Domstolens bedömning av tilltalades psykiska tillstånd - subjektiva gissningar eller objektiva sanningar?

Abstract

This essay aims to discuss the court's legal sanctions for mentally disordered law offenders. The overall purpose of the essay is to analyse whether or not the court's legal sanctions for mentally disordered law offenders can be criticised from a legal security perspective. Firstly, the essay focuses on how the legal sanctions for mentally disordered law offenders are designed and if the guidelines for the court's legal decisions regarding sanctions are sufficiently explicit. Currently, the most important relevant regulations can be found in 30:6 and 31:3 in the Swedish criminal code. In these sections we find the so called prohibition on prison and also the prerequisites for handing a person over to forensic psychiatric care. In this context, the concept of what is considered a serious mental disorder is of great importance and the interpretation of its meaning is essential. According to my opinion, the legal regulations and relevant legal prepatory work clearly states how the legal sanctions are meant to be practiced. Thus, the current problem does not lie in how obvious the conditions that can be categorised within the concept are, but rather in the evaluation of whether the individual is suffering from a mental disorder that can be included in the concept or not. Despite established regulations it often comes down to an evaluation of a specific person's psychical condition, which often is a delicate question for the court. Secondly, the essay discusses what kind of information the court has access to when determining a legal sanction and what kind of limitations the court has to consider when evaluating a persons psychical condition. To facilitate the judgements, the court can appoint a so called § 7-examination, or a more advanced forensic psychiatric examination. The court can also acquire a complementary comment regarding executed examinations from the Swedish national board of health and welfare's legal council. A comment regarding an examination is an expert opinion, which means that the court is not bound by it. In spite of this, the court must examine the contents of the expert opinion very closely and generally the evaluation of the accused's psychical condition shall be accepted. When determining the accused's psychical condition the court shall apply a principle of overbalance and decide whether or not predominante grounds indicates that the accused suffers from a serious mental disorder. My conclusion within this section of the essay is that expert opinions shall carry great weight when determining an adequate sanction and that it takes weighty reasons to oppose these opinions. The court shall not go as far as to stipulate a new diagnosis of the accused. However, the final determination of sanction is up to the court alone. Thirdly, the essay deals with the practical difference between forensic psychiatric care and imprisonment. When examining the legal sanctions from a legal security perspective it is of great importance to be aware of the different scenarios that can become reality for an accused when facing a sanction from the court. The greatest difference between imprisonment and forensic psychiatric care is, besides the differences in form and content of the detention, that the latter lacks time limitation. When in forensic psychiatric care, the patient shall be released when he or she has been ''fully treated''. This means that serious crimes can be followed by a comparatively short time of treatment, while relatively lenient crimes can be followed by a comparatively long time of treatment. Even though no firm guidelines can be stipulated, one can see that an accused who has been sentenced to forensic psychiatric care generally serves more time than a person sentenced to imprisonment when the crime committed is in the medium range, but for a considerably shorter amount of time when having committed a very serious crime. Thus, the conclusion is that the length of custody can come to differ substantially for the individual. For those law offenders who have committed heinous crimes and who's psychical disorder is close to serious in the meaning of the law, I mean to question if not forensic psychiatric care in reality is the more lenient legal sanction. To illustrate the courts decision-making process for mentally disordered law offenders three legal cases have been chosen and made subject to discussion within this essay. In these legal cases the determinations of the accused's psychical conditions varies considerably between the legal instances. In one instance the accused is not considered to suffer from a serious mental disorder and can therefore be sentenced to prison, while the next instance argues the opposite. After studying these legal cases I consider there to be at least some aspects of the court's decision-making that can be criticised from a legal security perspective. Naturally, no certain conclusion about a general legal security problem can be drawn without a more extensive case study. However, in my opinion, the cases studied indicate that it is a matter worth studying more closely.

• author: Svenaeus, Lovisa
• supervisor: Per Ole Träskman
• organization: Department of Law
• year: 2008
• type: H3 - Professional qualifications (4 Years - )
• subject: Law and Political Science
• keywords: Straffrätt
• language: Swedish
• id: 1562278
• date added to LUP: 2010-03-08 15:55:30
• date last changed: 2010-03-08 15:55:30