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Arrests can be a tool in the fight against crime. This is the opinion of most parties, which have various proposals for “compulsory detention” so that more people can be deprived of their liberty while awaiting trial.
But there really is no such thing – and an expert is calling for a cooling in the talk about detentions.
In 2018, the minimum sentence for serious weapons offenses was increased to two years in prison. This not only means that those convicted of this now have to spend more time in prison, but also that the presumption of detention must apply in the case of suspected serious weapons crime – what is sometimes called “mandatory detention”. That limit goes precisely for the minimum sentence of two years in prison.
This has been described as an important part in the fight against the criminal networks, as more people connected to them and who have been caught with weapons can now be deprived of their liberty.
A check that TT made with the parties before the election shows that all of them want mandatory detention to apply to even more crimes, except the Left Party, which wants the issue to be investigated.
For example, the Social Democrats want to solve this by lowering the limit so that the presumption of arrest applies to all crimes with a minimum penalty of 1.5 years in prison. At the same time, S wants to raise the minimum sentence for robbery to exactly 1.5 years in prison.
– If a young person has been robbed or seriously abused, you should not have to meet the perpetrator on the street the next day, Prime Minister Magdalena Andersson (S) has said.
The moderates want to go even further and have proposed that mandatory detention should apply to a minimum sentence of one year in prison.
Same requirement
But there really is no “mandatory” detention. In addition to the current two-year rule, as always, certain other conditions must be met for someone to be detained.
– So it is not the case that you are automatically detained, but a court must still look at whether there is at least one of the three grounds for detention, i.e. whether there is a risk that the person will continue to commit crimes, destroy or affect the evidence or that there is a risk of flight, says Dennis Martinsson, PhD in criminal law.
You must also still be a suspect on probable grounds. But the two-year rule definitely gives stronger reasons to detain and a lowering of the limit would very likely lead to more people being detained.
– If the two-year rule is changed to 1.5 years, or one year, then there will be an expansion of who can be detained, says Dennis Martinsson.
Nothing “direct”
Another concept that is sometimes heard is “direct detention”, which must be interpreted as a reformulation of “compulsory detention” as no parties have so far come up with any proposal regarding the order of how detentions take place – that prosecutors request someone to be detained and the court decides on the matter during a negotiation – must be changed.
– After all, it is a court that has to look at whether the conditions for detention are met. It is never the case that it is an individual police officer or prosecutor who can detain someone, so this “direct arrest” may mislead the thinking, says Dennis Martinsson.
He sees two tendencies when it comes to arrests, and how politicians reason about them:
– Detention in general is starting to be used as a reason in itself to carry out tougher sentences and I think that is something new, at least to this extent.
Calling for cooling
He also believes that politicians sometimes talk about detention as if it were a punishment, when it is primarily a tool for police and prosecutors during the preliminary investigation.
– Even if you are detained, it does not mean that you will eventually be prosecuted. And even if you are charged, it does not mean that you are convicted. I would call for a certain cooling down of how you talk about detention, because sometimes you talk about it as if it were a punishment and it is not, says Martinsson.
Another question that arises if the politicians’ proposal becomes a reality is how all those deprived of their liberty will be accommodated in the country’s prisons. There has long been a shortage of places – even now the occupancy rate is basically 100 percent according to the Prison Service.
“The mission of the criminal justice system is to receive suspects and convicts, and in order to be able to do that in the future as well, we are expanding institutions and detention centers all over the country. The fact that the rate of change in the area of criminal policy has long been high affects our operations. In our latest forecast, which we submitted to the government in July, we flag a continued difficult situation in terms of both places and the supply of skills. The overall effect of new legislation is difficult to overview and therefore constitutes an uncertainty,” says director general Martin Holmgren in a written comment to TT.
Facts
This is how the parties want to change the detentions
The Social Democrats want to lower the limit so that the presumption of arrest applies to all crimes with a minimum penalty of 1.5 years in prison. The other week there was a legal council referral about this, which if it goes through crimes would hit crimes such as aggravated assault or aggravated extortion. There are also proposals to tighten the minimum sentence for robbery to 1.5 years in prison, then that would also be included.
The moderates have long wanted to go even further and propose a limit on the minimum sentence of one year in prison. Earlier this summer, this proposal was also included in a debate article about how women should be protected against violence and oppression of honor, which M wrote together with L, SD and KD.
Other parties have indicated other solutions that would allow more people to be detained. Both the Green Party and the Center Party, for example, want to increase the penalty for gross rape of women to two years, that way it would be covered by the presumption of detention according to today’s rules.
The Liberals have also stated that they want to change the rules for detention in such a way that all crimes with imprisonment in the punishment scale must be grounds for detention. Today, detention may only take place if imprisonment is on the penalty scale, but not when the expected penalty is a fine.
“The purpose is, among other things, to create better opportunities to access habitual criminals who commit repeated crimes, such as theft,” writes L.
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Arrests
Anyone who is on probable grounds suspected of a crime that can result in imprisonment for at least one year may be detained, if any of the three grounds for detention exist. It is about there being a risk that the person will stay away, that the person will remove evidence or that the person will continue their criminal activities. Arrest may not take place if it can be assumed that the penalty will stop at a fine.
It is the court that decides whether detention should take place, after a prosecutor comes in with a request for this.
You can also be detained as a reasonable suspect, if it is particularly important pending further investigation. The prosecutor then has a week to return to the court with evidence that strengthens the suspicion, otherwise the person must be released.
If the minimum sentence for the crime in question is at least two years in prison, the so-called presumption of arrest applies, which means stronger reasons for arrest. But there must still be at least one of the three grounds for detention above.
Source: The Public Prosecutor’s Office, the Swedish Courts Administration, the Code of Procedure.
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