sou · H2B386 · 2014-12-19 00:00:00 — Vår bedömning är dock att de nuvarande be- loppsgränserna för när åklagare ska yttra sig och för när Justitie- kanslern ska underrättas om ersättningsanspråk bör behållas. Ersättningarna till konkursförvaltare har ökat mått- ligt och har inte varit särskilt kostnadsdrivande på anslaget. Arvode och kostnadsersättning till en konkursförvaltare är en konkurskostnad som i första hand ska betalas ur konkursboet. Om en konkurs avskrivs enligt 10 kap. 1 § konkurslagen (1987:672) på grund av att konkursboets tillgångar inte räcker till betalning av konkurskostnaderna, får konkursförvaltaren ersättning av staten enligt en särskild konkursförvaltartaxa. Om uppdraget har krävt avsevärt mer arbete än normalt kan ett högre arvode beslutas och betalas ut till förvaltaren. Arvodet följer i dessa fall inte ett tim- arvoderingssystem med en timkostnadsnorm. I stället ska rätten bestämma en skälig ersättning med hänsyn till det arbete som upp- draget har krävt, den omsorg och skicklighet som det har utförts med samt boets omfattning. Vi har övervägt om ett timarvoderingssystem för konkursförval- tare ska införas. Enligt vår uppfattning passar inte ett timarvoderings- system särskilt väl i konkurssammanhang. Förhållandena i kon- kurserna skiljer sig från andra situationer där rättsliga biträden ersätts med statliga medel. En potentiell fara med att införa ett timarvoderingssystem är enligt vår uppfattning att det skulle kunna få negativa konsekvenser för möjligheten att efterforska brotts- misstankar och återvinningsmöjligheter. Det är inte heller givet att ett timarvoderingssystem i längden skulle innebära en kostnads- besparing för staten. För konkurshanteringen finns också ett väl utbyggt system för kontroll och tillsyn. Vår bedömning är att ett timarvoderingssystem för konkursförvaltare inte bör införas. I stället föreslår vi att befintlig taxa utökas till att omfatta 16 timmars arbete och att i taxan ska ingå ersättning för en och en halv timmes tidsspillan. Förslaget innebär att fler konkurser än kommer att inrymmas under det taxesatta området. Det kan antas att denna förändring eliminerar den lilla kostnadsökning som ändå ägt rum utan att förändringen leder till de nackdelar som införandet av en timkostnadsnorm skulle kunna inne- bära. Lagändringarna föreslås träda i kraft den dag regeringen bestäm- mer. Vissa övergångsbestämmelser föreslås beträffande förslagen till skärpt återbetalningsskyldighet för dömda och rörande rättshjälp. Ett genomförande av de förslag vi lämnar kommer sammantaget inte att innebära några kostnadsökningar för det allmänna. Snarare indikerar våra beräkningar ett visst ökat ekonomiskt utrymme, även vid en höjning av inkomstgränsen för rättshjälp. De ekonomiska konsekvenserna är emellertid svårbedömda och bygger på upp- skattningar. Flera av de föreslagna ändringarna kommer att kräva utbildning av och information till personal inom rättsväsendet. Dessa kost- nader har bedömts rymmas inom befintliga anslag. Likaså kommer en del av förslagen att medföra vissa utvecklingskostnader för framför allt . Om våra förslag genomförs bör de uppskattningsvis medföra en kostnadsminskning inom ramen för anslaget 1:12 Rättsliga biträden m.m. med cirka 16–, efter avräkning för kost- nader för en höjning av inkomstgränsen för rättshjälp. Utan avräk- ning för kostnader för en höjning av inkomstgränsen kan kostnads- minskningen beräknas till . Förslagen om en skärpning av återbetalningsskyldigheten för dömda beräknas sammanlagt ge ökade intäkter för det allmänna om . Dessa ökade intäkter tillgodoförs emellertid inte anslaget för rättsliga biträden. Medel som staten får in på grund av återbetalningsskyldighet redovisas nämligen mot inkomsttitel Övriga inkomster av statens verksamhet. Om våra förslag genomförs bör de alltså sammantaget medföra besparingar för det allmänna om totalt cirka 43–inklusive avräkning för höjd inkomstgräns för rättshjälp. Utan sådan avräkning kan besparingarna beräknas till . Our remit was to conduct an overall review of the expenditures financed through appropriation 1:12 Legal counsels, etc. We have been instructed to consider what measures can be taken that could have a cost-limiting effect on the appropriation. Within the context of this review, we were tasked more specifically with: looking into whether it is justified to limit to any extent access to public defence counsel and injured party counsel in certain cases; considering a tightening of the rules concerning the repayment obligation for convicted persons; proposing limits to the possibility of changing public defence counsel; considering adjusting the income ceiling and the fees for legal aid; proposing different levels in the hourly rate system for public defence counsels and injured party counsels; proposing time limits in the hourly rate system for injured party counsels; proposing increased use of standard remuneration, a tariff, in criminal cases; and proposing an hourly rate system for receivers in bankruptcy. An initial starting point for us was that the appropriation is intended to safeguard legal security for both the accused and the victims of crime. This includes safeguarding the right to a fair trial. The system is also intended to help maintain public confidence in the judicial system, which is fundamentally important in a state governed by the rule of law. In the Inquirys view, society has an obligation to provide support to both suspects and victims of crime, in accordance with their needs, in the form of qualified legal support, both to create a balance in the process and to meet the requirements of a fair trial. This view has very much influenced our considerations. Another starting point was to also examine all possibilities for making savings, as long as this does not result in unacceptable con- sequences for the individual. The question of whether it is reason- able for the State to contribute to paying costs should