sou · H1B317 · 2013-04-03 00:00:00 — The judge should not act on their own volition to ensure the completion of the investigation into the issue of liability. A require- ment should be introduced for an application to be first made by a party before the court may order the prosecutor to complete the preliminary investigation. The court should not be able to evidence on its own volition regarding the issue of liability. On the other hand the court should retain the ultimate responsibility for there being sufficient material to adjudicate the issue of sanction. The prosecutor should assume full responsibility for representing the State in actions relating to criminal liability. The prosecutor should present an application concerning sanc- tion in all cases. The court should not be able to impose a more stringent penalty or a more restrictive sanction on the accused than requested by the prosecutor. should the court be able to order forfeiture of the grant of conditional release that is more restrictive for the accused than requested by the prosecutor. The application concerning sanction must always be stated in the prosecution papers. If the prosecutor considers that the appli- cation concerning sanction might be amended for a particular reason (e.g. because the investigation into the accused's personal circum- stances ought to be supplemented), the prosecutor may state this. Where there is reason to do so, it should be possible to amend the application while the case is being processed at the district court. It should be noted that it is the prosecutors final application that the court should not be able to go beyond. As a main rule, at the court of appeal and the Supreme Court, the prosecutor should not be able to adopt a more severe stance when amending their application concerning sanction. The court should not be able to make a decision on the special legal effect of a crime without there being an application. However, an exception is made in respect of those charges that should be imposed under Section 1 of the Act (1994:419). should it be possible for the court to go beyond what has been requested in such a matter, e.g. cannot order deportation for a longer period than as requested by the prosecutor. The prosecution papers should specify any applications for special legal effect that are pre- sented. It should be possible to amend the applications in the same way as the application concerning sanction. It should be possible for the aggrieved party to bring proceedings relating to criminal liability if the prosecutor does not institute a prosecution, discontinues a prosecution or chooses not to appeal when a prosecution is rejected. However, when the prosecutor brings an action concerning criminal liability, the prosecutor should be solely responsible for this action. The provision entitling the aggrieved party to assist with the prosecutors prosecution should be revoked. The aggrieved party should have good opportunities to have their claim for damages considered in conjunction with the criminal case. Furthermore, there ought to be improved opportunities for trans- parency in the procedure for the aggrieved party. We consequently present the following proposals: Following final service' of the papers on the suspect and his or her defence counsel under Chapter 23, Section 18 of the Code of Judicial Procedure, an aggrieved party should be entitled upon request to be informed about such details from the preliminary investigation that are relevant to the aggrieved party's action for a private claim. It should be possible in certain cases to limit the right to receive information subject to preliminary-investigation secrecy. As a main rule, the aggrieved party should be entitled to attend the main hearing before they are heard even if the aggrieved party does not bring an action in the case. The same should apply if the main hearing is held behind closed doors (in camera). We will introduce provisions clarifying that an aggrieved party, who is bringing an action for a private claim, may ask all of the questions that are relevant to enable the aggrieved party to protect their rights. Procedure at the district court Procedure in criminal cases that is adapted to need We propose that it should be possible to hear cases at the district court in different ways depending on the severity of the sanction requested by the prosecutor and the position adopted by the accused in relation to the prosecution. We therefore propose that different rules should apply to: 1.Cases in which the prosecutor requests that the sanction should be set as a fine. As a main rule, the prosecutor should issue a summary penalty order in these cases, regardless of the position adopted by the suspect regarding the criminal charge. The pre- paration of the case is to be simplified, e.g. a prosecution is instituted by submitting a summary penalty order to the court that has not been approved (see further below under Cases in- volving fines). 2.Cases in which the prosecutor requests a sanction correspon- ding to no more than six months imprisonment. Further delimi- tations are proposed if the prosecutor requests a sanction other than imprisonment. It should be possible to adjudicate these cases by applying a special procedure without a main hearing provided the accused admits to the acts to which the prosecution relates, approves of all applications being presented in conjunction with the prosecution and consents to the case being ruled on in this way. The court should check that the preconditions for the procedure have been satisfied and that there are no special reasons that call for a main hearing (see also below under Special procedure in cases where the commission of the offence has been admitted). 