sou · H9B335 · 2022-01-01 00:00:00 — With respect to witnesses of crimes in vulnerable areas, the usual reasons for silence are fear of threats and violence, that a com- plaint will lead to no result, and lack of confidence in the Authority and other public authorities. In light of the structure of the problems, we proceed based on a broad definition of the concept of criminal networks. Proposals are focused on measures to counter collaboration between individuals as regards criminal activity which creates insecurity in society. As a rule, criminal activity is based on a to earn money, particularly through the sale of narcotics. Perjury, obstructing the course of and protecting a criminal A well functioning legal process is required to counteract crimes committed within the scope of criminal networks, and also crimes in general. Penal provisions regarding perjury, obstructing the course of and protecting a criminal play an important role in this context. With respect to perjury (Chap. 15, sec. 1 of the Penal Code), the penalty for a normal grade offence is imprisonment for at most four years. If the offence is minor, a fine or imprisonment for at most six months is imposed, and if the offence is gross, imprisonment for at least two years and at most eight years is imposed. We believe that the penal scale, with all degrees of severity in- cluded, is essentially well-balanced. On the other hand, it is clear that sentencing in respect of the offence is excessively compressed – the penalty is generally set at imprisonment of between one and four months and the penal scale for gross perjury is not applied at all. In light of this, we believe that the section should be amended with the aim of achieving a greater difference between sentencing in respect of the most serious and less serious offences. We propose, therefore, that a new qualification principle shall be inserted into the provision regarding gross perjury which is aimed at offences that are commit- ted with the intention of preventing the investigation or prosecution of a serious offence. “Serious offence” means a crime which has, or can be assumed to have, a penal value of at least two years’ imprisonment. The changes to the qualification principles can be expected to lead to the provision regarding gross perjury – contrary to what now is the case – will be applied in practice, which will result in a serious sharpening of penalties for the most serious cases of perjury, e.g. when someone provides a false alibi regarding a person suspected of murder. In order to allow for more nuanced assessments and to avoid threshold effects, we propose however that the minimum sentence for gross perjury be reduced from two years’ imprisonment to one year and six months’ imprisonment. To avoid excessively large overlaps between the penal scales for gross offences and normal grade offences, we also propose that the maximum sentence for the latter offence be reduced from four years’ imprisonment to three years’ imprisonment. If the changes we propose are carried out, they can be expected to result in the sentencing level for more serious cases of perjury being tripled compared with the situation today. We also propose that conspiracy to commit perjury, which consists of someone in consultation with another deciding on the offence or undertaking or offering to commit it – which among other things may take place within the scope of criminal networks – should be criminalised. The proposal to change the penal scales for perjury means that the penal scales for the crime of making an untrue statement before a Nordic court (Chap. 15, sec. 4 a the Penal Code) and an untrue statement before an international court (Chap. 15, sec. 4 b the Penal Code) which refer to the perjury provision, will be changed. In appendix 2, we provide an alternative proposal for amend- ments to the penal scale for perjury, entailing that the minimum sentence for a normal grade offence shall be increased to six months’ imprisonment and that the maximum sentence for a minor offence shall be increased to one year’s imprisonment. The penal scales for obstructing the course of (Chap. 17, sec. 10 the Penal Code) correspond to the penal scales for perjury. In contrast to the case of perjury, the penal scale for the gross offence is applied to some extent. However, we believe that certain types of threats have a higher penal value than expressed by the provision. In order that such offences be punished more severely than is the case at present, we propose that the current qualification principle for a gross offence, entailing that the offence has included a threat of a serious kind, be replaced by a more specific qualification principle; when assessing whether an offence is gross, special con- sideration shall be given to whether the offence has involved a threat was substantially reinforced with the aid of a weapon, an explosive or a dummy weapon or by allusion to a capacity for violence, or that was otherwise of a serious kind. This is expected to lead to more crimes being deemed gross. Obstructing the course of is a crime of such a serious nature and has such a high abstract penal value that, in our opinion, the penalty should be at the level of imprisonment. Therefore, we propose that the special grade for minor obstructing the course of be deleted. In appendix 2 we provide an alternative statutory proposal. The proposal entails that the minimum penalty for normal grade offences be increased to six months’ imprisonment, that fines be deleted from the penal scale and that a special grade be introduced for offences that are to be deemed less serious, with a penal scale of imprisonment for at most one year. With respect to protecting a criminal (Chap. 17, sec. 11 the Penal Code), the penalty is a fine or imprisonment for at most one year. If the crime is gross, the sentence is imprisonment for at least six months and at most four years. A person who did not realise but had reasonable