När sakkunnigbeviset tystnar – Domstolens begränsade initiativrätt i brottmål En bevisrättslig analys av RB 35:6

Abstract

This dissertation critically examines the implications of the 2022 amendment of Chapter 35, paragraph 6 of the Swedish Code of Judicial Procedure (RB 35:6), which, among other changes, abolished the judiciary’s authority to obtain expert evidence ex officio in criminal cases brought by public prosecution. The reform was motivated by an aim to reinforce the adversarial nature of Swedish criminal procedure and to clarify the distinction between the roles of the judiciary and the litigating parties. However, by prohibiting courts from ex officio appointing expert witnesses, the reform raises fundamental concerns regarding the principle of free evaluation of evidence and the judiciary’s capacity to ensure materially accurate verdicts. The restriction on judicially appointed experts is of particular concern, as it may compromise court’s ability to assess complex factual matters that require specialized knowledge, thereby undermining the reliability of judicial fact-finding. This limitation is examined in relation to the European Convention on Human Rights (ECHR), particularly Article 6 and the principles of equality of arms and the adversarial process. By employing a legal dogmatic methodology and drawing on evidentiary theory as an analytical lens, this study critically assesses the normative rationale behind the reform and explores its consequences. It questions whether the formalism introduced by RB 35:6 has strengthened legal certainty at the expense of substantive justice, and whether the prohibition on judicial evidence-gathering constitutes an implicit curtailment of free judicial evaluation of evidence. The analysis further investigates whether a differentiated approach to various forms of evidence, especially expert evidence obtained ex officio by the court, could have preserved the reform’s procedural objectives without unduly restricting the judiciary’s fact-finding role. Ultimately, the dissertation explores potential legislative refinements to RB 35:6 that would allow courts to maintain their impartiality while retaining the necessary tools to adjudicate complex cases accurately.