3.Cases in which the prosecutor requests imprisonment for more than six months, certain other sanctions and cases where the accused is under the age of 18. The ruling in these cases should always be made following a main hearing. Rulings in other cases should also, if requested, be made following a main hearing. We propose measures for these cases that are aimed at producing a procedure that is better suited to purpose combined with better preparation (see below under Cases involving main hearings). efficient institution of proceedings New provisions on how to institute public prosecutions Prosecutions are to be instituted by submitting the prosecution papers to the court in all cases where the prosecutor has not issued a summary penalty order. The prosecutor should simultaneously send or present the prosecution papers to the accused and order him or her to respond to the prosecution and the consequent applications presented. The accused should be urged to respond to the court no later than by a certain date. This means that a criminal case where the prosecutor institutes a prosecution should no longer be initiated by the court issuing a summons.1 The accused should receive further information depending on how the case is to be adjudicated. If the prosecutor considers that the case could be adjudicated by applying the special procedure, the accused should be urged to state whether he or she consents to such procedure being applied. It is important that the written material sent to the accused is worded so that it is easy to understand and that the accused can easily provide the information requested. The purpose of ordering the accused to respond to the prosecu- tion and the applications presented is to have early clarification of the positions adopted by him or her on the issues in question and to investigate whether there are opportunities to deal with the case in a simplified way. The accused, who is entitled to be passive, is not adversely affected by any sanction if he or she does not respond. 1 However, offences relating to freedom of the press and freedom of expression, which represent unusual kinds of case, are exempted from this under special rules incorporated into the act governing the procedure for such cases. When a statement is required under Section 1 of the Criminal Proceedings (Special Personal Case Study) Act (1991:2041) to pro- vide the prosecutor with an information base for their sanction application, the prosecutor should get this from the Prison and before the prosecution is instituted. The personal case studies should be further adapted to the require- ments of the individual case. The Prison and should submit a statement to the prosecutor within a shorter period than currently applies, following a less extensive investigation. This statement should state whether the Prison and Probation Service considers that a more extensive investigation is required. In that case the court may decide to supplement the investigation following institution of the prosecution. It should be permissible to use simplified service for serving the prosecution and other documents on the accused, as far as prac- ticable. Authorities within the legal system have a shared response- bility to ensure that this can be done. This implies that the person suspected of the crime ought to be kept continuously informed and reminded about the matter when he or she has contact with the , the Swedish Prosecution Authority or the Prison and Pro- bation Service. It should be possible for the prosecutor or court to utilise this means of service if the accused has been informed at a personal meeting that simplified service may be used by the prosecutor or district court and where it would not be inappropriate considering the circumstances of the case. No statutory time limit will be set concerning the length of time that may elapse after the accused was informed that simplified service might be used. A special procedure in cases where the commission of the offence has been admitted Under certain conditions it ought to be possible for a simplified pro- cedure without a main hearing to be used at court to adjudicate cases concerning a public prosecution in respect of acts that have been admitted by the accused to the court. The court should con- vene a main hearing if the case cannot be adjudicated in this way. It should only be possible to apply the special procedure if the accused has attained the age of 18 and neither the prosecutor nor the accused has requested a main hearing. The scope of application is otherwise determined by the prosecutors application concerning sanction. It should not be possible to adjudicate the case by applying the special procedure if the prosecutor has requested that the sanction should be set as: imprisonment for more than six months, a conditional sentence or probation if an alternative penalty that exceeds six months imprisonment is to be provided in the final judgment, probation combined with imprisonment, institutional care of young persons, or forensic psychiatric care. Restrictions are also imposed on the extent to which a grant of conditional release from a prison sentence may be forfeited. The implication of this is that the aggregate length of the penalty may not exceed six months imprisonment for it to be possible for the case to be adjudicated by applying the special procedure. The prosecution should specify whether the prosecutor considers that the case could be adjudicated by applying the special pro- cedure. The accused should receive information about his or her opportunities to receive the advice of an advocate and should be urged by the prosecutor to respond to the prosecution at the court and also state whether he or she consents to the case being adjudi- cated by applying the special procedure without a main hearing. If the accused submits a response to the court, the court may adjudicate the case by applying the special procedure if the accused: has been informed about his or her right to receive the advice of an advocate, admits the act or acts to the court, accepts the sanction requested by the prosecutor and the other applications presented