The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
Organisation and structure of the public prosecution service
The prosecution service in Sweden is a unified, nation-wide and hierarchical organisation. The main task of the prosecution service is to perform criminal investigation and to bring criminal charge in the courts. Besides, the public prosecution service fulfils some few tasks in connection to enforcement of sanctions.
The legal provisions regulating organisation and tasks of the public prosecution service are fragmented into the following laws. The basic and most important regulation is to be found in the ch. 7 CJP. These provisions are complemented by the Regulation on Public Prosecution (Åklagarförordning, 1996:205) and the Regulation with instruction for the Office of the Prosecutor-General (Förordning, 1989:847, med instruktion för Riksåklagare). The fourth important law is Regulation with instruction for the Economic Crimes Bureau (Förordning, 1997:898, med instruktion för Ekobrottsmyndigheten ).
According to these laws, the structure of the Swedish public prosecutor service can be presented as follows.
At the top of the organisation is the Office of the Prosecutor-General (Riksåklagarmyndigheten), headed by the Prosecutor-General (Riksåklagare).
The three main tasks of the Office of the Prosecutor-General are:
- to administrate prosecution in the Supreme Court;
- to lead and supervise the activities of the prosecution service in order to guarantee the legality, as well as the consistency and uniformity of the application of law; and
- to administrate the prosecution service in Sweden.
At the level below, there are six prosecution offices (Åklagarmyndigheter) in Sweden that lead and supervise prosecution in six prosecution regions. The chief of every prosecution office is the director of the office (överåklagare).
On the third and lowest level are prosecution chambers (Åklagarkammare). There are 43 prosecution chambers in the country. Every chamber is headed by a chief prosecutor (chefsåklagare). The prosecutors working in the chambers hold the rank of chamber prosecutor (kammaråklagare).
The head of the prosecution service is the Prosecutor-General, who – as well as the Vice Prosecutor-General – is appointed by the Government. The Government appoints – on the proposal of the Prosecutor-General – also directors and vice directors of the prosecution offices. The other prosecutors, i.e. chiefs and vice chiefs prosecutors, as well as chamber prosecutors, are appointed by the Prosecutor-General. It should be noted that on each level within the hierarchy, assistant prosecutors could be appointed.
Recently, a proposal to a reorganisation of the public prosecution service has been adopted. Instead of on three levels, in future, the prosecution service will be organised on two levels. The six prosecution offices mentioned above, will be shut down and mainly the Office of the Prosecutor-General will take over their tasks partially by the prosecution chambers. The main purpose of this reform seems to be saving on administrative personnel and strengthening operational staff within the prosecution service.
Special prosecuting agencies
It has been said above that the Swedish public prosecution service is the exclusive and unified prosecution agency in the country. This is true with some modifications.
First, the Economic Crimes Bureau should be mentioned. The Bureau was created 1998 and is a specialised agency for the prosecution of economic crimes. An important task of the Bureau is to keep contacts with the appropriate authorities in the European Union, especially OLAF. As far as its organisation is concerned, the Bureau lies both inside and outside of the prosecution service. The chief of the Bureau is the Director, appointed by the Government on the proposal of the Prosecutor-General. The Director holds the same rang as the Directors of the Prosecution Offices. The Bureau follows, generally, the policy and regulations applicable to the prosecution service, but it has own budget and is partially independent. The staff of the Bureau consists of prosecutors, police officers and specialists in economic matters (i.e. business economy, taxes etc.).
The Economic Crimes Bureau could be described as a specialised unit with some special features in compared to normal prosecution offices, but it is still a unit within the structure of the public prosecution service. This is not case where another special prosecuting authority is concerned, the customs prosecutors. According to the Penalties for Smuggling Act (Lag, 2000:1225, om straff för smuggling), customs officers have the same authority as the police to investigate crimes in connection with border crossing. These crimes are investigated by specially trained customs personnel attached to the Criminal Investigation branch of the service. Public prosecutors generally supervise these officers. In less serious cases, if the sentence expected in a particular case is not more severe than fines, specially appointed custom prosecutors may carry out investigations. The Office of Prosecutor-General has issued Guidelines concerning the division of cases between the public and custom prosecutors (RÅFS 2001:10 Allmänna råd om fördelning av mål mellan allmän åklagare och tullåklagare).
Finally, there are two other authorities with power to carry out prosecution in some special cases, the Parliamentary Ombudsman (Justitieombudsman) and the Chancellor of Justice (Jusitiekanslern) (See ch. 12 sect. 6 and 8 of the Instrument of Government (Regeringsformen)).
