Skuld, ansvar och tillräknelighet

svenska reformer ur tyskt perspektiv

Abstract

The Swedish penal system regarding mentally ill or disturbed offenders differs from those of most other countries by having abolished the concept of criminal incapacity for acts committed under mental defects ("plea of not guilty by reason of insanity ") in 1965. As of now, the mentally ill are judged and sentenced under the ordinary criminal rules and procedures, though imprisonment is excluded as a possible sanction. The current system has been criticised, however, since its introduction, and in 1996, a parliamentary committee proposed to re-establish mental incapacity in criminal law. This proposal is at present under further evaluation.

On this background, the present article examines the Swedish system from a comparative point of view, contrasting it with the German system, which has never abandoned the notion of mental incapacity. In the first part, the author examines the Swedish law from a theoretical point of view and finds that some elements therein may, and others must, be seen as expressions for the concept of (in-)capacity, although that concept is supposed to be abolished. This is particularly evident in the stipulation concerning the mitigation of sentences in cases of minor mental deficiency. In the second part, the author outlines the German system in regard to capacity and suggests potential changes in Swedish law. Specifically, the author proposes that Sweden classify psychiatric care as a sanction distinguished from, but parallel to ordinary criminal sanctions (such as fine or imprisonment), and that risk of recidivism (dangerousness) is used as a prerequisite for this sanction.