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Med uppsåt att döda? En utredning om gränsdragningen mellan grov misshandel och försök till mord

Zettergren, Lina (2008)
Department of Law
Abstract
This essay discusses the border between aggravated assault and attempted murder. This is discussed from the court's perspective and the aim is to examine how the judges decide whether or not the perpetrator has had the necessary intent to be held responsible for attempted murder. The essay includes two parts, one of which is theoretical and one that is practical. The theoretical part begins with a text on valuation of evidence in general. This is the process where the court, from one or more existing facts, draws conclusions concerning the probability of the existence of another fact. There are no rules in the Swedish law on how this should be done. Instead, the judges have to use their own experience to see the connection between... (More)
This essay discusses the border between aggravated assault and attempted murder. This is discussed from the court's perspective and the aim is to examine how the judges decide whether or not the perpetrator has had the necessary intent to be held responsible for attempted murder. The essay includes two parts, one of which is theoretical and one that is practical. The theoretical part begins with a text on valuation of evidence in general. This is the process where the court, from one or more existing facts, draws conclusions concerning the probability of the existence of another fact. There are no rules in the Swedish law on how this should be done. Instead, the judges have to use their own experience to see the connection between different phenomena. A type of evidence that is very common and important in criminal cases is the witness. According to Ekelöf, the court always needs to consider the statement of the witness as part of a chain of evidence and value each part of the chain separately before the final value of the evidence is settled. Statements of the perpetrator and the plaintiff need to be handled with caution considering their relation to the incidence. Diesen and Lindell have presented a number of common sources of error while evaluating evidence. It is important that the judges are aware of these risks. One such source is that the assessment is based directly on the general impression of the evidence rather than analyzing and valuing each part separately. After the general part, the special problems connected with valuation of evidence concerning criminal intent are discussed. The connection between the evidence itself and what it is supposed to prove can be harder to estimate regarding this part of the crime since it is more individual. In Swedish criminal law, there are different types of criminal intent that can be used. In most cases of attempted murder it is the intent called ''likgiltighetsuppsåt'' (intent based on indifference) that is being used. Therefore, a text on how that type of intent should be used is included in this part of the essay. After this, the question of what degree of probability for the criminal effect that should be demanded in order for the perpetrator to have had the necessary intent is discussed. According to both the Supreme Court of Sweden and the doctrine, the probability apprehended by the perpetrator is an important factor while evaluating the evidence of the criminal intent. Borgeke says that every assessment of intent has to begin with an evaluation of this factor and suggests that the level of probability be placed on a scale consisting of eight steps. This can be used as a starting-point to decide what else is needed to make a decision in the question of intent. The Supreme Court has presented a number of factors that should be seen as signs of indifference and therefore of intent. The factors have also been discussed in the doctrine and include reckless behaviour and the perpetrator's interest in the matter. The practical part of the essay consists of a study of legal cases where twelve cases from the court Svea Hovrätt are discussed. These are all the cases from the first six months of 2007 where the prosecutor claimed that the crime should be seen as an attempted murder. The summary of the cases focuses on the parts that deal with the actual course of events, the valuation of the statements of the parties and to some extent of other evidence, and the assessment of criminal intent. The analysis aims to link the theoretical part of the essay to the practical with the purpose of finding out how the question of intent is handled in legal cases regarding attempted murder. First, the valuation of evidence in general is discussed. In my opinion, there is a lack of reasoning when it comes to the valuation of witnesses as evidence. It is also noteworthy that no alternative hypothesis regarding the course of events is presented by the court in the cases where the perpetrator is silent. After this, the way the courts apply the intent based on indifference is compared with the theory presented on the matter. The way they handle the question of intent differs a lot. In some cases one of the two steps included is disregarded. However, such mistakes can be an error in wording rather than in thinking. The end of the analysis treats the more specific question of what factors have been vital in the assessment of the criminal intent in the twelve legal cases. The factors that were proposed by the Supreme Court do not seem to have had a very big impact on the courts. The only one that can be said to have influenced some of the decisions is reckless behaviour. In fact, the course of action seems to be the most important factor. Threats that have been expressed by the perpetrator have also been given importance where it occurred. Another factor of significance is whether or not the wounds have been life-threatening. (Less)