An Ombudsman may – acting as a special prosecutor – bring charges against an official who, in failing to observe the requirements made by his post or task, has committed some criminal act other than press libel or the restriction of freedom of expression.
The Chancellor of Justice acts as the Government’s ombudsman in the supervision of authorities and civil servants, and is authorised to take action in cases of abuse of power. Further, he ensures that the limits of the freedom of the press and other media are not transgressed and acts as the only public prosecutor in cases regarding offences against the freedom of the press and other media.
The Parliamentary Ombudsman and the Chancellor of Justice are the only prosecutors empowered to bring charges for crimes committed by Justices of the Supreme Court or the Supreme Administrative Court in their exercise of office.
Implementation of prosecution policy
The Office of the Prosecutor-General as the highest authority of the public prosecution service in Sweden falls under the Government, more specifically under the responsibility of the Minister of Justice.
The Office has the position of a central department. It means, according to the constitutional rules (ch. 11 sect. 7 of the Instrument of Government), that neither the Government nor the Minister of Justice are allowed to give instructions to the Prosecutor-General concerning prosecution or interpretation of law in individual cases, if the case concerns individuals (which is always the case in criminal law). The Minister of Justice is politically accountable for the policy of the prosecution service. However, the only means the Government has at its disposal in so far as the control of the activity of the prosecution service is concerned, are laws, regulations and statements of a general nature. To give an example of such a statement, the Government’s memorandum The Report on Narcotic Drugs Policy (En narkotikapolitisk redogörelse Regeringens skrivelse, 1997/98:172) can be mentioned. In the memorandum, Government policy concerning narcotic drugs has been formulated. It is expected, that the prosecuting authorities follow the intentions of the Government in this field.
The Minister of Justice may be questioned by Parliament on prosecution policy in general, but never on an individual case.
Within the organisation of the prosecution service, the control mechanism works as follows. The Office of the Prosecutor-General may control and supervise both prosecuting activities and administration of the prosecution service by issuing instructions and guidelines of a general nature. These are published in the Statute book of the Office of the Prosecutor-General (Riksåklagarens författningssamling, abbr. RÅFS), or distributed as the Decisions of the Prosecutor-General. An example of the guidelines published in the Statute book is the Guidelines concerning leadership of the preliminary investigation. Other examples are guidelines concerning handling of cases as regards driving under the influence of narcotic drugs (Allmänna råd för handläggning av mål rörande drograttfylleri, RÅFS 1999:5) and guidelines concerning handling of cases as regards illegal discrimination (Allmänna råd rörande mål som avser olaga diskriminering, RÅFS 13:97). In the form of a decision by the Prosecutor-General, the guidelines concerning prosecution of the so-called hate crimes have been issued. Generally, instructions or guidelines of this type are used – apart from solving various problems of an administrative character – in order to focus prosecution policy on topical problems of criminal policy.
To illustrate the implementation of prosecution policy by means of the above-mentioned instruments, some examples may be given.
In the guidelines concerning prosecution of the offence unlawful discrimination, it is established that the prosecution of offences with a racist motive shall be given – according to the general outlines laid down by the Government – priority. Further, typical difficulties occurring during prosecution of these offences are pointed out. Then, the following guidelines are formulated: the preliminary investigation concerning this offence should always be led by a prosecutor, not by police; special prosecutors shall be established for this type of cases; the preliminary investigation, especially the securing of evidence, shall be carried out speedily; the prosecutor should give particular investigation instructions. In the following, some other more specific directions, concerning investigation instructions, are laid down.
The Decision of the Prosecutor-General with the memorandum and guidelines on fighting of hate crimes contains a detailed explanation of what is meant by the term hate crimes, what is the present situation as regards the fight against this kind of crime, as well as a description of the development of legislation and recent legal state of this field. It is emphasised that the basic approach to hate crimes, even in the future, has to be zero-tolerance. In conclusion, detailed guidelines (under 14 points) are laid down. These guidelines concern organisation of activity at the prosecution service offices, co-operation with the police, use of coercive measures, whether application of waiving of prosecution or not, securing of evidence, what kind of facts should be brought out and what kind of sentence should be proposed in court, and so forth.
