@misc{9226807,
  abstract     = {{This thesis examines the scope of criminal liability for attempted sexual
offences against children online when a police officer impersonates a child,
and how this liability relates to the right to a fair trial under Article 6 of the ECHR.

The legal position has shifted markedly in recent years. In NJA 2023 p. 393
"Vapenattrappen" (The weapon replica), the Supreme Court of Sweden
clarified the scope of impossible attempts under Chapter 23, Section 1 of the
Swedish Penal Code. In response, the legislator introduced a new second
paragraph in that provision, extending attempt liability to cases where the risk
of the offence being completed has been eliminated as a result of a measure
taken by a public authority to combat crime. At roughly the same time, the
European Court of Human Rights in Helme v. Estonia adopted a more permissive approach to online undercover operations concerning sexual offences
against children.

The analysis is structured around two paradigmatic scenarios: the takeover
scenario, in which the police take over an ongoing conversation between a
real child and a perpetrator, and the constructed scenario, in which the police
create a fictitious profile from scratch. The takeover scenario will, as a rule,
fall within the scope of criminal liability and within the limits set by Article
6 ECHR. The constructed scenario is more complex. Whether such cases fall
within the new statutory rule depends on how strictly the causation
requirement (which follows from the term as a result of) is interpreted. On a
strict reading, criminal liability should be excluded in cases where no real
object of the offence has ever existed, whereas a more purposive
interpretation suggests that liability extends to such situations as well. There
is, however, no principled objection to punishing attempts directed at an
object of the offence that has never existed. On the contrary, it is difficult, on
the basis of traditional theories of criminal attempts, to explain why a
circumstance eliminating the risk of completion should be treated differently
depending on whether it is attributable to a state actor or to a non-state actor,
when this is unknown from the perpetrator’s perspective.

A broader observation is that the construction of attempt liability has
previously left certain incited acts outside the scope of criminal liability, with
the result that no question of criminal responsibility has arisen. The question
of unlawful entrapment has thus not been examined in these cases. The new
statutory rule disrupts this settled order. The burden of limiting criminal
responsibility for incited acts of the kind addressed in this thesis is thereby
shifted onto the doctrine on entrapment. At the same time, Swedish law lacks
a developed entrapment doctrine of its own; the criminal liability of the
person subjected to entrapment is instead assessed on the basis of the
minimum standard derived from the case law of the European Court of Human Rights, which has been loosened through Helme. The substantive
limit on the scope of police action in these cases currently rests mainly on a
single threshold, the requirement that the authorities remain essentially
passive in the individual interaction, the precise content of which in an online
context currently remains unresolved.}},
  author       = {{Árnason, Tumi}},
  language     = {{swe}},
  note         = {{Student Paper}},
  title        = {{Barn som otjänligt brottsobjekt - En analys av den provocerades straffrättsliga ansvar vid provokativa åtgärder beträffande sexualbrott mot barn på nätet}},
  year         = {{2026}},
}