Bevisförbud: En undersökning av möjligheterna att avvisa oegentligt åtkommen bevisning i brottmålsrättegång
1998 (English)Doctoral thesis, monograph (Other academic)Alternative title
The exclusion of illegally or unfairly obtained evidence in criminal procedure (English)
The thesis deals with the exclusion of illegally or unfairly obtained evidence in criminal procedure (Beweisverwertungsverbot). The thesis focuses on Swedish law, which is discussed against the background of English and German law. EC-law and the European Convention on Human Rights are also considered.
In principle the Swedish position is that it is never possible to exclude illegally or unfairly obtained evidence. This can be critized. For example, the principle of the free presentation of evidence means only that the form of the evidence does not by itself render it inadmissible at trial. Thus, the principle can not be used as a support for allowing such evidence.
The Swedish standpoint must be reconsidered due to the Swedish membership of the EU and the incorporation of the European Convention on Human Rights as well as other factors such as the internationalization of crime. In particular, the case-law from the European Court of Human Rights leads to a need for a model to deal with the issue.
The reason for excluding illegally or unfairly obtained evidence is to protect certain interests, often related to the suspect/accused as a subject in the proceedings - a protective function. By means of weighing competing interests against each other it is possible to pay regard to relevant arguments and to reach a reasonable outcome. The author proposes that a three fold test be employed in concrete cases in order to decide the admissibility of evidence. Firstly, is there a rule regulating the collection and use of evidence in this area? Secondly, has this rule been violated? Thirdly, does respect for certain procedural or substantive interests motivate excluding the evidence? The model is based upon basic principles in the criminal procedure. The distinction between illegally and unfairly obtained evidence is upheld and the German concept is adopted (selbständige und unselbständige Beweisverwartungsverbote).
Place, publisher, year, edition, pages
Uppsala: Acta Universitatis Upsaliensis , 1998. , 372 p.
Skrifter från Juridiska fakulteten i Uppsala, ISSN 0282-2040 ; 64
IdentifiersURN: urn:nbn:se:uu:diva-1109ISBN: 91-7678-387-1OAI: oai:DiVA.org:uu-1109DiVA: diva2:160654
1998-05-27, universitetets lärosal IV, Uppsala, Uppsala, 10:15 (English)