Besides the general instructions and guidelines, implementation of proper prosecution policy within the public prosecution service may be done through interventions of higher prosecutors in individual cases. According to ch. 7 sect. 5 CJP, the Prosecutor-General, the directors of the prosecution offices as well as some other prosecutors of higher rang may take over a case from lower prosecutors and execute the necessary tasks, or carry out the whole investigation. Such a proceeding may take place on demand of a party, or on the higher prosecutors’ own initiative. This kind of proceeding is not regulated by statute law more than in the just mentioned legal provision, which left open some important legal questions. When interpreting this provision, it is sometimes referred to the Statement of the Parliamentary Ombudsman, who – as a result of a complaint lodged with the Ombudsman Office against a decision of a public prosecutor – analysed the legal situation concerning this legal problem (Decision No. 1245-2000).
The possibilities of the prosecution service to dispose of the case
In Swedish law, the principle of legality is applied, but there are many exceptions to this principle. Exceptions concerning police activity have been described above. The exceptions as far as the public prosecution service is concerned will be dealt with here.
Apart from the exceptions to the principle of legality stricto sensu, the prosecution service also has other possibilities to waive prosecution or to terminate a case. In the following, possible ways to terminate a criminal investigation at this stage of procedure have been divided into three groups, according to the character of the legal reasons for the decisions.
Before the possibilities to dispose of a case will be presented, it should be noted that both the police and the prosecutor do not need, or better, they should not institute, a criminal investigation. Also, if the investigation has been instituted, they should withdraw it, as soon as it becomes obvious that the act does not constitute a crime, or the crime cannot be proved (ch. 23 sect. 4 CJP). It is obvious that, in such situations, the question is not about exceptions to the principle of legality, but about the absence of crucial preconditions to institute or to complete criminal investigation at all.
Otherwise, criminal prosecution does not need be instituted or the prosecutor in the following three situations may drop the case:
■ A criminal investigation does not need be instituted, if prosecution of the particular offence requires a special examination of prosecution and the prosecutor comes to the decision not to prosecute. The term special examination of prosecution refers to a number of provisions in substantial criminal law, which stipulate that some offences shall be prosecuted only if certain prerequisites are given. Usually, the law contains instruction for prosecutors that a certain offence shall be prosecuted only if a substantial public interest requires it.
For instance, according to the ch. 3 sect. 11 CC, the negligent causing of bodily injury or illness may, if the crime is less grave, be subject to public prosecution only if the victim reports the crime for prosecution, and, at the same time, the prosecution is called for in the public interest. Similar prerequisites have been laid down as regards prosecution of some forms of the violation of the privacy of the home, trespass, illegal wire-tapping, and molestation. There are a considerable number of offences against property where the public interest (sometimes the substantial public interest) is a prerequisite for the public prosecution.
Furthermore, the prosecutor may discontinue a preliminary investigation or, he does not need to institute it:
- if continued inquiry would incur costs not in reasonable proportion in relation to the importance of the matter and the offence, if prosecuted, would not lead to a penalty more severe than a fine;
- if it can be assumed that prosecution will not be instituted pursuant to the provision on waiver of prosecution (see below) or on special examination of prosecution (se above); and – in both the situations –
- if no substantial public or private interests would be ignored by the discontinuance of the preliminary investigation (ch. 23 sect. 4a CJP).
Finally, according to sect. 46 Act on the Treatment of Drug Misuses (Lag, 1988:870, om vård av missbrukare i vissa fall), if a person for whom treatment has been provided under this Act is suspected of a criminal offence for which the punishment is not more than one year imprisonment, and if the offence has been committed before the treatment began or during the treatment period, the prosecutor shall consider whether it is appropriate to prosecute.
■ According to ch. 20 sect. 7 CJP, the prosecutor may waive prosecution, if one of the following prerequisites is presented, provided no compelling public or private interest is disregarded:
- if it may be presumed that the offence would not result in another sanction than a fine;
- if it may be presumed that the sanction would be a conditional sentence and special reasons justify waiver of prosecution;
- if the suspected has committed another offence and no further sanction in addition to the sanction for that offence is needed in respect of the present offence; or
- if psychiatric care or special care in accordance with the Act concerning persons with functional impairments is rendered.
Prosecution may be waived also in other cases, if it is manifest by reason of special circumstances that no sanction is required to prevent the suspect from engaging in further criminal activity.
It appears from the provision, that the possibility of the prosecutor to decide on the waiving prosecution is also limited by the prerequisite that the decision may not disregard any important private interest. Both the material and immaterial interests of the victim should be taken into account. The requirement of the law does not mean, however, that whatever interest of the victim of crime could prevent the prosecutor from deciding on waiving prosecution. As regards material interests, it is easier for the victim – at least in Swedish legal practice – to achieve judgment on compensation of damages in a criminal procedure, than in a civil case, but this fact itself is not considered to be an important private interest in this context. If anything, an important private interest might be a reason for negative decision on waiving, if the question is about personal injury.
