court of appeals Archives • SwedeInternational

Lesser prison sentences due to Covid

hard times in prison
pic: YLE/Ulrika Stagnäs-Lund

Covid changes a lot of things. Even prison sentences. DN reports that the sentences being handed out after conviction are being shortened because of the isolation measures instituted at the prisons to keep Covid out.

Yesterday, a man convicted of selling large amounts of narcotics was given a 5-year sentence instead of the original 6-year sentence because of the pandemic. “I pressed for a lesser sentence… he isn’t allowed to have visitors. It’s very trying,” said defense lawyer Frida Wallin.

In another particularly serious narcotics case (synnerligen grovt narkotikamål) the number of days the suspect was held before being charged was counted in reducing the sentence the suspect eventually received. While he was being held, he wasn’t allowed visitors due to the risk of spreading Covid. In this case, the judge of appeal (hovrättsråd) explained, the later-convicted felon was under particular physical and mental strain during that time, which should be taken into account in sentencing, even if the restrictions themselves were proper.

“Since a court has in these cases made the call that [Covid] can affect sentencing, we can be pretty sure that there will be more sentencing of this kind,” reported lawyer Carl Mellberg. “We have to hope it’s a temporary situation and doesn’t go on for a long time.”

“It’s extremely tough not to be able to have visitors” said lawyer Frida Wallin. Ask any innocent inmate in Sweden’s old age homes.

12 Dec. – watch the hands

Erlandsson and his hands leaving court
pic: Jessica Gow /TT

Yesterday, the previous Minister for Rural Affairs (landsbygdsministern), and previous Center party politician, Eskil Erlandsson, was judged not guilty of sexual harassment by Stockholms District Court, DN reports. Erlandsson was accused of putting his hand on the thigh of three different women.

In one case, the court could not determine absolutely that the event had actually happened, and therefore dismissed the case.

In the second case, the court found that the defendant had indeed placed his hand on the woman’s pants-covered thigh not once, but twice, for a second or so. The court found, however, that this act did not have enough of a sexual nature to be criminal.

In the third case, the court found that the defendant had put his hand on the woman’s stockings-covered thigh, and had also fiddled with the hem of her skirt. Again, the court found that his touch did not have enough of a sexual nature as to be criminal. In a related judgement, the court did not find that any molestation (ofredande) had occurred either.

“Every touch that is perceived as unpleasant or unwished for isn’t prosecutable as molestation” the court wrote in a unanimous verdict.

But even Mårtin Schultz, SvD’s legal expert, wonders about this verdict just a little. “I wonder if there isn’t a gap between law and society’s standards here” Schultz writes. “Should it be allowed to briefly squeeze someone’s thigh for a moment? Should even momentary and less serious violations of physical integrity be protected by criminal law?”

Erlandsson first claimed he suffered from “the Viking sickness” (Vikingasjukan) in which the collagen in, say, the hand, thickens and shortens causing one or more fingers to crook – to crook and slip under the skirt lying on, say, the woman’s thigh you’ve just put your hand on, for instance.

To this, at least, the court gave no credence. But the verdict has made it clear that it’s ok to just give your female colleague a quick thigh squeeze because it’s not sexual enough for her to complain about.

It’s possible that jail time or day fines might be slightly over-prosecution (for more about day fines, see this blog) . But neither is it ok and something that should be put up with “because female” and boys will be boys. It’s too bad that the court could not render a more nuanced judgement. Just how many men’s thighs has Erlandsson put his hand on, one can wonder.

25 Oct. – court says no incitement to racial hatred

NMR march and protest Göteborg 2017
pic: Roger Turesson (DN.se)

Ten members of the neo-nazi Nordic resistance movement group (Nordic motståndsrörelsen, NMR) were today pronounced not guilty of incitement to racial hatred (hets mot folkgrupp) in court in Göteborg. Five of the charged were convicted of violent rioting.

The indictments stemmed from the protests surrounding the book expo in Göteborg in 2017, during which there were protests both at the presence of an extreme right-wing publication that was being allowed to display at the expo, and at a march by the NMR directly by the book expo. Many NMR activists protested the protest, leading to clashes.

The court case did not just try to convict NMR members for being violent, but also for inciting racial hatred. In particular, the prosecutors argued that their bearing of the symbol of an arrow called the tyrrunan – or “the symbol of Tyr” who was a minor god in Nordic mythology – that is a sign of NMR membership, along with their otherwise distinctive style of clothing, their speech, and their slogans, together comprise the concept incitement to racial hatred. In lead prosecutor Jonas Martinsson’s argument, these circumstances together were enough and at least equal to the usual requirement for incitement which is generally a specific racist comment or publication (SvD.se/hets).

The court disagreed, stating that the demonstrators’ collected expressions were not of a kind that clearly expressed a connection to national socialist movements during the 1930s and 1940s. To publicly express membership in, or sympathy with, NMR, can not be considered incitement to racial hatred, the court stated in a press release (DN.se/hets).

Commentators have suggested that it isn’t too surprising that at this lower level a court will find similarly to earlier cases. For example, in a court case from 2018, the prosecution tried to link the tyrrunan arrow symbol to the Nazi movement, but didn’t succeed. As opposed to the swastika, the court said then, the arrow symbol was not “generally known as being connected” to the national socialist movement. Nor had the prosecution made that particular argument, the court stated. Therefore the posters bearing the arrow symbol could not be considered incitement to racial hatred (SvD.se/symbol). It is possible that this was one case that the court had in mind.

Prosecutor Martinsson said that it’s very likely they will appeal. Hopes are not only to get a different result but also to expand the definition of incitement to include how many people experience it.

15 July – high court rules on “negligent rape”

The Swedish Court of Appeals (hovrätt) sentenced a man to jail for eight months after he was found guilty of negligent rape (“oaktsamt våldtäkt”), DN.se reports. The court ruled that the man was aware that the woman was likely a victim of human trafficking and was therefore not a willing partner: After an encounter with the woman, the man reportedly wrote on his facebook page “Trafficking suspected. Not recommended.”

While the man pled guilty to buying sex and to degrading photography (“kränkande fotografering”) he appealed the rape charge. The Swedish court upheld the previous court’s judgement but reduced the sentence from one year to eight months. The reduced sentence was likely due to following the punishment precedent set by the Swedish Supreme Court in another negligent rape case only several months ago.

On the 1st of July, 2108, the law changed to make sex illegal unless it is mutually, expressly and/or obviously consensual. TT reports that to be convicted of rape alone, the perpetrator must have acted intentionally. If the perpetrator was “merely” grossly negligent in ascertaining the victim’s willingness they can be found guilty of “negligent rape”.