Kan två bli en? En rättsvetenskaplig studie av förbudet mot dubbelbestraffning med fokus på körkortsingripanden.

Abstract

The starting point of this essay is the assertion that the entry and integration of the “European law” into the Swedish legal system has led to a collision between rules, traditions and ideologies. The relationship between the Swedish procedure for driver’s license revocations and the European legal prohibition against double punishment is an example of when the Swedish law meets European law. The aim of the essay is to investigate and analyse if the Swedish system is compatible with the prohibition against double punishment in the European convention of Human Rights (ECHR) and the EU Charter. A further aim is to explain and critically examine the Swedish scheme for driver’s license revocations by investigating how the meeting between legal traditions and ideologies is reflected in this order. It is made possible by the use of Kaarlo Tuori’s model of a legal system based on three levels, within an overall jurisprudential method. A conclusion in the essay is that the Swedish procedure for driver’s license revocations contains an examination of the “same facts” in both the criminal and administrative procedures and that the revocations have a “criminal nature”. In the courts’ decisions have, however, the view of the various procedures been crucial. Based on the legal tradition may dividing lines between the approaches be traced to the meeting between normative, conceptual and methodological elements. The traditional Swedish approach to administrative law, as part of the implementation of policies, has earlier defined the license withdrawal. The view of the procedure has traditionally been that the differences between the procedures legitimized them. This view of the license withdrawal has changed and the view of the procedure is now challenged by the ECHR autonomous interpretation of the definition of “criminal procedures”. Differences between the courts methodological elements have led to a difficulty for the Swedish courts to reject the internal order. The normative, conceptual and methodological element that affected license revocations to not constitute double punishment is rooted in differences in the “depths structure”. Rights conveyed to the citizens, which gives judges the right to reject political decisions, is in conflict with the welfare state's basic foundation. The ideals also differ in terms of the Court's role. The administrative courts are still having a clear link to the administration and are in this way separated from the ordinary courts. The meeting between different problem solving has contributed to the justifications of the current system have been different. Keynotes: ECHR, driver’s license revocation, double punishment, legal traditions, the welfare state, the constitutional state.