cause to assume that the other person was a criminal shall be sentenced to a fine. Responsibility is not assigned if the offence is considered to be minor taking into consideration the perpetrator’s relationship to the offender and other circumstances. Just as with the penal provisions regarding perjury and obstruction of , the sentencing provision is aimed at measures that not infrequently occur within the scope of criminal networks. The penal scale for pro- tection of criminals is, however, clearly lower than for perjury and obstructing the course of . It should therefore be sharpened. We propose that the maximum penalty for normal degree offences be increased to two years’ imprisonment. For gross offences, we propose that the minimum penalty be increased to one year of im- prisonment and that the maximum penalty be increased to six years’ imprisonment. In addition, it is proposed that gross offences be designated a separate crime, namely gross protecting a criminal. We also propose that two qualification principles be introduced regarding a gross offence: particular consideration should be given to whether 1) there has arisen or is a risk of considerable detriment to the public; or 2) the offence otherwise has been of a particularly dangerous nature. In the provision regarding minor offences it should also be stated that consideration will be given to the offence which the person afforded protection is considered to have committed; if he or she has committed a very serious crime, as a starting point protecting a criminal cannot be regarded as a minor offence. Offences in the planning stage for protecting a criminal are not criminalised. In our opinion, such offences can occur, not least within the scope of criminal networks. We therefore propose that attempt, preparation and conspiracy to protect a criminal, and gross protecting a criminal be criminalised. In appendix 2 we provide an alternative proposal for amendment of the penal scales regarding protection of criminals which, in addition to the proposals that we present, entails that fines will be deleted. We have considered the need for amendments with respect to witness statements provided during preliminary investigation. Such information can be provided before an indictment is brought or when the criminal case is being adjudicated by a court. The question has arisen as a result of the outcome of the decision in the “Alibit” case reported in NJA 2019 p. 294, where the Supreme Court held that it is not punishable, as protecting a criminal, to provide false statements in questioning to the advantage of someone who is suspected or convicted of a crime, when it can only affect the status of the evidence against the person. Criminal liability can only arise if the witness has made the statements under oath. 23, sec. 13 of the Code of Judicial Procedure there is a possibility to question witnesses during the preliminary investigation. Such questioning may take place if, among other things, anyone in questioning refuses to make a statement concerning a matter of importance to the inquiry or if it is otherwise of extraordinary im- portance to the inquiry that a person who is obliged to testify as a witness already while the preliminary investigation is still in progress. To hold such questioning, the preliminary investigation must have proceeded so far that someone can reasonably be suspected of the offence. The provision is intended to be applied in exceptional cases and is very rarely used. The Swedish Prosecution Authority has, among other things, stated that with respect to the suspect’s witnesses, they are often invoked so late in the investigation that there is nothing to be gained from holding an examination of a witness during the preliminary investigation. According to the Authority, this can also lead to adverse consequences for the criminal investigation since the suspect is entitled to be present during the questioning. We believe that there are no reasons to amend the provision in Chap. 23, sec. 13 of the Code of Judicial Procedure. The use to a greater degree of the possibilities that allow for examination of wit- nesses during the preliminary investigation might, in certain cases, constitute a tool in investigations of crimes that are committed within the scope of criminal networks. This is particularly the case where the suspect has invoked a witness who is of key importance for the investigation, e.g. an alibi witness. If a person provides false statements in a examination after an indictment has been brought, as a general rule, he or she can testify in court subject to criminal responsibility. With respect to incorrect information that is provided after the Court of Appeal’s judgement, in light of the very restricted possibilities to obtain leave to appeal in the Supreme Court, such have been considered to have very possibility to influence the outcome of the case. We therefore believe that there is no reason to create a special provision exclusively for this situation. Mitigation of a sentence for assisting in investigation of a crime committed by another person The system of sanctions is based on the principles of proportionality, equivalence and foreseeability. The starting point when choosing a sanction is the penal value of the crime or the total criminality. To a certain extent, however, individual consideration can be given in accordance with the so-called reasons of fairness set forth in Chap. 29, sec. 5 of the Penal Code. Such consideration is aimed pri- marily at circumstances which are regarded as “unfair not to con- sider”. Among other things, there is a possibility to take into ac- count that the accused has assisted in the investigation of her or his own criminal behaviour. As a starting point, regulations whereby a perpetrator’s assistance in the investigation of crimes committed by another can be taken into account in sentencing does not violate Article 6 of Convention (the right to a fair