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In Sweden an oral hearing, the trial, is held as the ideal model for the criminal procedure and according to the legality principle reported crimes ought to be investigated and prosecuted. Over time high levels of reported crimes have led to an increase in pressure on the courts and other actors in the criminal process. This pressure has created new ways of dealing with reported crimes in summary procedures and to exceptions from the legality principle. Such changes have given the prosecutor a key role in deciding how cases are dealt with in the criminal process.  The purpose of this thesis is to examine the Swedish public prosecutor’s influence on the choice of cases that are investigated, prosecuted and tried in court during a trial. The study examines the prosecutors’ legal authority and how that authority has changed from the time that the Code of Judicial Procedure came into force in 1948 to the beginning of 2011. A starting point for the examination is that investigating, prosecuting and trying cases in the criminal process should be carried out in a way that is considered to be fair according to societal values, which are embedded in the legal system. Both decisions about which cases will be tried and the procedure involved in how to try them has to be performed in a way that seems to be fair. In the study the values that underlie the criminal process is examined through a model. This model assumes that the criminal process has been created and developed to satisfy different requirements, which can be separated into three main groups: the functions of the criminal process, legal principles and the main objectives of a good administration of justice. The model is used to analyze and discuss the development of the legal rules. The prosecutor’s authority and influence over the process has broadened and the use of summary procedures has served to place the focus on the police investigation instead of the trial. Among the objectives of a good administration of justice Speed and Cost effectiveness are considered to be more important than Security. As long as the Trust in the system is sufficient this development can continue. A conclusion from the study is that there is a need for some actor to prioritize and to do that openly. In the study the issue is raised whether it is time to question the legality principle as the main principle for the Swedish legal system. / <p>Förlagsutgiven med 3 månaders embargo.</p>

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The aim of this essay is to describe and analyse the legal complications that arise in connection with preliminary investigations involving several juvenile offenders, where all suspected persons have not attained the age of criminal liability. It is also intended to give a broad analysis of the concept preliminary investigation, with particular emphasis on juvenile offenders. It further analyses the legislation and legal complications on the basis of a rule of law perspective. The method previously used is court dogmatic, where in front law text, preparatory work, case law and legal doctrine have been used in order to present the existing sources relating to the subject matter of discussion. The criminal investigative bodies consider juvenile offenders are regulated under the Swedish RB 23 - 28 chapters, FUK and LUL. The fundamental basis used in deciding whether to commence a preliminary investigation, is that of evidence gathered and if it can be reasonably concluded that a crime has been committed under general legislation. A preliminary investigation is initiated and led by either the police authority or the prosecutor. The preliminary investigation is always led by the prosecutor in serious criminal matters. There are certain specific rules that apply when juvenile offenders become the subject of a criminal investigation. The rules applied vary dependant upon and with due regard to the age of the offenders. The age of criminal liability is a crucial and definite factor in this context, where by preliminary investigations can be initiated only against young people that have attained an age of 15 years, but not against those yet to have reached that age. Criminal investigations may however under certain circumstances be initiated against juvenile offenders that have not reached the age of 15 years, as per LUL 31§. The most significant conclusion reached is that the rule of law be applied and met when young people become subjects of a criminal investigation. A majority of the regulations contained within the legislation limit and make the investigative process problematic, particular emphasis being under the interrogation process and the use of means of compulsion. A discussion or inquiry should be entered with regard to the effectiveness of the preliminary investigative process pertaining to juvenile offenders, with a means to improving the procedure whilst maintaining rule of law.

This thesis examines the Swedish criminal procedure for children under 15 years old. It studies the procedure both in relation to the statutory purposes and relative to United Nations Convention on the Rights of the Child (CRC) which, as of January 1st 2020, is incorporated into Swedish law. Methodologically, I have approached the material and writing process using legal dogmatics, a method that acknowledges statutory law, preparatory works, precedents and legal doctrine as the primary legal sources. The main objects of the thesis are the investigative procedure stated in 31 § LUL and the trial procedure stated in 38 § LUL. The criminal procedure for children is regulated seperately from the criminal procedure for adults, and thereby aims to protect the suspected child and to provide certain legal safegu- ards that surround the procedure. The importance of the legal safeguards is paramount due to the incorporation of the CRC. In addition, the thesis ana- lyzes different aspects with the Swedish governments proposed review of the statutory provisions. I conclude that the Swedish criminal procedure for children does not fully har- monize with the CRC and its demands for a child-friendly legal process. For example, the main purpose behind the Swedish criminal procedure for children under 15 years old is to ensure that social services has a good enough basis in order to decide on adequate support measures for the suspected child. Also, the procedure should be used as rarely as possible since the children who are subject to the procedure have not yet reached the age for criminal responsibi- lity. Despite the above, a study of the statutory provitions and its preparatory works has shown that the procedure through reforms have become more pe- nalty oriented and that criminal justice measures against children are used more commonly. The result implies that the main purpose behind the legislation no longer seems to be solely for the best for the child and its need for support through social services. I identify a legal development where purposes other than what’s best for the suspected child have become increasingly important. Furthermore, the Swedish criminal procedure for children includes a number of ambiguities that make the provitions difficult to apply in practice.