always be subject to examination. Several legal instruments and conventions linked to these issues have been drawn up in the EU and in other international coopera- tion. Two examples that can be mentioned are the EU Charter and Convention for the Protection of Human Rights and Fundamental Freedoms. Directive 2013/48/EU of Parliament and of right of access to a lawyer in criminal proceedings, etc. should also be mentioned in this context. Such documents have also underpinned our considerations. The costs to society of public defence counsels are considerable and have risen sharply in recent years. This sharp increase can be assumed to have several causes. The number of criminal cases brought be- fore the courts has risen and the nature of the cases has changed. Cases have become more extensive and complex. Processing times have increased. New technology has given rise to new types of offences. Developments have created new platforms of crime. cases are now family-related. The number of priority cases has in- creased. The trends in cases before Swedish courts are also a result of the investments made in the judicial system. and more crimes are being reported and investigated. Particularly costly are efforts to combat organised crime, which have led to increases in costs. In- creasingly extensive and complex criminal cases are requiring in- creased investments in defence counsels. Our conclusion with regard to the rise in costs for public defence counsels is that it has essentially been caused by what can be regarded as inevitable consequences of trends in crime and other circumstances that cannot be attributed to the existing regulatory framework. There is nothing to indicate that the current provisions are not essentially being applied as intended. Against this back- ground, we consider that the provisions on the situations in which a public defence counsel is to be appointed are well-balanced. There- fore, we do not propose any amendments. There are currently no legislative rules concerning the possibility of changing public defence counsel. Changing public defence counsel entails additional costs as the new public defence counsel has to become familiar with the case. For other counsels, e.g. legal aid counsels, there are explicit provisions on changing counsel. We there- fore propose the introduction of an explicit provision on changing public defence counsel. We do not envisage any amendment to current established practice concerning change of public defence counsel. Since 2004, the percentage increase in the costs for injured party counsels has been greater than the increase in the number of crimi- nal cases concluded. The rate of increase has been high and rela- tively stable. The costs to society of injured party counsels are con- siderable. Here too, this sharp increase in costs can be assumed to have several causes. The number of reported crimes in which an injured party counsel is usually appointed has risen. A new cate- gory of crime is internet-related crime involving sexual elements. Injured party counsels are normally appointed in such cases, which often involve several injured parties. Injured parties now receive better information about their right to an injured party counsel. Some of the increase during the period can be explained by the amendments made in 2005 to the sexual offences legislation. Although there are explanations for the rise in costs and the in- crease in the number of injured party counsels appointed, some per- ceive that injured party counsels are sometimes appointed somewhat routinely and that the criteria for appointing an injured party coun- sel are not fully considered. It is important that the resources of the judicial system are concentrated to situations in which the in- jured party has a real need of counsel. Therefore, to address the importance of a proper examination being carried out in each indi- vidual case, we propose certain amendments to Section 1 of the Injured Party Counsel Act. The modern court proceedings reform has led to a gene- ral reduction in injured parties needs during court proceedings in the court of appeal. We therefore propose that an injured party counsels appointment should end once the time limit for appealing the judgment of the district court has expired. If the injured party so wishes or if there are other grounds for doing so, a new exami- nation should be carried out to determine whether or not an in- jured party counsel should be appointed for proceedings in a higher court. To ensure that only people who are suitable for the assignment are appointed as injured party counsels, we propose the introduce- tion of a special provision stating that the courts permission must be sought in all cases of substitution of an injured party counsel in a main hearing. The court will thus be able to determine in indi- vidual cases whether substitution is appropriate. Income ceiling and fees for legal aid Currently, legal aid may be granted to people whose economic basis does not exceed 000. According to available statistics, this means that approximately 43 per cent of the population are currently eligible to receive legal aid. When the 1996 Legal Aid Act entered into force, it was expected that the income ceiling would be reviewed at regular intervals. A suitable guideline given was that a review be carried out every three years, although there could be certain occasions where there would be grounds to deviate from this. current income ceiling has applied since 1999. In light of this, we propose that the income ceiling for eligibility for legal aid be raised to 000. This proposal means that approximately 80 per cent of the population will be eligible to receive legal aid. We do not propose any change to the way in which legal aid fees are calculated. A person who has been granted legal aid must also pay a legal aid fee in the future. This fee is determined by the costs of the legal aid