Näringsidkarens processuella rättigheter - En studie om den processuella rättssäkerheten vid en talan om företagsbot i ljuset av artikel 6 i Europeiska konventionen

The Swedish criminal justice system is based on the fact that only physical persons can commit crimes and be punished for them. For traders, both physical and legal persons, special sanctions such as a corporate fine have been introduced. However, no special regulations of neither the corporate fine procedure nor the procedural rights for traders, when pursuing criminal charges of a corporate fine, have been introduced. At the same time, art. 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) poses high demands on procedural legal security in cases of criminal charges. The Swedish Bar Association criticizes the corporate fine procedure for reasons of legal security and requests a clarification of which procedural rights traders have when charged with a corporate fine, which this thesis aims to contribute. Furthermore, this thesis seeks to illustrate the possible deficiencies of the corporate fine procedure based on the trader’s legal security. The chapters concerning the regulation of the corporate fine procedure and the procedural rights for traders in the action of a corporate fine are mainly based on the text of law, legislative history, official publications and experiences of practitioners. The study concludes that the regulation of the corporate fine procedure is mainly based on analogies of the criminal law provisions of the Swedish Code of Judicial Procedure (1942:740) (RB). This despite the fact that the regulation may differ slightly depending on whether the action for a corporate fine is directed against a trader who is or who is not prosecuted for the current crime. Further, the thesis shows that the corporate fine is classified as a charge of crime, even though it is counted as a special legal effect in swedish law. Due to this art. 6 ECHR is relevant for the interpretation of which procedural rights traders have in cases of corporate fines. In addition, the corporate fine procedure must meet the requirements set out in art. 6 ECHR to be regarded as legally secure. Through the analysis the thesis concludes that traders, on basis of the analogies of the criminal law provisions from RB and by the application of art. 6 ECHR, among other things, have the right to be informed promptly of a request for a corporate fine, to prepare their defense by both gain insight into all material and be assisted by a private or public defender and to invoke evidence and state their case before the court. The experience of practitioners, however, indicates that these procedural rights are not always exploited in practice. In addition, the regulation of the corporate fine procedure is questioned for reasons of legal security, since there are cases where legal situations may be considered unclear, despite the analogies of RB and the guidance in the legislative history and official publications. On the other hand, it concludes that the corporate fine procedure, as a whole, cannot be considered legally insecure, even though the trader’s legal security in a case of corporate fine must be questioned in several respects.