Straffvärde – som rättslig konstruktion

Sammanfattning: This doctoral thesis examines the concept of penalty value (Sw. straffvärde), which is central for Swedish sentencing law. It is impossible to determine the penalty for a crime without establishing a penalty value, and the penalty value is usually of essential importance for how severe the sentence will be. It is not only courts that decide upon penalty values, the legislator also contributes by giving statutory minimum and maximum penalties – i.e. ‘penalty scales’ – for crimes. The purpose of the thesis is to categorise and systematise the reasons and assumptions underlying the assessment of penalty values. Given the penalty value’s fundamental role in justifying the level of criminal repression, such an approach can be considered warranted.Penalty value expresses the principle of retrospective proportionality – i.e. the standard that the punishment should fit the seriousness of the crime. According to a generally accepted view, this principle must be regarded as relative: to determine what is a sufficiently severe penalty, comparisons with other crimes and penalties are needed. Here, one can say that the notion of penalty value adds something by implying that it is possible to determine a specific penalty corresponding to the seriousness of a crime. Thus a penalty value can be construed as a function of two parameters: the (relative) seriousness of the crime and the (fixed) general level of punishment. At the heart of the present investigation are therefore two questions, namely: (i) what the seriousness of the crime signifies and (ii) how the forces that determine the level of punishment are to be ascertained.With regard to the first question (i), the assessment of seriousness often coincides with an assessment of blameworthiness, i.e. how much censure the criminal act deserves. However, the thesis argues that this does not always have to be the case. Right or wrong – sometimes the legislator determines the seriousness of the crime at least in part following a purely instrumental assessment. This prospective assessment can be aimed at an alleged need to prevent crime through a more severe penalty, but also at using the penalty to communicate repudiation with regard to a certain type of offence. To put into words the result of this prospective assessment, the thesis introduces the term p-harm – as opposed to r-harm, which relates retrospectively to the blameworthiness of the act. As said, it is the legislator who makes these forward-looking considerations and occasionally gives penalty values such content. At court-level the determination of penalty values – even when it is based on factors related to p-harm – is invariably ‘norm-rational’ and retrospective.Concerning the second question (ii), the thesis argues that the forces influencing the general level of punishment should be systematised in the form of a balance between ends and means. An established public law principle that can serve to provide this balance structure is the notion of prospective proportionality. Although this way of conceptualising the punishment level must be seen as an ideal-typical and impracticable construction, it does raise certain issues concerning the justification and purpose of punishment – which otherwise risk remaining unaddressed in a system founded on retrospective proportionality.

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