counsel and the applicants economic basis. How- ever, we propose that an additional level be included in the fee system and that the fee, and the minimum fee, be changed at the different levels. Moreover, we propose a raise in the deduction for children when calculating the applicants economic basis. To enable more effective cost control, we propose that the Government instruct the to look into the possibility of developing the data systems of the Legal Aid Authority. From what we have learnt, cases involving inexperienced and unqualified legal aid counsels tend to take longer and cost more than cases involving experienced and qualified counsels. There should be more careful checks of the people being appointed legal aid counsels. We do not propose any change to the rules regarding who should be eligible for appointment as legal aid counsel. The aim of guaranteeing, as far as possible, that legal aid counsels are sufficiently qualified should be achieved by those appointing coun- sels carrying out more careful checks of the counsels qualifications. If the legal aid system is to function and if those entitled to legal aid are to receive it, it is important that the regulatory framework concerning the fees system is observed. and the courts should therefore ensure that the people at the courts responsible for processing legal aid appli- cations receive the relevant training and guidelines for processing such applications. For legislative reasons, we propose an amendment to Section 19 of the Legal Aid Act. No amendment to the substance is intended. Repayment obligation for convicted persons The provisions on the repayment obligation for convicted persons are often applied far more generously than warranted by the regu- latory framework. This entails increased costs for the State. To make it easier for the courts to deal with the repayment obligation correctly, we propose the development of systemic support. The issue of sys- temic support should be left to the Swedish National Courts Admini- stration to investigate. In addition, we propose making the repayment obligation for con- victed persons more stringent in various ways. However the link to legal aid legislation should be kept. We propose introducing a minimum level for the repayment obli- gation for people convicted of crimes. The amount the convicted person is to repay for the costs of public defence counsel – and where relevant certain other counsels – should not fall below 000. However, the amount to be repaid must never exceed the costs. The possibility of adjusting the repayment will be kept, but it should only be possible to adjust the repayment down to the minimum amount at the lowest. The minimum amount should not apply if the convicted person has not reached the age of eighteen on the date of the judgment or if the convicted person was suffe- ring from a serious mental disturbance when he or she committed the crime. The repayment obligation should also apply in proceedings con- cerning the setting aside of a penalty and the imposition of another penalty for a crime, or concerning another measure relating to an imposed penalty. We propose a special provision stating that a defendant is to reimburse the State for all of the costs paid from the public purse for remuneration to public defence counsels, and where relevant other counsels, in the higher court if the case has lapsed due to circum- stances attributable to the defendant. However, this should not apply if the defendant was lawfully absent and it was not possible to report the absence in time, or if the case is reinstated. It is proposed that the repayment obligation for convicted per- sons also cover samples taken to carry out DNA analysis when investigating a crime. The person in charge of the preliminary investigation is to in- form the suspect of the provisions that apply concerning the repay- ment obligation. Remuneration for public defence counsels and injured party counsels In light of the increase in costs for public defence counsels and injured party counsels, there is reason to consider ways of costs down. One way of costs down could be to have diffe- rent standard hourly rates for public defence counsels and injured party counsels. Likewise, a restriction in the hourly rate system for injured party counsels could be considered. In our assessment, different standard hourly rates for public defence counsels and injured party counsels should not be intro- duced. One argument against having different rates is that this could make it more difficult to find qualified lawyers willing to take on the task of injured party counsel. Moreover, lower remuneration for injured party counsels than for public defence counsels does not sit well with general developments in terms of support for the victims of crime. It is not appropriate to generalise and assert that the tasks of an injured party counsel are less skilled than those of a public defence counsel. It is also necessary to highlight the risk that different standard hourly rates would jeopardise the continued supply of lawyers specialising in law governing individuals. We do not consider that a restriction should be introduced in the hourly rate system for injured party counsels. This kind of rule is not appropriate for criminal proceedings, which are very different from civil proceedings. In criminal cases, the primary interest is for the State to prosecute people for crimes. Criminal proceedings are largely steered by the prosecutor and the defendant. In many cases, the injured party and the injured party counsel do not have any influence over proceedings. We have investigated whether the area covered by the tariff could be broadened. We propose that the current criminal case tariff be extended to cover two accused persons with the same counsel or one counsel each and/or two injured parties with the same defence counsel or one defence counsel each. This kind of tariff would probably