in conjunction with the prosecution (e.g. private claims), and consents to the case being adjudicated in this way. The court should check that the preconditions for the procedure have been satisfied and that there are no special reasons requiring a main hearing to be held. Examples of such situations include when the accuseds admission is ambiguous or the court considers that a further investigation is required concerning the accuseds personal situation or health status. Other examples are when the court con- siders that, in the light of judicial practice, the application con- cerning sanction is manifestly too stringent or the title of the offence is incorrect. Cases applying the special procedure should be adjudicated by a legally qualified judge, and a simplified form of judgment may be issued. An appeal may be made against the judgment in accordance with the normal rules. The provision enabling the prosecutor to issue a summary penalty order relating to a conditional sentence should be revoked as a re- sult of the introduction of a special procedure for cases where the commission of the offence has been admitted. A prosecutor should issue a summary penalty order in respect of a fine irrespective of the position adopted by the suspect. As a main rule, the prosecution should be instituted by submission of the summary penalty order to the court in the event that the summary penalty order is not approved. The summary penalty order should consequently contain the information that needs to be included for the prosecution. In conjunction with a summary penalty order being issued for approval within a fixed period, the suspect should be afforded an opportunity to, in the event that the order is not approved, respond in writing to the prosecution, state the evidence to be adduced, con- clude the action and express his or her views on the issue of whether the case may be adjudicated by the court without a main hearing. The response from the suspect should be sent to the prosecutor. The prosecutor should submit any response to the court simul- taneously with the prosecution being instituted. Cases concerning offences involving fines for which the com- mission of the offence has been admitted to the court may be dealt with in accordance with the special procedure for cases where the commission of the offence has been admitted. It should be possible at the district court to adjudicate other cases, with or without a main hearing, in the same way as today. By way of clarification, a provision will be introduced clarifying what constitutes material included within the proceedings when a criminal case is adjudicated without main hearing. This should state that records or notes from the preliminary investigation may only form the basis of the adjudication to the extent that the informa- tion has been adduced by either of the parties. Cases involving main hearings Joint processing of prosecutions and part-judgments, etc. The court should assume clearer responsibility for assessing whether several prosecutions or charges are to be processed within the same trial and adjudicated at the same time. It is important to reduce the number and scope of major cases and to avoid any unnecessary delays in the adjudication of a prosecution because another case cannot be adjudicated at the same time. These provisions are formulated so that the assessment of the court is based on what is appropriate and advantageous for the pro- cedure. When making this assessment, the court should take parti- cular account of whether there is a risk of joint processing leading to the trial becoming more extensive than necessary. If a need arises when a case is being dealt with, it ought to be possible to separate prosecutions that are being processed jointly so that they can be processed separately. It ought to be possible to do this either by dealing with the prosecution as different cases or by issuing a part-judgment. The solution to be chosen is purely a practical issue. This therefore amends the current provision con- cerning when part-judgments may be issued in the case of several prosecutions against an accused. In such cases a part-judgment may be issued if this is advantageous for the processing of the case or there are otherwise special reasons to do so. The possibility is introduced for the district court to refer a question of precedential interest in a criminal case to the Supreme Court, subject to the consent of the parties. In all cases, the requirement for applications presented being speci- fied at the time the prosecution is instituted and the accused being ordered to respond to these applications improves the of the positions adopted by the parties being established at an early stage. The requirement for the prosecutor to obtain a statement of views from the Prison and where this is required increases the of there being a sufficient information base regarding the accuseds personal circumstances at the time of adjudication. These measures ought to be sufficient for most cases. However, further preparatory work under the guidance of the court may be required in extensive and complicated cases. We present several proposals, the aim of which is to improve preparatory work for such cases: The responsibility of the court to make efforts to ensure that criminal cases are prepared so that they can be adjudicated in a way better suited to purpose and to actively provide material guidance regarding procedure in the course of the preparatory work should be expressly governed by statute. A rule should be introduced prescribing that preparatory meetings are to be held in cases that are, or are expected to become, extensive. An opportunity should be introduced for the court to hold pre- paratory meetings during the period between final serving of the preliminary investigation and institution of the prosecution. Provisions should be introduced clarifying that preparatory work may, when necessary, also be conducted