defendant’s intent must cover the correct (or nearly correct) conclusion that a certain deed, in legal terms, was unlawful. However, the scope of the intent requirement can only be determined by analysing each and every precondition in each and every offence. Thus, this cannot be determined by an overarching method.
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| 9. |
- Naarttijärvi, Markus, 1981-
(författare)
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För din och andras säkerhet : Konstitutionella proportionalitetskrav och Säkerhetspolisens preventiva tvångsmedel
- 2013
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This doctoral thesis analyzes the balancing and proportionality analyses performed by Swedish legislators over time in the creation of legislation allowing for the interception of communica- tions data and metadata by the Swedish Security Service for intelligence purposes. By examining the concept of proportionality within the field of constitutional law, a framework for performing proportionality tests is identified. This framework is used as a contrast against the actual proportionality analyses performed by legislators in preparatory works, and to analyze three components of the legislators’ policy choices: the legislators’ view of national security, the legislators’ view of privacy; and the effect of technological development on the former two components. These components are analyzed through a study of preparatory works from a historical comparative perspective, allowing for the study of shifts in policy outcomes over time.The study shows that legislators’ views on national security have shifted during the last 50 years. as could be expected the focus has shifted towards a more preventive approach. Following this development however the study further identifies a shift in the legislators’ views on privacy. Whereas the importance of privacy from a societal perspective seemed pivotal in the ’pre-preventive era’ of communications interception, the view in the last 15 years has gradually shifted towards a view of privacy as an almost exclusively individual interest, resulting in a weakened status of the right to privacy against competing national security interests. Finally, the importance of technological developments within this field can hardly be overestimated. The range of permitted forms of communications interceptions has closely followed what has been technologically possible, and economically feasible to intercept.Intelligence gathering has increasingly become a legal sphere of its own, where most forms of metadata can be collected without the involvement of the judiciary, and where evidentiary requirements have been lowered to facilitate the use of interception in preventive intelligence gathering. Overall the thesis concludes that these factors have enabled a different outcome of the legislators’ proportionality analyses, where previous ideals have been supplanted by the preventive paradigm.
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| 10. |
- Andersson, Malou, 1973-
(författare)
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Grov fridskränkning och grov kvinnofridskränkning : Fridskränkningsbrotten som rättslig konstruktion
- 2016
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Over the last decades men’s physical and psychological violence against women in intimate relationships (domestic violence) has become a central issue in Swedish politics. Men’s physical and psychological violence against women is generally be understood as including physical, sexual and psychological violence (e.g rape, battery, sexual abuse or insults) that occurs within the family, whether or not the perpetrator shares or has shared the same residence with the woman. Law reforms have been carried through with the objective of enhancing criminal legal protection for women. In 1999, a new law came into force within the framework of chapter 4 of the Penal Code which includes any member of the family with the objective to treat acts that are already criminal from a different perspective if they are committed within a pattern of systematic physical and psychological violence.This doctoral thesis examines the concept of domestic violence and the criminal act in Chapter 4, section 4 a of the Swedish Penal Code which prescribes liability for violation of integrity offences. According to the first paragraph, a person who commits criminal acts as defined in Chapters 3, 4, 6 or 12 or of the Swedish Penal Code (e.g. rape, battery, sexual abuse or insults) or violation of a restraining order against a person with whom they have or have previously had, a close relationship will be sentenced for gross violation of integrity to imprisonment for at least nine months and at most six years if each of the acts were part of a repeated violation of the person’s integrity and the acts were liable to severely damage the person’s self-esteem. The second paragraph states if the acts were committed by a man against a woman to whom he is, or has been married or with whom he is, or has been cohabiting under circumstances comparable to marriage. He will instead be sentenced for a gross violation of a woman’s integrity to the same punishment. The objective of introducing a violation of integrity offence was to enable criminal proceedings to take in to account the abused person’s entire situation when he or she has been subjected to a series of albeit punishable but often individually relatively minor acts and to bring about an upgrading of the penal value of such acts. The main purpose of this thesis is to examine when and under which circumstances a person can be held responsible for gross violation of integrity or gross violation of a woman’s integrity. The analysis aims at the construction of the law, but also to examine the legal and social consequences and the interpretation and application of the law.
