Sweden / Supreme Court / Case No. B6145-23

Prosecutor- general (Riksåklagare) v MB
Deciding body type
National Court/Tribunal
Type
Decision
Decision date
06/03/2024
  • Sweden / Supreme Court / Case No. B6145-23

    Key facts of the case:

    MB was convicted by the District Court (Tingsrätten) for gross violation of a woman's integrity under Chapter 4, Section 4a, second paragraph of the Criminal Code (Brottsbalk (1962:799)), in its version prior to 1 January 1 2022. The crime was committed between 26 August 2021 and 17 March 2023. MB was also convicted of encouraging suicide under Chapter 4, Section 7a, committed on 11 February 2023, and of violation of a child’s integrity under Chapter 4, Section 3 of the Criminal Code, committed on 17 March 2023. The first two crimes were committed against his then-partner, and the latter crime was committed against one of their two children. The sentence was set at one year and two months in prison. MB, who is a Polish citizen, was also deported from Sweden with an eight-year re-entry ban. In the deportation matter, the District Court applied the Aliens Act (Utlänningslag (2005:716)) in its version effective from 1 August 2022.

    The Court of Appeal (Hovrätten), applying Chapter 4, Section 4a, second paragraph of the Criminal Code and Chapter 8a of the Aliens Act in their most recent versions, amended the District Court's judgement by including the crime of encouraging suicide within the gross violation of a woman's integrity instead of treating at as a separate offence. Furthermore, the Court of Appeal increased the sentence to one year and six months in prison but revoked the deportation order.

    In the Supreme Court (Högsta domstolen), the Prosecutor-general requested that MB be deported from Sweden and be subject to an eight-year re-entry ban.

    Key legal question raised by the Court:

    The key legal questions in the case concern which version of the Criminal Code's and the Aliens Act's provisions on deportation due to criminal offenses should be applied when some of the criminal acts included in the offence gross violation of a woman's integrity were committed after amendments to the respective legislation entered into force.

    An additional key legal question pertains to the conditions for the deportation of an EEA citizen who has been convicted of gross violation of a woman's integrity in Sweden.

    Outcome of the case: 

    The Supreme Court reversed the Court of Appeal's judgement, ordering that MB be deported from Sweden and banned from returning for eight years. In all other aspects, the Court of Appeal's judgement remained unchanged.

    The gross violation of a woman’s integrity committed by MB included twelve criminal acts. Nine of the criminal acts were committed after the amendment of Chapter 4, Section 4a of the Criminal Code entered into force on 1 January 2022. The Supreme Court determined that these nine acts met the criteria for being classified as gross violation of a woman’s integrity, and that the later version of the provision should therefore be applied. In its reasoning, the Court referred to the prohibition of retroactive criminal legislation in the Swedish constitution as well as in Article 7 of the European Convention on Human Rights (ECHR) and Article 49 of the Charter of Fundamental Rights of the European Union (EU Charter).

    When considering whether MB should be deported, the Supreme Court assessed that Chapter 8a of the Aliens Act should be applied in its current version. The Supreme Court found that the general conditions for deportation were met, as the combined penal value exceeded one year and six months in prison. In its reasoning, the Court referred to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) and the (at the time) proposal on the EU Directive on combating violence against women and domestic violence (VAW Directive) stating that violence against women and violence in intimate relationships violates fundamental rights enshrined in the EU Charter. The Supreme Court therefore assessed that gross violation of a woman's integrity is a crime that poses such a serious threat to public order that it can result in the deportation of an EEA citizen. The Court found that the gross violation of a woman's integrity and MB's overall behavior constituted a real, actual, and sufficiently serious threat to fundamental societal interests which warrants deportation. Furthermore, MB's connection to Sweden was not deemed strong enough to consider the deportation disproportionate.
     

  • Paragraphs referring to EU Charter

    The prohibition of retroactive criminal legislation is also expressed in Article 7 of the European Convention on Human Rights and Article 49 of the Charter of Fundamental Rights of the European Union.

    (…)

    It can further be noted that Sweden has acceded to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul Convention), which entered into force in 2014. In 2023, the European Union also acceded to the Convention. Moreover, in March 2022, the European Commission presented a proposal for a directive on combating violence against women and domestic violence. The preamble to the proposal states that violence against women and domestic violence violate fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. (See Proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence, COM(2022) 105 final of 8 March 2022, paragraph 3 of the preamble, and the same paragraph in the preamble to the general approach to the proposal adopted by the Council on 17 May 2023.)

  • Paragraphs referring to EU Charter (original language)

    "Förbudet mot retroaktiv strafflagstiftning kommer även till uttryck i artikel 7 i Europakonventionen och artikel 49 i Europeiska unionens stadga om de grundläggande rättigheterna.”

    ”Det kan vidare konstateras att Sverige anslutit sig till Europarådets konvention om förebyggande och bekämpning av våld mot kvinnor och av våld i hemmet (Istanbulkonventionen), som trädde i kraft 2014. År 2023 anslöt sig även Europeiska unionen till konventionen. EU-kommissionen lade dessutom i mars 2022 fram ett förslag till direktiv om bekämpning av våld mot kvinnor och våld i nära relationer. I ingressen till förslaget framgår att våld mot kvinnor och våld i nära relationer kränker grundläggande rättigheter vilka fastställts i Europeiska unionens stadga. (Jfr Förslag till Europaparlamentets och rådets direktiv om bekämpning av våld mot kvinnor och våld i nära relationer, COM(2022) 105 final av den 8 mars 2022 p. 3 i ingressen och samma punkt i ingressen till den allmänna riktlinje om förslaget som rådet antagit den 17 maj 2023.)”