Reglerna om förundersökningsbegränsning vid flerfaldig brottslighet : - En konflikt med egendomsskyddet enligt Europakonventionen?

Sammanfattning

Since 1981 the Swedish Code of Judicial Procedure (rättegångsbalken, SFS 1942:740) has provided prosecutors the possibility to limit a preliminary investigation concerning property offences, inter alia when the suspect is also suspected of having committed other offences. Since 2013, this possibility has also been available to the police. These rules have been considered necessary by the Swedish legislator, as Sweden has, since their introduction, been regarded as facing extensive criminal activity, which has required an efficient allocation of the limited resources of criminal investigative authorities. Since 1995, the European Convention on Human Rights has been incorporated into Swedish law. In its more recent case law the European Court of Human Rights has interpreted the protection of property as including an obligation on the part of Member States to investigate property offences. At first glance, the older rules on the limitation of preliminary investigations may therefore appear to be in conflict with the Court’s more recent case law concerning the protection of property. As the thesis demonstrates, however, such a conclusion cannot be drawn so easily. The European Court of Human Rights primarily examines individual cases and does not conduct any general review of legislation. At the same time, the practical application of the limitation of preliminary investigations depends largely on guidelines issued by the Swedish Prosecutor-General (Riksåklagaren) rather than on the traditional sources of law otherwise recognised within Swedish law. Against this background, various typical scenarios arising from the application of these rules have been examined in relation to the case law of the European Court of Human Rights, whereby one particular scenario has appeared especially problematic from the perspective of the Convention. This concerns situations in which a preliminary investigation is limited at a late stage of the investigation, where the procedural economy gained from limiting the investigation is marginal, while decisive evidence for the individual has nevertheless been lost. The thesis also highlights the broader consequences of these rules by analysing whether the civil law rules with which the injured party must contend after a criminal investigation has been limited are in fact appropriately designed for such a situation. Here too, several potential areas of concern have been identified from the perspective of the Convention, particularly with regard to litigation costs, court fees, and the limited possibility for the injured party in certain situations to pursue their claim independently.