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| 11. |
- Borg Jansson, Dominika
(författare)
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Harmonizing National Laws on Human Trafficking by Implementing Article 3 of the Palermo Protocol : Problems and Reform
- 2013
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- Trafficking in human beings is one of the most serious and acute problems of our time. It is seen as one of the main forms of organized crime as well as a modern form of slavery. Trafficking is a practice that affects entire societies or rather the very fabric of democratic societies. It undermines the foundations of liberal democracies by violating principles of integrity and human dignity. The crime also leads to loss of human capital, drives organized crime, fuels political corruption, and causes the spread of HIV and other venereal diseases.Although the practice has been addressed in international law and numerous states have criminalized it, the problem not only persists but also seems to be growing. The main question posed in this thesis is why, despite the scope of the crime and the international efforts in this area, there are so few trafficking convictions worldwide.The thesis attempts to answer this question by evaluating the international definition of trafficking, as stated in Article 3 of the Palermo Protocol, by means of which national laws in this area are harmonized and by putting those findings in context by discussing the implications that this definition has had on national laws in Sweden, Poland and Russia, a novel approach in the study of trafficking.The findings can be divided into two categories. Firstly, there are challenges that are country-specific. Secondly, there are certain problems that are experienced by all three countries. As will be shown, these are attributable to the wording of the international definition of trafficking. Building on the findings mentioned above, recommendations are made on how the international definition of trafficking might be improved. The suggestions range from simple to more far-reaching reforms, concluding with a proposal on how a trafficking provision might be framed.
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| 12. |
- Thunberg Schunke, Malin, 1969-
(författare)
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Internationell rättslig hjälp i brottmål inom EU : Effektivitet v. rättssäkerhet
- 2004
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This is a thesis in criminal law that deals with questions concerning international judicial cooperation in criminal matters. The point of departure is the 1959 European Convention on Mutual Assistance in Criminal Matters. This convention regulates inter alia international letters rogatory concerning the questioning of witnesses or suspects abroad, and requests for different forms of coercive measures such as search and seizure. The overarching purpose of the thesis is to analyze and evaluate the international instruments which govern judicial assistance in criminal matters within the EU. The thesis has an international perspective, since its starting point is the international sources of law and not the national. The main tasks of the thesis are:1) to systematically order the different types of international agreements that are applicable in such cases and to study how these instruments interact and supplement each other.2) to systematize and analyze the changes and reforms that international judicial assistance has undergone through new types of instruments.3) to study the position of the individual in transnational cases. Since there is a need to balance law enforcement interests and the protection of fundamental human rights, one purpose is to establish whether certain human rights are adequately protected in cross-border cases where an international request for judicial assistance is necessary.
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| 13. |
- Ulväng, Magnus
(författare)
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Påföljdskonkurrens - problem och principer
- 2005
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- This is a thesis in criminal law concerning concurrence of crimes and principles of sentencing multiple offenders. Concurrence of crimes occurs in situations where more than one rule (or the same rule several times) can be applied on a certain case. The fact that it is possible to apply the law more than once does not imply that this is also appropriate. When dealing with concurrence of punishment, it is always established that the offender is to be convicted of more than one crime. The main question is what principles should be used in sentencing multiple offenders. Traditionally a number of legislative models and principles have been used, which all are reflections of three principles, namely the principles of cumulation, absorption and asperation. Depending on whether sentencing multiple offending arises on one occasion or on different occasions, distinct types of problems of concurrence occur. The special feature that distinguishes sentencing multiple offenders on different occasions is the time aspect. Under the condition that the previous sentence has not been fully implemented when the new criminality is committed, the court is obliged to—to various extents—take the previous sentence into account when deciding on the new sentence. Thus, the sentencing becomes iterative. The overarching purpose of the thesis is to examine what principles underpin the regulation on sentencing multiple offenders and whether these principles are compatible with the general principles and the ideology of sentencing in Swedish law. A further purpose is to reconstruct the principles applied in iterative sentencing and to examine whether these principles correspond with the general principles of sentencing. My conclusion is that the Criminal Code Ch. 34 rests on partly different rationales and values than the ones governing the Swedish sentencing policy. Hereby, the regulation causes a number of practical problems. The main proposal is that the concurrence doctrine should be based on the same rationales and ideological foundation as the regulation of sentencing in general.
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