If the victim of the crime is not satisfied with the prosecutor’s decision to waive prosecution, the victim may complain about it. In that case, the decision will be re-examined by a higher prosecutor. Actually, the law does not expressly regulate the complaints procedure against decisions made by prosecutors (as well as police officers), during the preliminary investigation regardless whether the offender or the victim has lodged the complaint. The present legal situation as regards this particular issue has been established in legal practice.
If a prosecutor has decided on waiving prosecution in a particular case, the question whether the victim itself can take over and continue the prosecution is not quite clear. By law, this is possible only if the victim has reported the crime to the prosecution and the prosecutor has made a formal decision not to prosecute in court (ch. 20 sect. 8 CJP). The injured party can take over the prosecution also if the prosecutor has decided to withdraw the prosecution after the case has been brought to court. In that case, it is not necessary that the victim has reported the crime to prosecution (ch. 20 sect. 9 CJP). If the attitude of the victim, who might have a right to take over and continue the prosecution, would be such that it would be possible to expect that the victim makes use of his or her right, the prosecutor will probably refrain from a decision on waiving prosecution.
If prosecution concerns young offenders, waiving prosecution is regulated in the Young Offenders Act. The possibilities to waive prosecution are more extensive than by adults (sect. 16 and 17 of the Young Offenders Act, Lag, 1964:167, med särskilda bestämmelser om unga lagöverträdare). It should be mentioned that the Young Offenders Act applies to young offenders up to the age of 20 years, but the rules on waiving prosecution concern only young offenders up to the age of 15 – 17 years.
■ The third group of possible ways for a prosecutor to terminate a criminal investigation consists of exercising judicial powers of the prosecution service
According to the ch. 48 sect. 1 – 12a CJP, a prosecutor himself may impose a punishment on the suspect by means of a summary penalty order (strafföreläggande). An order for summary penalty means that the suspect is, subject to his approval, ordered to pay a fine according to what the prosecutor considers that the offence deserves. A summary penalty may even concern a conditional sentence or such a sanction coupled with a fine. The conditional sentence according to the Swedish law differs from the punishments with similar names in other legal systems. The question is not about ‘conditional imprisonment’. The conditional sentence is a kind of warning, designed as an alternative to imprisonment if the particular offence is not serious enough to be punished by imprisonment. Accordingly the law, conditional sentence is a severer punishment than fine but more lenient than imprisonment. The conditional sentence is coupled, as a rule, with fine, frequently also with community service or other conditions, in order to make the conditional sentence more uncomfortable. If imposed by means of summary penalty order, it can be combined with fine only.
The summary penalty order may be used as a sentencing form as regards all the offences in respect of which fines are included in the range of penalties. There are no limits as to the severity of the fine punishment, which means that the prosecutor may sentence the suspect to the same sum as a court can do. A conditional sentence may be imposed even for more serious offences, that is for offences which do not have fine in the range of penalties, but only imprisonment, provided that it is obvious that the particular offence does not deserve a more severe punishment than just a conditional sentence.
The summary penalty order may also include a decision on compensation of damages to the victim of the crime, that is, a decision on a civil law matter, provided that the compensation consists of a payment.
The summary penalty order is a final decision in a particular case and has the same validity and consequences as a judgment of the court. It may be issued only if the offender confesses to the offence and accepts the order. Otherwise, the prosecutor has to bring the case to court after all.
The form of decision, as well as the question whether prosecutors reason their decisions or not, varies depending on the type of decision. Normally, decisions in the first group are not accompanied by any motivation, except, of course, the reference to the legal reason for the decision. The waiving of prosecution (group 2) and summary penalty order (group 3) should be motivated. This is important especially as far as the summary penalty order is concerned, because the order means that a person has been convicted. However, motivations in such cases are usually quite stereotyped.
There is no legal possibility for a settlement out of court in Swedish law. Something, which could be called the first step in this direction, represents, maybe, the Mediation Act 2002 (Lag, 2002:445, om medling med anledning av brott). The Act contents basic rules concerning mediation between victim and offender. A possible agreement on compensation of damages, reached on the basis of mediation, cannot replace a sentence for the crime. However, the fact that the offender has undergone mediation may influence the decision of the prosecutor on waiving of prosecution. The prosecution service itself is not engaged in mediation activity.