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author
Zettergren, Lina
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Processrätt, Straffrätt
language
Swedish
id
1563182
date added to LUP
2010-03-08 15:55:31
date last changed
2010-03-08 15:55:31
@misc{1563182,
  abstract     = {This essay discusses the border between aggravated assault and attempted murder. This is discussed from the court's perspective and the aim is to examine how the judges decide whether or not the perpetrator has had the necessary intent to be held responsible for attempted murder. The essay includes two parts, one of which is theoretical and one that is practical. The theoretical part begins with a text on valuation of evidence in general. This is the process where the court, from one or more existing facts, draws conclusions concerning the probability of the existence of another fact. There are no rules in the Swedish law on how this should be done. Instead, the judges have to use their own experience to see the connection between different phenomena. A type of evidence that is very common and important in criminal cases is the witness. According to Ekelöf, the court always needs to consider the statement of the witness as part of a chain of evidence and value each part of the chain separately before the final value of the evidence is settled. Statements of the perpetrator and the plaintiff need to be handled with caution considering their relation to the incidence. Diesen and Lindell have presented a number of common sources of error while evaluating evidence. It is important that the judges are aware of these risks. One such source is that the assessment is based directly on the general impression of the evidence rather than analyzing and valuing each part separately. After the general part, the special problems connected with valuation of evidence concerning criminal intent are discussed. The connection between the evidence itself and what it is supposed to prove can be harder to estimate regarding this part of the crime since it is more individual. In Swedish criminal law, there are different types of criminal intent that can be used. In most cases of attempted murder it is the intent called ''likgiltighetsuppsåt'' (intent based on indifference) that is being used. Therefore, a text on how that type of intent should be used is included in this part of the essay. After this, the question of what degree of probability for the criminal effect that should be demanded in order for the perpetrator to have had the necessary intent is discussed. According to both the Supreme Court of Sweden and the doctrine, the probability apprehended by the perpetrator is an important factor while evaluating the evidence of the criminal intent. Borgeke says that every assessment of intent has to begin with an evaluation of this factor and suggests that the level of probability be placed on a scale consisting of eight steps. This can be used as a starting-point to decide what else is needed to make a decision in the question of intent. The Supreme Court has presented a number of factors that should be seen as signs of indifference and therefore of intent. The factors have also been discussed in the doctrine and include reckless behaviour and the perpetrator's interest in the matter. The practical part of the essay consists of a study of legal cases where twelve cases from the court Svea Hovrätt are discussed. These are all the cases from the first six months of 2007 where the prosecutor claimed that the crime should be seen as an attempted murder. The summary of the cases focuses on the parts that deal with the actual course of events, the valuation of the statements of the parties and to some extent of other evidence, and the assessment of criminal intent. The analysis aims to link the theoretical part of the essay to the practical with the purpose of finding out how the question of intent is handled in legal cases regarding attempted murder. First, the valuation of evidence in general is discussed. In my opinion, there is a lack of reasoning when it comes to the valuation of witnesses as evidence. It is also noteworthy that no alternative hypothesis regarding the course of events is presented by the court in the cases where the perpetrator is silent. After this, the way the courts apply the intent based on indifference is compared with the theory presented on the matter. The way they handle the question of intent differs a lot. In some cases one of the two steps included is disregarded. However, such mistakes can be an error in wording rather than in thinking. The end of the analysis treats the more specific question of what factors have been vital in the assessment of the criminal intent in the twelve legal cases. The factors that were proposed by the Supreme Court do not seem to have had a very big impact on the courts. The only one that can be said to have influenced some of the decisions is reckless behaviour. In fact, the course of action seems to be the most important factor. Threats that have been expressed by the perpetrator have also been given importance where it occurred. Another factor of significance is whether or not the wounds have been life-threatening.},
  author       = {Zettergren, Lina},
  keyword      = {Processrätt,Straffrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Med uppsåt att döda? En utredning om gränsdragningen mellan grov misshandel och försök till mord},
  year         = {2008},
}