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While community service for juveniles was originally only an additional legal consequence, since 2007 it has been an independent legal consequence.419 All these developments illustrate that the Swedish juvenile criminal justice system has one foot in the adult criminal justice system and one in child welfare – two systems based on fundamentally different principles.420 As mentioned in section 1.2., the ideology of justice (as the guiding ideology of the adult criminal justice system) and the ideology of welfare (as the guiding ideology of child welfare) aim in fundamentally different, even diametrically opposed, directions.421 The shifts and combinations I have described in this section demonstrate the welfare/justice clash.

equivalence, predictability, and equal treatment,424 even emphasizing a more consistent shape for legal consequences.425 Swedish law thereby follows a concept of juvenile criminal law which is oriented towards adult criminal law but with a reduction of the young offender’s “guilt” because of their age.426 This reduction finds expression in chapter 29 §7 BrB.427 This solution can be traced back to the interest in creating a consistent and just jurisprudence.428 The importance of the balance between the severity of the offence429 on one hand and the response of society on the other hand is emphasized several times in the preparatory works.430 This balance is embodied in the principle of proportionality as the central principle of the Swedish criminal legal system.431 Proportionality should ensure legal certainty and consistency in sentencing, which is harder to achieve with an individualistic approach, as the example of the German juvenile criminal justice system has shown.432

424 See prop. 1997/98:96, 141–7; for more in general regarding the principles guiding the choice of legal consequences, see prop. 1987/88:120, 36.

425 See prop. 1997/98:96, 147–51 and prop.2005/06:165, 42.

426 The contrast here is with the German model of an “educative criminal law”.

427 First Jareborg and Zila and then Borgeke tried to give more substance to this rule and introduced the following guidelines, widely applied by the courts – even HD (see for example NJA 2015, 1024) – in Sweden: four-fifths of the adult penalty for a 20-year-old perpetrator, two-thirds for a 19-year-old, half for 18 year old perpetrators, one-third for a 17-year-old, a quarter for a 16-year-old, and a fifth for a 15-year-old. These are to be understood as guidelines and not as binding rules. The older the young offender is, the harsher he or she can be punished. For more on this, see section 4.3.2.

428 See Tärnfalk (2007), 113.

429 I choose the term “severity of the offence” as a translation of “straffvärde” because I believe it captures its meaning as far as possible. The “straffvärde” appears in chapter 29 §1 BrB, reflecting its central position in Swedish Criminal Law. Although it is not defined, chapter 29 §1 second break BrB, as well as chapter 29 §2 and §3 BrB, stipulates some, but not all, of the factors that are relevant in assessing the severity of a crime. This shows that there are a variety of aspects to

“severity”, and it goes beyond the purely judicial–technical meaning of the term. It should not be equated with the levels of severity an offence may have according to a specific law prescribing different levels of sanction (like, for example, the different levels of theft).

430 See prop. 2005/06:165, 58.

431 See Träskman (2003a), 174.

432 Such an approach does not necessarily entail a “harsher” legal consequence for young offenders;

on the contrary, the welfare approach is often criticized since it can be misused to inflict a more

However, the changes that took effect on 1 January 2007 are, according to the preparatory works, designed to focus on and protect juveniles. As mentioned above, the aim of the 2007 juvenile justice reforms was to create a system of state responses to juvenile offending that is more clearly geared towards the reduction of recidivism as well as the reduction of the use of fines and prison sentences.

Nevertheless, even if the juvenile justice system as a whole aims at rehabilitation and at turning young offenders into law-abiding citizens,433 and even if it emphasizes, even after the reforms, that young offenders should first and foremost be subject to measures within social services,434 it has been argued that the major reforms of both 1999 and 2007 were designed to place a greater emphasis on punishment.435 The reforms give precedence to the principles of predictability, proportionality, and consequence436 while also holding that perpetrators’ pedagogical needs must be taken into account.437 The difficult balance to be struck is concisely expressed in prop.2005/06:165:

The current system entails that it is the seriousness of the offence which shall form the basis for the determination of the legal consequence. Criminal principles including predictability, proportionality and consistency are granted decisive importance. However, to combat recidivism, it is not considered to be sufficient to focus on the criminal offences as such. The entirety of the offender’s situation must be considered. This idea should be especially prominent when it comes to the treatment of young offenders. A starting point is that the right care and treatment is more likely to prevent young offenders from continuing to

invasive legal consequence than the offence itself would require in the name of, for example, education.

433 This is not least due to Art.40 UNCRC.

434 See prop.2005/06:165, 42f. This is also evident in the fact that the judicial authorities choose the specific juvenile legal consequence (for example, community service for juveniles, juvenile care or closed institutional treatment – see the discussions in sections– and 4.3.2.), which is then carried out by social services. See SOU 2012:35, 671; prop.2005/06:165, 42;

Nordlöf (2012), 308; and Borgeke and Månsson (2007), 187.

435 See Holmberg (2013), 313.

436 See prop.2015/16:151, 31, which emphasizes that the influence of proportionality has increased noticeably in relation to specific legal consequences for juveniles.

437 See Borgeke (2012), 387; see also Örnemark Hansen (2011), 271.

commit crimes than social responses that are solely based on the seriousness of the offence.438

This last sentence is an indication of the importance of respecting welfare considerations (focusing on “treatment” and “care”) even within the framework of a neoclassical approach. This is, as such, an expression of the welfare/justice clash. Nevertheless, the guiding principle of the Swedish juvenile criminal legal system is heavily shaped by traditional “rule of law” concerns like proportionality, predictability, and equality. Neoclassicism is the prevailing tradition in the (juvenile) criminal justice system in Sweden.439 Hollander and Tärnfalk write:

In Sweden as in other countries in Europe, throughout the last decade, children have been focused on as “offenders” first and “children”, or children in need, second. It seems as if both the ideology, policy and practice is less interested in supporting children than accusing them, although this view is fundamentally against the principle on children in welfare and child protection legislation, and in the UN Convention on the Rights of the Child.440

This trend seems to be continuing; it is reflected in, for example, investigation SOU 2012:34, which recommends a stricter approach towards young repeat offenders441 and proposes a new legal consequence for young law offenders with

438 Prop.2005/06:165, 43, my translation.

439 See Johan Munck, “Var star nyclassizismen idag?,” (Svensk Juristtidning (SvJT) 2015: 424–7), 427; also Petter Asp, ”Straffrätten – i går, i dag och i morgon,” in Svensk juristtidning 100 år, eds.

Stefan Strömberg et al., 138-61 (Uppsala: Iustus förlag, 2016), who calls this stream

”förtjänstparadigmet” and claims that young law offenders probably fit worst into this system (142).

440 Hollander and Tärnfalk (2007), 90.

441 SOU 2012:34 states: “Reaktionerna vid återfall i brott och vid misskötsamhet under verkställighet av de påföljder som väljs som alternativ till fängelse i anstalt kommer att stramas upp. Det leder till att fler kommer att tas in i anstalt på grund av nya brott eller att tilläggssanktionen inte fullgörs” (26). Even more recently, prop.2015/16:151 proposes as a general rule in cases of new criminal conduct committed before the legal consequences of juvenile care or community service for juveniles are fully enforced, that an additional legal consequence (not including the earlier legal consequences) should be imposed; see prop.2015/16:151, 66ff. One of the reasons for this regulation being the general rule is that it should indicate clearly to the young convict that the legal consequence is a consequence of and a response to the committed offence.

See prop.2015/16:151, 69.

a more restrictive character.442 I will now investigate the tensions created by this neoclassical guiding principle.