The Relation between the Public Prosecutor and the Minister of Justice
Organisation and structure of the public prosecution service
The prosecution service in Sweden is a unified, nation-wide and hierarchical organisation. The main task of the prosecution service is to perform criminal investigation and to bring criminal charge in the courts. Besides, the public prosecution service fulfils some few tasks in connection to enforcement of sanctions.
The legal provisions regulating organisation and tasks of the public prosecution service are fragmented into the following laws. The basic and most important regulation is to be found in the ch. 7 CJP. These provisions are complemented by the Regulation on Public Prosecution (Åklagarförordning, 1996:205) and the Regulation with instruction for the Office of the Prosecutor-General (Förordning, 1989:847, med instruktion för Riksåklagare). The fourth important law is Regulation with instruction for the Economic Crimes Bureau (Förordning, 1997:898, med instruktion för Ekobrottsmyndigheten ).
According to these laws, the structure of the Swedish public prosecutor service can be presented as follows.
At the top of the organisation is the Office of the Prosecutor-General (Riksåklagarmyndigheten), headed by the Prosecutor-General (Riksåklagare).
The three main tasks of the Office of the Prosecutor-General are:
- to administrate prosecution in the Supreme Court;
- to lead and supervise the activities of the prosecution service in order to guarantee the legality, as well as the consistency and uniformity of the application of law; and
- to administrate the prosecution service in Sweden.
At the level below, there are six prosecution offices (Åklagarmyndigheter) in Sweden that lead and supervise prosecution in six prosecution regions. The chief of every prosecution office is the director of the office (överåklagare).
On the third and lowest level are prosecution chambers (Åklagarkammare). There are 43 prosecution chambers in the country. Every chamber is headed by a chief prosecutor (chefsåklagare). The prosecutors working in the chambers hold the rank of chamber prosecutor (kammaråklagare).
The head of the prosecution service is the Prosecutor-General, who – as well as the Vice Prosecutor-General – is appointed by the Government. The Government appoints – on the proposal of the Prosecutor-General – also directors and vice directors of the prosecution offices. The other prosecutors, i.e. chiefs and vice chiefs prosecutors, as well as chamber prosecutors, are appointed by the Prosecutor-General. It should be noted that on each level within the hierarchy, assistant prosecutors could be appointed.
Recently, a proposal to a reorganisation of the public prosecution service has been adopted. Instead of on three levels, in future, the prosecution service will be organised on two levels. The six prosecution offices mentioned above, will be shut down and mainly the Office of the Prosecutor-General will take over their tasks partially by the prosecution chambers. The main purpose of this reform seems to be saving on administrative personnel and strengthening operational staff within the prosecution service.
Special prosecuting agencies
It has been said above that the Swedish public prosecution service is the exclusive and unified prosecution agency in the country. This is true with some modifications.
First, the Economic Crimes Bureau should be mentioned. The Bureau was created 1998 and is a specialised agency for the prosecution of economic crimes. An important task of the Bureau is to keep contacts with the appropriate authorities in the European Union, especially OLAF. As far as its organisation is concerned, the Bureau lies both inside and outside of the prosecution service. The chief of the Bureau is the Director, appointed by the Government on the proposal of the Prosecutor-General. The Director holds the same rang as the Directors of the Prosecution Offices. The Bureau follows, generally, the policy and regulations applicable to the prosecution service, but it has own budget and is partially independent. The staff of the Bureau consists of prosecutors, police officers and specialists in economic matters (i.e. business economy, taxes etc.).
The Economic Crimes Bureau could be described as a specialised unit with some special features in compared to normal prosecution offices, but it is still a unit within the structure of the public prosecution service. This is not case where another special prosecuting authority is concerned, the customs prosecutors. According to the Penalties for Smuggling Act (Lag, 2000:1225, om straff för smuggling), customs officers have the same authority as the police to investigate crimes in connection with border crossing. These crimes are investigated by specially trained customs personnel attached to the Criminal Investigation branch of the service. Public prosecutors generally supervise these officers. In less serious cases, if the sentence expected in a particular case is not more severe than fines, specially appointed custom prosecutors may carry out investigations. The Office of Prosecutor-General has issued Guidelines concerning the division of cases between the public and custom prosecutors (RÅFS 2001:10 Allmänna råd om fördelning av mål mellan allmän åklagare och tullåklagare).
Finally, there are two other authorities with power to carry out prosecution in some special cases, the Parliamentary Ombudsman (Justitieombudsman) and the Chancellor of Justice (Jusitiekanslern) (See ch. 12 sect. 6 and 8 of the Instrument of Government (Regeringsformen)).
