Tidigare brottslighet: Om rättsverkningar av återfall i brott
2005 (Swedish)Doctoral thesis, monograph (Other academic)
Many penal systems impose lower sentences on the first time offender than on the one who has been previously convicted. This thesis concerns the relevance of previous convictions for sentencing.
The Swedish sentencing system is based on the principle of proportionality. The criminal sanction is supposed to be proportionate to the seriousness of the criminal conduct. One of the questions this study sets out to investigate is weather previous convictions can be taken for consideration in a legal system based on the principle of proportionality. To answer this question the thesis study the degree of culpability that may be ascribed to the offender. Can previous conviction increase this culpability? Or maybe an alternative explanation can give the answer? Perhaps the correct way is to argue for a reduced disapproval of the offender for his first misdeed.
My conclusions are that, theoretically, previous convictions have no relevance for a proportionality-based system. In practice, however, few people would be likely to argue with the proposition that an offender´s criminal record is an important factor of his sentencing. The best way of dealing with the problem is therefore to give previous convictions only a limited relevance in sentencing.
According to the Swedish Penal Code previous convictions can be taken into consideration in four ways. In sum, previous convictions are regarded as aggravating circumstances. The principle “ne bis in idem”, leads, however, to the conclusion that an aggravating factor may be taken into consideration only once during the sentencing procedure. Due to how the principle of proportionality is interpreted, as well as the restrictions imposed by the principle “ne bis in idem” and the principle of humanity, one may conclude that previous convictions are given disproportionate importance in the sentencing system.
To sum up, my conclusion is that where previous convictions are concerned, the sentencing system needs to be revised. It is important that the legal framework is amended in such a way that previous convictions will affect the sentencing system in a lesser degree than as provided by the Swedish Penal Code today.
Place, publisher, year, edition, pages
Stockholm: Juridiska institutionen , 2005. , 268 p.
straff, påföljd, påföljdsbestämning, påföljdsval, straffmätning, tidigare brottslighet, återfall i brott
Law (excluding Law and Society)
IdentifiersURN: urn:nbn:se:su:diva-647ISBN: 91-7155-124-7OAI: oai:DiVA.org:su-647DiVA: diva2:196528
2005-09-30, De Geersalen, Geovetenskapens hus, Svante Arrhenius väg 8 A, Stockholm, 09:00
Träskman, Per Ole