Introduction
Introduction
The Swedish criminal procedure can be placed somewhere in between the continental model of the criminal procedure, containing some inquisitorial elements, and the Anglo-American model with its prevailingly adversary character. Whereas the Swedish preliminary investigation is more similar to the continental type of criminal procedure, the court trial resembles the Anglo-American model.
Apart from the similarities, the Swedish preliminary investigation also differs in some respects from the continental model. Speaking about the role of the public prosecutor service, there are at least two typical features of the Swedish system that should be pointed out.
The first feature is far-reaching judicial (adjudicatory) power of public prosecutors. In the following, it will be shown that Swedish prosecutors have extensive possibilities to terminate criminal procedure by imposing a penal sanction on the suspect. This final decision has the same validity as a court judgment. Normally, in other legal systems, only judges can make such kind of decisions. A more extensive discussion of this specific Swedish solution lies beyond the scope of this paper. It suffices here to mention briefly that in my opinion this feature has its origins in the fact that in Swedish political practice the distinction between the executive and judicial power, in the sense of the theory of the division of power, is not systematically adhered to. Mainly for reasons of process economy, the judicial powers of the prosecution service have been extended step-by-step since the 1960s, mostly without meeting any serious opposition. The widening of the prosecutor’s judicial powers however, did meet some opposition. When, for instance, the Government proposed that the prosecution service order would in future have the possibility to impose conditional sentence by means of summary penalty (the Government’s proposition No. 1996/1997:8) all judges were strongly against the Government proposition in principle. The bill was passed anyway. It is worth noting that even the Swedish police may impose a penalty on the perpetrator for a crime in legal sense.
The second characteristic feature is the fact, that many important questions concerning relations between the police and public prosecution service during criminal investigation are settled in an informal way. That is to say, agreements between those authorities settle issues that would be expected to be solved by law. There are some provisions in the Code of Judicial Procedure regulating relations between the police and prosecution. However, law does not regulate many important questions at all, only by the agreements mentioned. This feature can probably be explained by specific historical developments in Sweden. Actually, the prosecution service, distinct from the police organisation, was established as late as 1965. Before 1965, the chiefs of the police were main prosecutors at the same time and used to bring criminal cases to court.
The Swedish criminal procedure can be placed somewhere in between the continental model of the criminal procedure, containing some inquisitorial elements, and the Anglo-American model with its prevailingly adversary character. Whereas the Swedish preliminary investigation is more similar to the continental type of criminal procedure, the court trial resembles the Anglo-American model.
Apart from the similarities, the Swedish preliminary investigation also differs in some respects from the continental model. Speaking about the role of the public prosecutor service, there are at least two typical features of the Swedish system that should be pointed out.
The first feature is far-reaching judicial (adjudicatory) power of public prosecutors. In the following, it will be shown that Swedish prosecutors have extensive possibilities to terminate criminal procedure by imposing a penal sanction on the suspect. This final decision has the same validity as a court judgment. Normally, in other legal systems, only judges can make such kind of decisions. A more extensive discussion of this specific Swedish solution lies beyond the scope of this paper. It suffices here to mention briefly that in my opinion this feature has its origins in the fact that in Swedish political practice the distinction between the executive and judicial power, in the sense of the theory of the division of power, is not systematically adhered to. Mainly for reasons of process economy, the judicial powers of the prosecution service have been extended step-by-step since the 1960s, mostly without meeting any serious opposition. The widening of the prosecutor’s judicial powers however, did meet some opposition. When, for instance, the Government proposed that the prosecution service order would in future have the possibility to impose conditional sentence by means of summary penalty (the Government’s proposition No. 1996/1997:8) all judges were strongly against the Government proposition in principle. The bill was passed anyway. It is worth noting that even the Swedish police may impose a penalty on the perpetrator for a crime in legal sense.
The second characteristic feature is the fact, that many important questions concerning relations between the police and public prosecution service during criminal investigation are settled in an informal way. That is to say, agreements between those authorities settle issues that would be expected to be solved by law. There are some provisions in the Code of Judicial Procedure regulating relations between the police and prosecution. However, law does not regulate many important questions at all, only by the agreements mentioned. This feature can probably be explained by specific historical developments in Sweden. Actually, the prosecution service, distinct from the police organisation, was established as late as 1965. Before 1965, the chiefs of the police were main prosecutors at the same time and used to bring criminal cases to court.