An Ombudsman may – acting as a special prosecutor – bring charges against an official who, in failing to observe the requirements made by his post or task, has committed some criminal act other than press libel or the restriction of freedom of expression.
The Chancellor of Justice acts as the Government’s ombudsman in the supervision of authorities and civil servants, and is authorised to take action in cases of abuse of power. Further, he ensures that the limits of the freedom of the press and other media are not transgressed and acts as the only public prosecutor in cases regarding offences against the freedom of the press and other media.
The Parliamentary Ombudsman and the Chancellor of Justice are the only prosecutors empowered to bring charges for crimes committed by Justices of the Supreme Court or the Supreme Administrative Court in their exercise of office.
Implementation of prosecution policy
The Office of the Prosecutor-General as the highest authority of the public prosecution service in Sweden falls under the Government, more specifically under the responsibility of the Minister of Justice.
The Office has the position of a central department. It means, according to the constitutional rules (ch. 11 sect. 7 of the Instrument of Government), that neither the Government nor the Minister of Justice are allowed to give instructions to the Prosecutor-General concerning prosecution or interpretation of law in individual cases, if the case concerns individuals (which is always the case in criminal law). The Minister of Justice is politically accountable for the policy of the prosecution service. However, the only means the Government has at its disposal in so far as the control of the activity of the prosecution service is concerned, are laws, regulations and statements of a general nature. To give an example of such a statement, the Government’s memorandum The Report on Narcotic Drugs Policy (En narkotikapolitisk redogörelse Regeringens skrivelse, 1997/98:172) can be mentioned. In the memorandum, Government policy concerning narcotic drugs has been formulated. It is expected, that the prosecuting authorities follow the intentions of the Government in this field.
The Minister of Justice may be questioned by Parliament on prosecution policy in general, but never on an individual case.
Within the organisation of the prosecution service, the control mechanism works as follows. The Office of the Prosecutor-General may control and supervise both prosecuting activities and administration of the prosecution service by issuing instructions and guidelines of a general nature. These are published in the Statute book of the Office of the Prosecutor-General (Riksåklagarens författningssamling, abbr. RÅFS), or distributed as the Decisions of the Prosecutor-General. An example of the guidelines published in the Statute book is the Guidelines concerning leadership of the preliminary investigation. Other examples are guidelines concerning handling of cases as regards driving under the influence of narcotic drugs (Allmänna råd för handläggning av mål rörande drograttfylleri, RÅFS 1999:5) and guidelines concerning handling of cases as regards illegal discrimination (Allmänna råd rörande mål som avser olaga diskriminering, RÅFS 13:97). In the form of a decision by the Prosecutor-General, the guidelines concerning prosecution of the so-called hate crimes have been issued. Generally, instructions or guidelines of this type are used – apart from solving various problems of an administrative character – in order to focus prosecution policy on topical problems of criminal policy.
To illustrate the implementation of prosecution policy by means of the above-mentioned instruments, some examples may be given.
In the guidelines concerning prosecution of the offence unlawful discrimination, it is established that the prosecution of offences with a racist motive shall be given – according to the general outlines laid down by the Government – priority. Further, typical difficulties occurring during prosecution of these offences are pointed out. Then, the following guidelines are formulated: the preliminary investigation concerning this offence should always be led by a prosecutor, not by police; special prosecutors shall be established for this type of cases; the preliminary investigation, especially the securing of evidence, shall be carried out speedily; the prosecutor should give particular investigation instructions. In the following, some other more specific directions, concerning investigation instructions, are laid down.
The Decision of the Prosecutor-General with the memorandum and guidelines on fighting of hate crimes contains a detailed explanation of what is meant by the term hate crimes, what is the present situation as regards the fight against this kind of crime, as well as a description of the development of legislation and recent legal state of this field. It is emphasised that the basic approach to hate crimes, even in the future, has to be zero-tolerance. In conclusion, detailed guidelines (under 14 points) are laid down. These guidelines concern organisation of activity at the prosecution service offices, co-operation with the police, use of coercive measures, whether application of waiving of prosecution or not, securing of evidence, what kind of facts should be brought out and what kind of sentence should be proposed in court, and so forth.