through an exchange of correspondence or in some other way. The final deadline for when a main hearing is to start in a case where the accused is being detained or is under the age of 18 should be extended if a preparatory meeting needs to be held. An express provision will also be introduced stating that the main hearing may be initiated later – subject to the consent of the accused – if the investigation into his or her personal circum- stances has not been completed. Simplified handling of prosecutions where the commission of the offence has been admitted It should be possible for individual charges to be dealt with in a simplified way when making a ruling following a main hearing, sub- ject to the consent of the parties, provided the accused admits to the act after the prosecutor has presented their applications. The parties do not need to amplify on their actions and present evidence in the relevant respects if this is manifestly unnecessary considering the substance of the act and other circumstances. It should be a prerequisite here that the matter relates to an act that could have been adjudicated by applying the special procedure if the prosecution had just been related to that act. Adjudicating cases in the absence of the accused The opportunities to adjudicate a case when the accused has not attended the main hearing, despite having been served with a summons to attend, are to be extended. The provisions should also be made clearer. It is also a precondition according to the current provision that it is possible to conduct a satisfactory examination of the matter, irrespective of the prospective sanction. This will be amended so that the case is adjudicated unless there are special rea- sons not to do so. The upper limit for the length of the prison sentence that may be imposed at hearings where the accused fails to appear is increased from three to six months. As regards sanctions other than imprison- ment, we will introduce restrictions largely corresponding to those for the special procedure. A ruling in a case may not be made in the absence of the accused if this involves setting the sanction as: imprisonment for more than six months a conditional sentence or probation in the event that an alter- native penalty that exceeds six months imprisonment is to be provided in the final judgment, probation combined with imprisonment, or institutional care of young persons. If the matter involves forfeiting a grant of conditional release, the case cannot be adjudicated in the absence of the accused if there is any question of forfeiture for more than six months or if the time to be forfeited and the new prison sentence to be imposed jointly exceed six months. In situations where accused fails to appear, the request for sanction made by the prosecutor should also be decisive to the assessment. Cancelled hearings have negative consequences for both individuals and the legal system. Our proposal to amend the rules on service and increase the opportunities to adjudicate cases in the absence of the accused ought to result in a reduction in the number of main hearings that need to be cancelled. The same applies to our pro- posal to amend the part-judgment rules and clarify the provisions on when several prosecutions should be processed jointly. In addi- tion to this, we propose clearer provisions on the sanctions and coercive measures that should be used by courts to ensure that main hearings are actually held. Provided there is no lawful excuse for non-attendance, the court should judicially confirm the default fine set and, provided there are no special reasons not to do so, decide to collect the person who failed to appear if the case cannot be adjudicated without his or her presence. If the accused has not appeared and it is unlikely that it would be possible to collect him or her, the court should order that the accused be detained instead, provided the necessary conditions are met. The court should otherwise decide to summon the person who failed to appear to reattend on pain of a default fine. It is important that and ongoing work is conducted at courts to ensure that hearings do not need to be cancelled. This in- volves, among other things, using modern technology for reminders, addressing issues linked to action that can be taken to avoid main hearings being cancelled and working on reception and security issues. hearings held jointly with detention hearings A possibility will be introduced for holding a main hearing jointly with a detention hearing provided a prosecution is instituted no later than at the meeting and subject to the parties consent. In such cases, the suspect should be summoned to the main hearing in con- junction with the request for his or her appearance. We deal with this proposal in Section 9.5.3. Procedure at the court of appeal The main function of the court of appeal is to examine and review rulings made by district courts and correct any mistakes in such rulings. The parties control what the court of appeal should con- sider by appealing against and indicating in their appeals the issues in question in the district court ruling. Reviews at the court of appeal ought to be arranged so that cases appealed against are considered to the extent and in the forms required for the individual case. We make several proposals, the aim of which is to make the procedure at the court of appeal better suited to purpose, based on these points of departure: In addition to the current provisions, an appeal should also in- clude information about which parts of the district court ruling are not at issue as well as a statement of views by the appellant concerning the processing of the case. While the case is being prepared, the court of appeal ought to ensure that the positions adopted by the parties are clarified. The system of leave to appeal should be extended to encompass all criminal cases. In this way, clear and unambiguous cases can be sifted out, i.e.