trial). Most of countries from which we have obtained information, including and , have regulations whereby an accused can obtain a milder sentence in exchange for information regarding a crime committed by another person. Experience from and also shows that the provisions are applied. The question of introducing such an arrangement as allows for mitigation of sentence in exchange for information about crimes committed by another has been addressed in a number of public investigations. However, no such proposal has been presented. An arrangement which allows for the possibility of mitigation of a sentence in exchange for information regarding crimes committed by another is primarily justified based on consideration of efficacy. The fact that a suspect can obtain mitigation of sentencing in exchange for information about a crime committed by another can be expected to increase the incentive for him or her to cooperate with authorities investigating crimes. It can thus also contribute to more serious and difficult crimes being investigated and solved and more individuals being prosecuted. Based on an injured party perspective, it is probably irrelevant whether the information which leads to a crime being investigated and solved is derived from the person who committed the offence or from someone else. Furthermore, there are reasons to assume that in many cases it is very difficult to distinguish between what is in- formation of importance for the investigation of one’s own and another person’s criminality, which argues against drawing any distinction between such information. A distinct crown witness system in which a suspect can negotiate freedom from indictment or where the prosecutor has a possibility to or partially bind the court on the issue of sentencing is questionable from a number of aspects. It would reduce the role of the courts as a control body and may lead, among other things, to a risk of the principal of equality of treatment being set aside. How- ever, these consequences will not be the result of an arrangement whereby the court, in sentencing, can take into consideration the accused’s contribution to investigating a crime committed by another person. All in all, we believe that there are preponderant reasons in favour of the introduction of an arrangement which provides a possibility, when sentencing, to take into consideration the fact that the accused has assisted in the investigation of serious criminality committed by some other person. We therefore propose the insertion of a new section –sec. 5 a – in Chap. 29 of the Penal Code, which states that the court shall, when determining a penalty, in addition to the penalty value of the crime shall also, to the extent reasonable, take into account whether the accused has provided information which is of significant importance for the investigation of a crime committed by another for which a milder sentence than six months’ imprison- ment is not prescribed. The aforesaid shall apply also to attempt, preparation or conspiracy to commit such crimes if the offence is punishable. In order to increase the foreseeability for a suspect who wishes, or might conceivably wish, to cooperate with the law enforcement authorities, he or she should at an early stage receive information regarding the possibilities for mitigation of sentence. We therefore propose the insertion of a new section – section 12 c – in the Preliminary Investigation Ordinance, providing that a person who is reasonably suspected of a crime for which a milder sentence than six months’ imprisonment is not prescribed, or of attempt, preparation or conspiracy to commit such crimes, shall be notified of the con- ditions for mitigation of sentence pursuant to Chap. 29, sec. 5 of the Penal Code. If a suspect declares that he or she is prepared to assist in the investigation of a crime, the investigation should always be presided over by a prosecutor. The prosecutor should then also be able to provide in-depth information to the suspect regarding the condi- tions for mitigation of penalty upon assistance in the investigation. This may not, however, take place in such a as to risk vio- lating the prohibition on improper interrogation methods pursuant to Chap. 23, sec. 12 of the Code of Judicial Procedure. Foreseeability is necessary in order for an arrangement regarding mitigation of penalty to be applied in practice. In order to achieve this, we propose that a provision be inserted into Chap. 45, sec. 4, second paragraph of the Code of Judicial Procedure, providing that the prosecutor must state a sentencing proposal in the indictment. However, the prosecutor must have the possibility to change the proposal if the conditions are changed and the court will not be bound by the proposal. A possibility of mitigation of sentence in consideration of in- formation regarding a crime committed by another may lead to an increased risk of suspects providing incorrect information. With respect to such situations, there should be well balanced sentencing The penal provision regarding making a false accusation (Chap. 15, sec. 7 the Penal Code) – where a person is convicted of falsely accusing someone else for a criminal offence – is aimed at such situations. In certain cases, the situation may also be such that the suspect, by reporting to the , indicates an innocent person in respect of a crime. Such cases may trigger penal liability for making a false report (Chap. 15, sec. 6 the Penal Code). We see no need to expand or adjust the punishable area in respect of these crimes. On the other hand, we believe that there is reason to increase the sen- tencing level in respect of the most serious cases of making a false report and making a false accusation. We propose therefore that, in respect of both crimes, a special grade be introduced with a separate crime designation for gross crimes. The penal scale should be im- prisonment of at least six months and at most four years. We also