Besides the general instructions and guidelines, implementation of proper prosecution policy within the public prosecution service may be done through interventions of higher prosecutors in individual cases. According to ch. 7 sect. 5 CJP, the Prosecutor-General, the directors of the prosecution offices as well as some other prosecutors of higher rang may take over a case from lower prosecutors and execute the necessary tasks, or carry out the whole investigation. Such a proceeding may take place on demand of a party, or on the higher prosecutors’ own initiative. This kind of proceeding is not regulated by statute law more than in the just mentioned legal provision, which left open some important legal questions. When interpreting this provision, it is sometimes referred to the Statement of the Parliamentary Ombudsman, who – as a result of a complaint lodged with the Ombudsman Office against a decision of a public prosecutor – analysed the legal situation concerning this legal problem (Decision No. 1245-2000).
The possibilities of the prosecution service to dispose of the case
In Swedish law, the principle of legality is applied, but there are many exceptions to this principle. Exceptions concerning police activity have been described above. The exceptions as far as the public prosecution service is concerned will be dealt with here.
Apart from the exceptions to the principle of legality stricto sensu, the prosecution service also has other possibilities to waive prosecution or to terminate a case. In the following, possible ways to terminate a criminal investigation at this stage of procedure have been divided into three groups, according to the character of the legal reasons for the decisions.
Before the possibilities to dispose of a case will be presented, it should be noted that both the police and the prosecutor do not need, or better, they should not institute, a criminal investigation. Also, if the investigation has been instituted, they should withdraw it, as soon as it becomes obvious that the act does not constitute a crime, or the crime cannot be proved (ch. 23 sect. 4 CJP). It is obvious that, in such situations, the question is not about exceptions to the principle of legality, but about the absence of crucial preconditions to institute or to complete criminal investigation at all.
Otherwise, criminal prosecution does not need be instituted or the prosecutor in the following three situations may drop the case:
■ A criminal investigation does not need be instituted, if prosecution of the particular offence requires a special examination of prosecution and the prosecutor comes to the decision not to prosecute. The term special examination of prosecution refers to a number of provisions in substantial criminal law, which stipulate that some offences shall be prosecuted only if certain prerequisites are given. Usually, the law contains instruction for prosecutors that a certain offence shall be prosecuted only if a substantial public interest requires it.
For instance, according to the ch. 3 sect. 11 CC, the negligent causing of bodily injury or illness may, if the crime is less grave, be subject to public prosecution only if the victim reports the crime for prosecution, and, at the same time, the prosecution is called for in the public interest. Similar prerequisites have been laid down as regards prosecution of some forms of the violation of the privacy of the home, trespass, illegal wire-tapping, and molestation. There are a considerable number of offences against property where the public interest (sometimes the substantial public interest) is a prerequisite for the public prosecution.
Furthermore, the prosecutor may discontinue a preliminary investigation or, he does not need to institute it:
- if continued inquiry would incur costs not in reasonable proportion in relation to the importance of the matter and the offence, if prosecuted, would not lead to a penalty more severe than a fine;
- if it can be assumed that prosecution will not be instituted pursuant to the provision on waiver of prosecution (see below) or on special examination of prosecution (se above); and – in both the situations –
- if no substantial public or private interests would be ignored by the discontinuance of the preliminary investigation (ch. 23 sect. 4a CJP).
Finally, according to sect. 46 Act on the Treatment of Drug Misuses (Lag, 1988:870, om vård av missbrukare i vissa fall), if a person for whom treatment has been provided under this Act is suspected of a criminal offence for which the punishment is not more than one year imprisonment, and if the offence has been committed before the treatment began or during the treatment period, the prosecutor shall consider whether it is appropriate to prosecute.
■ According to ch. 20 sect. 7 CJP, the prosecutor may waive prosecution, if one of the following prerequisites is presented, provided no compelling public or private interest is disregarded:
- if it may be presumed that the offence would not result in another sanction than a fine;
- if it may be presumed that the sanction would be a conditional sentence and special reasons justify waiver of prosecution;
- if the suspected has committed another offence and no further sanction in addition to the sanction for that offence is needed in respect of the present offence; or
- if psychiatric care or special care in accordance with the Act concerning persons with functional impairments is rendered.
Prosecution may be waived also in other cases, if it is manifest by reason of special circumstances that no sanction is required to prevent the suspect from engaging in further criminal activity.
It appears from the provision, that the possibility of the prosecutor to decide on the waiving prosecution is also limited by the prerequisite that the decision may not disregard any important private interest. Both the material and immaterial interests of the victim should be taken into account. The requirement of the law does not mean, however, that whatever interest of the victim of crime could prevent the prosecutor from deciding on waiving prosecution. As regards material interests, it is easier for the victim – at least in Swedish legal practice – to achieve judgment on compensation of damages in a criminal procedure, than in a civil case, but this fact itself is not considered to be an important private interest in this context. If anything, an important private interest might be a reason for negative decision on waiving, if the question is about personal injury.
