Relief for Substantive Defects; Also Concerning the Length of Time a Suspended Sentence is Registered in the Criminal Records

2016-08-20 i Domstol
FRÅGA
What do you do if you have been sentenced in unfair sentence from the court and does not appeal in the limited time or in the right time . I got villkorlig dom in 2014. But with out böter or fängelse. I want to know if I can make ny prov to resolve this case . The other Question is how long it register with police in my criminal records . My case was
SVAR

Dear asker,

Thank you for sending your questions to Lawline.

In the following, I shall explain the relevant Swedish law and give you some concrete recommendations on what measures you might consider taking. First, I will be explaining the relevant ways with which you may appeal your sentence—despite that no longer being possible through normal means. I shall thereafter explain how long your sentence will be recorded in your criminal records. I conclude with a quick summary of what I have said.

I have inserted links to the relevant Swedish statutory texts in case you want to read more and are able to find someone who can translate them for you. There also exists an English translation of the Swedish Code of Judicial Procedure (1942:740) (henceforth referred to as the SCJP), which you may find HERE.

Appealing a Verdict for Which the Appeal Period has Expired

A relief for a substantive defect (”resning” in Swedish) is one of the means by which you can appeal a sentence that you can no longer appeal in a normal way. A successful application for a relief for a substantive defect means that you will have a new trial, where your action is examined once more.

To be granted relief for a substantive defect, you must first apply for it at the relevant court, which might be a court of appeals (”hovrätt” in Swedish) or the Supreme Court (”Högsta domstolen” in Swedish). If the judgment which you wish to have re-examined has been delivered by a district court (”tingsrätt” in Swedish) then the relevant court will be a court of appeals. If the judgment was delivered by a court of appeals, then the relevant court will be the Supreme Court. This follows from section 4 in chapter 58 of the SCJP.

Unfortunately, there are also certain criteria that must be fulfilled if your application is to be successful. The relevant criteria can, in your case, primarily be found in section 2 in chapter 58 of the SCJP. In rough terms, the mentioned criteria require that one of the following things are present:

1. There has been a certain kind of serious misconduct which has affected the outcome of the original trial, such as if the prosecutor is guilty of neglect of his or her official duty in a way which affected the outcome of the original trial.

2. A legally qualified judge or the prosecutor have been disqualified, when that disqualification could have affected the outcome of the original trial.

3. A piece of evidence which has been used in the trial was forged or false, and this piece of evidence can be assumed to have affected the outcome of the original trial

4. An important piece of evidence which was not invoked in the original trial has come to light.

5. The court has manifestly misapplied a statutory provision in its judgment.

For further reading, you may consult the English translation of the SCJP. You can find it HERE, or up above.

Unfortunately, I am unable to determine if you have any chance of success in an application with regards to the information you have provided. Therefore I can only suggest that you study the relevant provisions and/or consult further legal expertise. If you need help in writing an application I suggest that you consult a specialised lawyer, which you may do HERE.

An alternate measure with which to effectively appeal your sentence is relief for grave procedural errors. The relevant provisions can be found in chapter 59 of the SCJP. However, as I understand your question, there has not been any grave procedural error.

How Long Will the Sentence be Registered in Your Criminal Records?

The criminal records are regulated by the Swedish lag (1998:620) om belastningsregister (which can be roughly translated as the ”Criminal Records Act”), and the Personal Data Act.

In your case, the information concerning your suspended sentence (”villkorlig dom” in Swedish) will be removed ten years after the judgment, according to point 4 a of section 17 in the Swedish Criminal Records Act. This means that the information will be removed from your criminal records in about eight years—assuming that no exceptions are applicable.

Summary

In order to have a re-trial, you could try applying for relief for a substantive defect. Unfortunately, I am unable to determine your chances of success with regards to the information you have provided. The information concerning your suspended sentence in your criminal records should be removed in about eight years.

I hope that this has been a satisfactory answer to your questions!

If you need further help with relief for substantive defects or criminal records, then you may contact us by telephone 08-533 300 04 (mondays to wednesdays 10:00–16:00) or by e-mail at info@lawline.se.

Yours sincerely,

Simon Göransson
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