Provokation, affekt och den straffrättsliga värderingen av våldsbrott

Sammanfattning: The theme of this doctoral thesis is provocation as a mitigating circumstance in assessments of intentional homicide and assault in Swedish criminal law. In several other countries, the question of provocation has been widely debated and scrutinized in the legal literature. However, in Swedish criminal law, provocation – as well as aggravating and mitigating circumstances in general – has not been given much attention.The concept of provocation is defined in the thesis as a situation where a person in an agitated state of mind has committed a crime after being wronged by the victim. On the basis of this definition, two provisions of the Swedish Criminal Code in particular are relevant in cases of provocation. One is Chapter 29, Section 3(1) of the Criminal Code, which states as a mitigating circumstance that the act has been provoked by the manifestly insulting conduct of another person. The second provision is Chapter 29, Section 3(2) of the Criminal Code, which provides that where, inter alia, a person, as a result of emotions, had a reduced capacity to control their conduct, this is viewed as a mitigating circumstance. An analysis of these two provisions is the main focus of the thesis. One of the key arguments of the thesis is that both these provisions build upon conceptions of emotions, such as ideas about what anger is and what reactions are understandable for an angry person. In the thesis, these conceptions are contrasted by conceptions of anger in psychological research on emotions, but also by perspectives on societal developments regarding how violence is viewed. Based on this analysis conclusions are drawn regarding the design and application of the provisions. The thesis also discusses the tendency in case law from recent years to view the absence of provocation as an aggravating circumstance.Moreover, the thesis examines the relationship between provocation and certain – in various ways related – aggravating circumstances. The aggravating circumstances examined are motives of hate crime and honour according to Chapter 29, Section 2 (7 and 10) of the Criminal Code, and particular and careful planning according to Chapter 3, Section 1 and Chapter 29, Section 2 (6) of the Criminal Code. A starting point of the argumentation is that most aggravating and mitigating factors can exist in the same case, independent of each other, but some factors will overlap. For example, an offence cannot be both premeditated and impulsive at the same time.  In the thesis, conclusions are drawn on whether conflicts of this type exist regarding provocation and the aggravating factors mentioned above.