If the victim of the crime is not satisfied with the prosecutor’s decision to waive prosecution, the victim may complain about it. In that case, the decision will be re-examined by a higher prosecutor. Actually, the law does not expressly regulate the complaints procedure against decisions made by prosecutors (as well as police officers), during the preliminary investigation regardless whether the offender or the victim has lodged the complaint. The present legal situation as regards this particular issue has been established in legal practice.
If a prosecutor has decided on waiving prosecution in a particular case, the question whether the victim itself can take over and continue the prosecution is not quite clear. By law, this is possible only if the victim has reported the crime to the prosecution and the prosecutor has made a formal decision not to prosecute in court (ch. 20 sect. 8 CJP). The injured party can take over the prosecution also if the prosecutor has decided to withdraw the prosecution after the case has been brought to court. In that case, it is not necessary that the victim has reported the crime to prosecution (ch. 20 sect. 9 CJP). If the attitude of the victim, who might have a right to take over and continue the prosecution, would be such that it would be possible to expect that the victim makes use of his or her right, the prosecutor will probably refrain from a decision on waiving prosecution.
If prosecution concerns young offenders, waiving prosecution is regulated in the Young Offenders Act. The possibilities to waive prosecution are more extensive than by adults (sect. 16 and 17 of the Young Offenders Act, Lag, 1964:167, med särskilda bestämmelser om unga lagöverträdare). It should be mentioned that the Young Offenders Act applies to young offenders up to the age of 20 years, but the rules on waiving prosecution concern only young offenders up to the age of 15 – 17 years.
■ The third group of possible ways for a prosecutor to terminate a criminal investigation consists of exercising judicial powers of the prosecution service
According to the ch. 48 sect. 1 – 12a CJP, a prosecutor himself may impose a punishment on the suspect by means of a summary penalty order (strafföreläggande). An order for summary penalty means that the suspect is, subject to his approval, ordered to pay a fine according to what the prosecutor considers that the offence deserves. A summary penalty may even concern a conditional sentence or such a sanction coupled with a fine. The conditional sentence according to the Swedish law differs from the punishments with similar names in other legal systems. The question is not about ‘conditional imprisonment’. The conditional sentence is a kind of warning, designed as an alternative to imprisonment if the particular offence is not serious enough to be punished by imprisonment. Accordingly the law, conditional sentence is a severer punishment than fine but more lenient than imprisonment. The conditional sentence is coupled, as a rule, with fine, frequently also with community service or other conditions, in order to make the conditional sentence more uncomfortable. If imposed by means of summary penalty order, it can be combined with fine only.
The summary penalty order may be used as a sentencing form as regards all the offences in respect of which fines are included in the range of penalties. There are no limits as to the severity of the fine punishment, which means that the prosecutor may sentence the suspect to the same sum as a court can do. A conditional sentence may be imposed even for more serious offences, that is for offences which do not have fine in the range of penalties, but only imprisonment, provided that it is obvious that the particular offence does not deserve a more severe punishment than just a conditional sentence.
The summary penalty order may also include a decision on compensation of damages to the victim of the crime, that is, a decision on a civil law matter, provided that the compensation consists of a payment.
The summary penalty order is a final decision in a particular case and has the same validity and consequences as a judgment of the court. It may be issued only if the offender confesses to the offence and accepts the order. Otherwise, the prosecutor has to bring the case to court after all.
The form of decision, as well as the question whether prosecutors reason their decisions or not, varies depending on the type of decision. Normally, decisions in the first group are not accompanied by any motivation, except, of course, the reference to the legal reason for the decision. The waiving of prosecution (group 2) and summary penalty order (group 3) should be motivated. This is important especially as far as the summary penalty order is concerned, because the order means that a person has been convicted. However, motivations in such cases are usually quite stereotyped.
There is no legal possibility for a settlement out of court in Swedish law. Something, which could be called the first step in this direction, represents, maybe, the Mediation Act 2002 (Lag, 2002:445, om medling med anledning av brott). The Act contents basic rules concerning mediation between victim and offender. A possible agreement on compensation of damages, reached on the basis of mediation, cannot replace a sentence for the crime. However, the fact that the offender has undergone mediation may influence the decision of the prosecutor on waiving of prosecution. The prosecution service itself is not engaged in mediation activity.