propose that, with respect to gross making a false report and gross making a false accusation, a qualification principle be introduced stating that the report and the accusation have referred to a serious crime. As a starting point, it is not permitted to keep concealed the identity of a witness. This is based on the principle that a party is entitled to receive everything that can constitute the basis for the decision. An official who enjoys a qualified protected identity may, however, testify under such a protected identity, but he or she must then inform about the protected identity. The question of whether to introduce an arrangement involving anonymous witnesses has been considered in a number of public investigations. However, no proposal for such a regulation has been presented. Provided certain conditions are fulfilled, the procedure involving anonymous witnesses can be compatible with Article 6 of Convention (the right to a fair trial). There must, how- ever, be cogent reasons for the witness’s identity concealed –as a rule, there must be a risk to the witness’s life or health. The fact that an anonymous witness constitutes the only or the crucial evidence does not rule out the procedure from being compatible with the Convention. However, in such cases the court must ensure, with the greatest possible care, that strong procedural and other protective measures are in place for the accused which nevertheless allows the procedure to be deemed fair. The greater the importance of the anonymous testimony, the greater the requirements imposed re- garding measures to ensure that the accused receives a fair trial. The majority of countries from which we have obtained information, including , and , have rules that make it possible to keep a witness’s identity con- cealed. The extent to which the rules are applied, and whether they are effective, is to some extent unclear. Certain countries have not stated in detail to what extent the provisions are applied. Some countries have stated that the provisions are used to a limited extent. In the Nordic countries, the provisions are very rarely used. We have obtained information from the crime fighting authorities in regarding the need for an arrangement involving anonymous witnesses. They have stated that in certain investigations there is a need to be able to offer anonymity to the victims of crime and witnesses. This is particularly so in the case of serious crimes linked to conflicts between criminals. Since an arrangement which makes it possible to provide testimony anonymously would encroach on the fundamental principle that the accused must have full insight into the circumstances on which a conviction is based, in our opinion there must be strong reasons for such an arrangement. It should only be relevant to apply a regulation regarding anony- mous witnesses in criminal investigations or trials involving particu- larly serious crimes. The legal scope for introducing and applying a regulation regarding anonymous witnesses is, in addition, clearly restricted, particularly by Convention. To some extent it is also unclear how the decisions of Court of Human Rights regarding such procedures should be interpreted in a Swedish context. There are also certain complicated questions concerning how a regulation regarding anonymous witnesses is to be structured in order to be effective, but at the same time guaranteeing legal certainty. Such a question is, among other things, when a decision regarding witness anonymity is to be taken and the conditions for reviewing such a decision. Since anonymous testimony limits the possibilities of the accused to call the witness’s credibility into ques- tion, it can also be expected to lead the court to usually affording limited evidentiary value to an anonymous witness testimony. The fact that a majority of countries in Europe have regulations regarding anonymous witnesses may indicate that such an arrange- ment should be introduced also in . From what has been shown, as a starting point, these regulations are used only in particu- larly exceptional cases. The international experience therefore pro- vides limited guidance on the question of whether a system involving anonymous witnesses should be introduced. A regulation regarding anonymous witnesses would probably primarily serve a function with respect to so-called random witnesses. However, also with respect to such persons the scope for testifying anonymously would be very limited, among other things, since there is seldom a sufficiently clear threat structure or since the anonymity would serve no function – e.g. if the accused knows or otherwise can find out the identity of the witness. The fact that no guarantee can be given to a witness that he or she can remain anonymous through- out the entire legal proceedings probably also significantly restricts the to testify anonymously. There is also a risk that the in- troduction of a regulation regarding anonymous witnesses would lead to unrealistic expectations regarding the possibility to anony- mously provide information, which might ultimately damage the confidence in the legal system. All in all, we believe that a regulation regarding anonymous witnesses might, to a very limited extent, contribute to investigations of, or prosecution for, crimes. The reasons that argue against in- troducing a rule that enables witnesses to provide their information anonymously are stronger than the reasons that argue in favour of such a rule. Therefore, it is our opinion that a possibility to testify anonymously should not be introduced. Support and protection for witnesses Provisions which in various ways are intended to support or protect witnesses – and also others who participate in legal proceedings – are to be found in numerous different laws, ordinances and regulations which directly or indirectly involve public authorities, municipalities and non-profit organisations. Even if Brå’s research shows that im-