Nödvärn - den enskildes rättigheter vid ett brottsligt angrepp
The Right of Self-defence - the Right granted to the Victim of a Violent Criminal Attack
Author
Summary, in English
This paper describes the Swedish law regarding the right of self-defense. The right of self-defense is the right for civilians acting on their own behalf to defend themselves when a violent criminal attack occurs.
Using a legal dogmatic method, it intends to describe the rights and possibilities being approved to a civilian who uses his right of self-defense when being attacked. The paper will describe established law and analyze the application of the right to self-defense in case law. Finally, an analyze of the right of self-defense, the way it is regulated in Swedish law will be made.
The right of self-defense is being granted to the person being attacked, or anyone else nearby, whenever a violent criminal attacks occurs. The rule of law is prescribed in the 24 chapter 1 § Brottsbalken, the Swedish criminal code. To be considered legal, the action being used in self-defense must not be considered obviously unjustifiable by a court of law. When making the decision, the court shall take into consideration the nature of the attack, the significance of the attacked object and other circumstances.
The right of the self-defense is an objective, relative rule of law. The fact that the rule is objective, means that it is the actual situation that should be taken into consideration by the court, not the accused’s perception of the situation. The objectivity of the rule also means that if the violence exerted but the attacked person is considered not obviously unjustifiable, it is not considered a criminal action. The relativity of the rule means that the court has to take into consideration the nature of the attack and the significance of the attacked object when deciding whether the violence exerted by the accused is obviously unjustifiable. In Strafflagen, the ancient Swedish criminal code, the right of self-defense was absolute, which means that the court did not have to take those circumstances prescribed in today’s legal rule into consideration; the violence exerted in self-defense was legal as long as it was considered necessary to fend of the attack.
The bill describes the purpose of the right of self-defense. The rule intends to let the attacked person use a certain amount of violence to defend oneself when a violent criminal attack occurs. The fact that the defending party is allowed to use force that is not considered obviously unjustifiable, means that violence considered unjustifiable is legal. The expression obviously unjustifiable intends to grant civilians a wide margin when committing the act of self-defense. However, to investigate whether the right of self-defense is appropriate and correspond with the views described in the bill, the application of the right of self-defense in case law must be studied. In case law, the Swedish Supreme Court tends to consider the exerted violence obviously unjustifiable, even though its necessary to fend of the attack, and thus does not exceed the wide margin that should be approved when repelling an attack. The fact that the right of self-defense is relative means that under certain circumstances, an act that is necessary to fend of the violent criminal attack, is considered obviously unjustifiable, and thus illegal. To guarantee an attacked person the rights of self-defense, it is necessary to investigate the rules considering the right of the self-defense, and possibly change them.
Using a legal dogmatic method, it intends to describe the rights and possibilities being approved to a civilian who uses his right of self-defense when being attacked. The paper will describe established law and analyze the application of the right to self-defense in case law. Finally, an analyze of the right of self-defense, the way it is regulated in Swedish law will be made.
The right of self-defense is being granted to the person being attacked, or anyone else nearby, whenever a violent criminal attacks occurs. The rule of law is prescribed in the 24 chapter 1 § Brottsbalken, the Swedish criminal code. To be considered legal, the action being used in self-defense must not be considered obviously unjustifiable by a court of law. When making the decision, the court shall take into consideration the nature of the attack, the significance of the attacked object and other circumstances.
The right of the self-defense is an objective, relative rule of law. The fact that the rule is objective, means that it is the actual situation that should be taken into consideration by the court, not the accused’s perception of the situation. The objectivity of the rule also means that if the violence exerted but the attacked person is considered not obviously unjustifiable, it is not considered a criminal action. The relativity of the rule means that the court has to take into consideration the nature of the attack and the significance of the attacked object when deciding whether the violence exerted by the accused is obviously unjustifiable. In Strafflagen, the ancient Swedish criminal code, the right of self-defense was absolute, which means that the court did not have to take those circumstances prescribed in today’s legal rule into consideration; the violence exerted in self-defense was legal as long as it was considered necessary to fend of the attack.
The bill describes the purpose of the right of self-defense. The rule intends to let the attacked person use a certain amount of violence to defend oneself when a violent criminal attack occurs. The fact that the defending party is allowed to use force that is not considered obviously unjustifiable, means that violence considered unjustifiable is legal. The expression obviously unjustifiable intends to grant civilians a wide margin when committing the act of self-defense. However, to investigate whether the right of self-defense is appropriate and correspond with the views described in the bill, the application of the right of self-defense in case law must be studied. In case law, the Swedish Supreme Court tends to consider the exerted violence obviously unjustifiable, even though its necessary to fend of the attack, and thus does not exceed the wide margin that should be approved when repelling an attack. The fact that the right of self-defense is relative means that under certain circumstances, an act that is necessary to fend of the violent criminal attack, is considered obviously unjustifiable, and thus illegal. To guarantee an attacked person the rights of self-defense, it is necessary to investigate the rules considering the right of the self-defense, and possibly change them.
Department/s
Publishing year
2011
Language
Swedish
Full text
- Available as PDF - 310 kB
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- Nödvärnsrätt
- relativ
- absolut
- den enskilde
- brottsligt angrepp
- uppenbart oförsvarligt.
Supervisor
- Per Ole Träskman (Professor)