Det oklara beviskravet - skälig misstanke vid polisiär kroppsvisitation och kravet på rättssäkerhet

Sammanfattning

The evidentiary threshold of reasonable suspicion plays an important role in the use of preventive coercive measures. It enables criminal activity to be detected at an early stage and thereby counteracts criminality. Although this requirement is indispensable for the implementation of body searches, the concept remains undefined. In contemporary law, reasonable suspicion lacks a legal definition, and no further guidance can be found in either law or preparatory works. The legislator’s purpose behind this absence may stem from the function of coercive measures which is the ability to be applied under a variety of factual circumstances. This elasticity enables broad application in which numerous cases may be captured and not fall outside the scope of application. At the same time, such openness risks causing hypotheses regarding the outcome of situations to fail, allowing arbitrariness instead of governing the result. When law and preparatory work fail to clarify the legal position, guidance must be sought from case law. Therefore, statements issued by “Justitieombudsmannen” play a significant role in this area, where some guidance has been provided in assessing when a legitimate reasonable suspicion may be deemed to exist. However, case law practice is also deficient as only vaguely formulated assessment criteria are provided, criteria that are likewise underdeveloped in legal doctrine. The purpose of this thesis is therefore to examine the meaning of the evidentiary threshold of reasonable suspicion in relation to body searches, as well as whether its application is compatible with the requirement of legal certainty. The absence of a legal definition and clear risks of arbitrariness in legal application motivates an analysis of whether the practical application of the requirement fulfils central legal safeguards and principles of criminal procedure. By examining the current regulation, the balance between the need for effective crime control and the protection of the individual against state interference can be analyzed. This balance illustrates the spectrum between the crime control model and the due process model, where the need for efficiency is weighed against legal certainty. If the due process model is given excessive priority, crime control risks becoming ineffective and guilty individuals may evade accountability. At the same time, an absolute crime control model risk disregarding individual rights, such as protection against coercive state interference. Depending on the placement within this spectrum, the legitimacy of reasonable suspicion varies in scope regarding when a body search may be conducted. This study applies to a legal dogmatic method with the purpose of establishing the current legal position concerning the meaning of the evidentiary threshold. The thesis is therefore based on generally accepted legal sources, including statements from case law and legal doctrine, considering insufficient guidance in law and preparatory works. Legal dogmatics adopts a critical perspective with the aim of problematizing the current legal application. Attention will be given to the risk of arbitrary assessments and the lack of foreseeability resulting from the open nature of the evidentiary threshold. The study focuses exclusively on the Swedish criminal procedural regulation of the evidentiary threshold in relation to body searches pursuant. Contemporary society reflects significant challenges relating to the growth of drug-related crime, where both sale and use constitute increasing social problems. Consequently, questions arise concerning which tools the state should be granted to address the current situation. Thus, reasonable suspicion in relation to body searches will be examined in the context of drug offences, where coercive measures play an important role. The thesis concludes that the current regulation of reasonable suspicion in relation to body searches only partially fulfills the requirement of legal certainty. Predictability is weakened by the broadly formulated standard of proof, which is likewise not clarified in case law or legal doctrine. There are differing opinions regarding the legal implications of the concept. On the other hand, such flexibility provides law enforcement with a useful tool, since the factual circumstances of individual cases may vary. If the meaning of reasonable suspicion were to be more precisely defined, certain situations might fall outside the scope of the legal provision. A power of control without practical effect undermines citizens’ trust in the state regarding compliance with substantive legal rules. Therefore, the shortcomings in the observance of legal certainty should be counteracted through more uniform and consistent case law. The legally sustainable balance between the due process model and the crime control model will be highlighted frequently, with final reflection of the subject presented in the last chapter of the thesis.