result in cost reductions for the State, or it would at least mitigate any cost increases. It would also facilitate the processing of cases for courts and counsels. We propose that the be tasked with broadening the tariff. We have considered whether it would be suitable to extend the current tariff to cover full-day cases, i.e. cases in which the main hearing lasts up to six hours. However, we have decided not to submit such a proposal, primarily because the studies upon which the tariff is based are very old and do not reflect changes in the legal environment brought about by the modern court pro- ceedings reform, for example. In our view, introducing a full-day tariff may have advantages. We have considered whether one way of improving cost control with regard to counsel fees would be for decisions on remuneration for counsels to be taken separately and not in connection with a judgment or decision in a case. Remuneration issues would thus be given greater attention and receive the time necessary for a thorough examination. However, this kind of system would involve some inconveniences. Processing would inevitably become more compli- cated, for example. In light of this, we consider that the current provisions should be kept. Effective cost control is a prerequisite if the costs of legal coun- sels are to be kept at a reasonable level. We have therefore con- sidered whether there is reason to extend the cost control carried out by the State with regard to the remuneration of legal counsels. We have considered whether there is reason to allow prosecutors to have a greater say in remuneration claims than is currently the case and whether the obligation to inform the Office of the Chancellor of about awarded remuneration should be extended. In our assessment, the current ceilings for when a prosecutor is to express an opinion and when the Office of the Chancellor of is to be informed about remuneration claims should be kept. Remuneration for receivers in bankruptcy Remuneration for receivers in bankruptcy has increased moderately in recent years and has not driven up the cost of the appropriation to any great extent. Fees and reimbursement of expenses to a receiver are a bank- ruptcy cost that should primarily come from the bankruptcy estate. In cases in which bankruptcy is written off in accordance with Chapter 10, Section 1 of the Bankruptcy Act (1987:672) because the assets of the bankruptcy estate are not sufficient for paying the costs of the bankruptcy, the receiver may receive remuneration from the State in accordance with a special receiver tariff. If the assignment required considerably more work than normal, a higher fee can be set and paid to the receiver. In such cases, the fee does not follow an hourly rate system with a standard hourly rate. In- stead, the court is to decide on a reasonable level of remuneration, taking into consideration the work required for the assignment, the care and skill with which it has been carried out and the size of the estate. We have considered whether an hourly rate system should be introduced for receivers. In our view, an hourly rate system is not very suitable for bankruptcy cases. The circumstances of bank- ruptcies differ from other situations in which legal counsels are remunerated from State funds. In our view, one potential risk of introducing an hourly rate system is that it might negatively affect the possibility of investigating suspicions of crime or recovery. It cannot be taken for granted either that an hourly rate system would bring savings for the State in the long run. There is also a well- developed system for checks and supervision when handling bank- ruptcies. In our assessment, an hourly rate system for receivers in bankruptcy should not be introduced. Instead we propose that the current tariff be extended to cover 16 hours work and that the tariff include remuneration for a time loss of one and a half hours. This proposal means that more bank- ruptcies will be included in the area covered by the tariff than is currently the case. It can be assumed that this change will eliminate the minor increase in cost that has occurred in recent years, with- out the change resulting in the disadvantages that the introduction of a standard hourly rate may entail. Entry into force, etc. It is proposed that the legislative amendments enter into force on a date determined by the Government. We propose certain transitional provisions concerning the pro- posals for a stricter repayment obligation for convicted persons and concerning legal aid. On the whole, the implementation of the proposals we have made would not cause any increase in costs for the public purse. Rather, our calculations indicate a certain amount of increased financial scope, even if the income ceiling for legal aid is raised. However, the financial consequences are difficult to assess and are based on estimates. Several of the proposed changes will require training and infor- mation for staff in the judicial system. We consider that these costs can be covered by the current appropriations. In the same way, some of the proposals will entail development costs, primarily for the . If our proposals are implemented, they are estimated to bring savings within the framework of appropriation 1:12 Legal counsels, etc. of approximately –19 million per year, after deducing the costs of raising the income ceiling for legal aid. Without deducting the costs of raising the income ceiling, the savings can be estimated to amount to approximately million. The proposals on a stricter repayment obligation for convicted persons are estimated to provide increased revenue for the public purse of approximately million. This increased revenue will not go to the appropriation for legal counsels. Funds that the State receives on account of the repayment obligation are reported against income heading 2811 Other income from central government acti- vities.