The Swedish criminal proceedings are structured, partly based on a preliminary investigation and partly based on a main hearing. The preliminary investigation aims to investigate whether a crime has been committed, and who may be held responsible for the crime. The main hearing aims to determine, in a legally secure manner, whether the suspect can be held responsible for the crime.  During the investigation, the suspect can be detained, if there is a risk that the suspect will interfere with the investigation. The suspect can also be subjected to restrictions, which means that they can’t contact other people outside the detention facility. Furthermore, the restrictions can keep the suspect from meeting other detained individuals, resulting in total isolation and mental health issues. The purpose of the restrictions is to prevent the suspect from harming the investigation by contacting other people or fellow suspects. The necessity of restrictions is related to the procedural principles in court. The principles entail that witnesses generally must be heard in court, regardless of whether they have been heard by the prosecutor or police during the preliminary investigation. The reason is to provide the court with the best possible conditions to conduct a thorough assessment of the evidence. Therefore, the preliminary investigation becomes particularly vulnerable regarding witness testimony since the suspect may influence the witnesses by threats or violence. The division in the criminal proceedings, between the preliminary investigation and the main hearing, promotes the use of detentions and restrictions, particularly in cases of more severe criminality. The division can be described as a conflict between the interests of efficiency and legal security. The interest in efficiency is expressed through the preliminary investigation and the judicial system’s ability to resort to coercive measures. This ensures that the legal system can investigate and prosecute crimes. The interest in legal security is expressed through the main hearing and the procedural principles in court. This ensures that no one is wrongfully convicted. The purpose of this study is to investigate which application problems that may occur when the judicial system applies the restriction legislation. Is there room for a different interpretation of the law? Can the law be applied differently based on the purposes of the law? If the law can’t be applied differently, what revisions are necessary to align it with its intended purposes?

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A number of people have criticized the fact that courts often over-rely on DNA- evidence and that the shortcomings of DNA-analyses are rarely addressed. One flaw with DNA-analyses is that they cannot distinguish whether the presence of the DNA-trace has been caused by a so-called secondary transfer. Secondary transfer, the occurrence of which has been confirmed by several scientific stud- ies, means that DNA is transferred in two stages via contacts. A transfer of DNA can thus first occur from one person to another, for example by shaking hands, and then from the other person to a material, for example by grabbing a weapon. This poses a risk that DNA from an innocent person can be transferred through another person to a crime scene. A fundamental principle of criminal procedure is that the full burden of proof should be placed on the prosecution. This principle is derived from the presump- tion of innocence in Article 6.2 of the ECHR. As a consequence, the defendant has a right to remain silent throughout the judicial proceedings. Should the de- fendant instead be required to explain some of the circumstances of the case, a burden of proof would fall on the defendant, a so-called burden of explanation. Thus, a requirement that the defendant explain some of the circumstances of the case conflicts with the principle of the prosecutor's full burden of proof. Given the criticism that the courts rarely consider the shortcomings of DNA- evidence, there is a risk that the responsibility falls on the defendant to point out that a secondary transfer of DNA has occurred and to actively work towards convincing the court of his or her innocence. The purpose of the paper is thus to investigate the courts' consideration of these objections from the accused. The question is if a burden of explanation is placed on the accused and whether this is compatible with the presumption of innocence. To fulfill the purpose, an empirical study was conducted in the form of an analysis of 16 district court and appellate court decisions. The results showed that the defendant was imposed a burden of explanation in several cases. An exami- nation of the case law of the ECHR showed that there is, in exceptional cases, a possibility to impose an explanatory burden on the accused. However, the cases in the study were not covered by the exception. In conclusion, the practical ap- plication of the burden of proof is not compatible with the presumption of in- nocence. There is thus a need to educate judges on the complex subject of DNA to draw attention to the drawbacks of the evidence and to correct the false per- ception of DNA evidence as infallible. Furthermore, there is a need for a new precedent from the Supreme Court clarifying how the burden of explanation should be applied in accordance with the ECHR.