Reference no: EM13763439

Uppsala (the fourth largest city of Sweden) District Court

The prosecutor appealed against A.H. for shoplifting and violence against the official under the following deed allegations.
A.H. have on 28 February 2009 from the Stadium called "Forumgallerian" in Uppsala illegally taken a pair of shoes for a value of 499 SEK, which has resulted injurty to the plaintiff.

A.H. has subsequently at "Forum Square" in Uppsala, when the guards JS and K.W. was going to arrest him, violently assaulted J.S in his official authority by hitting him in the face. Alternatively, A. H. have caused J.S. pain and tenderness by hitting him in the face.
A. H. admitted shoplifting but denied responsibility for the violence against the official.

At the district court the followings were questioned; the victim J.S., the defendant A.H. and A.E. the witness.

The District Court (The Judge "Kurt Oak" and lay judges "January Westerville", "HåkanJonsson" and "Carina Jansson") stated in judgment on 13 March 2009, among others, following.

Grounds

By the interrogated peoples (J.S, A.H. and A.E.) stories are the following investigated.

A. H. entered the stadium in a place called "Forumgallerian". There, he stole most of the prosecutors indicated shoes by putting them on and leave the store. The keeper A.E. observed the theft and followed A.H. on distance. A.H. first went into another shop, called "Kicks", in the mall. A.H. then left the mall, crossed the square and went into a restaurant. According to A. E., A. H. was located inside the restaurant over a period of 2-3 minutes. According to A.H. he found himself there for half an hour. A.H. then went out onto the pedestrian street. In connection therewith J.S. heard on the communication radio that a person had taken a pair of shoes and that it needed help. For this reason J.S. joined and another guardian, K.W., to A.E. By this time, A. H. moved a hundred meters from the restaurant along the pedestrian street. K.W., who was in civilian clothes, and JS, who was in uniform, went to A.H.

Regarding what happened, the interrogated people told the following.

According to JS: At the current time, he worked as a guard in a shop called "Åhléns-house". He cannot answer what extent his surveillance missions had. He and K.W. went to A.H., but A.H. did not accompany them. He and K.W. grabbed A.H. and began to walk with A.H. towards a place called "Forum Square". After a while, A.H. tore away from K.W's grip while he still hold AH by the shaft. A.H. hit him on the chin with a straight punch. He cannot say that the intention was to hit him in the face. It was not a hard blow, but he flinched a little and his head "went back". He felt the punch three to four hours afterward, but he didn't get any stich that could be easily seen, from the punch. He then threw down A.H. on the ground, and it came help to the scene and AH got coated with handcuffs.
According to A.H.: It was J.S. and a girl who came up to him and they told him to go with them. He knew that J. S. was the guardian. They grabbed his arms and he became angry and tore loose. He doesn't remember that he handed out some punch. He may have shoved J.S. face, in other words; everything went so fast. If he wanted to hit J. S. would have got hurt.

According to A.E.: A.H. swung down on J.S. He didn't see whether the punch hit, but instead he only saw that JS's head went back.
After finding the charges of shoplifting attested the district court did the following assessment regarding the prosecution of violence against the official.

By the interrogated stories may be considered common ground that AH's hand hit JS's face. Taking account of all of this obviously was not especially painful, it cannot be excluded that AH's intention was to push away J.S and that A.H's hand in connection also met with JS's chin.

J.S. worked at the current time as guardian. Neither he nor the prosecutor was able to indicate what his security assignments included. With regard to JS's statement regarding that he worked at "Åhléns" today, the District Court base from that he had a monitoring mission in the building where the shop "Åhléns" is located.

Security guard enjoys under § 7 law (1974: 191) for guarding the protection provided for in Chapter 17. 5 § Penal Code, that is, the same protection as it has who is concerned connected with the exercise of official authority. This protection applies only when the guard performs watching service. This means that the guard does not have this protection when he performs a task that does not constitute watching service. As stated previously J.S. had a watching mission in the building where the shop "Åhléns" was located. With this follows that J.S, on the action against A.H, did not enjoy this protection because the intervention was a relatively far distance from the building where the the shop "Åhléns" is located and on the occasion of a theft that occurred in another building.

According to Chapter 24. 7 § Code of Judicial Procedure, shall and is allowed each one to arrest a person who has committed a crime at which it can result prison, in this case, shoplifting, and that is found in the act or fleeing feet. The investigation in the case provide that A. H. was not in fleeing feet and that he was arrested by J.S after A. H. had visit the shop "Kicks" and the restaurant and then, if assuming AE's data, went at least 6-10 minutes since AH stole the shoes. A. H. thus has not been found in the act of J.S.

It follows that JS's intervention has been without a legal basis. A. H. has therefore been right to use some force when he was detained by J.S. The violence that he practiced, a sharp nudge, can in the circumstances not be considered to be manifestly indefensible.
On the basis of the foregoing, the prosecution of violence against the civil servant shall be dismissed.

ADJUDGMENT

The district court accuse A. H. for theft, shoplifting and crimes against knife law to jail for a month.

Svea Court of Appeal

The prosecutor appealed the district court's judgment, requesting that the A.H would be sentenced also for assault on the February 28, 2009 and that the prison sentence as a result of this would be tightened.

A. H. disputed amendment.

The Court of Appeal (Court of Appeal president Frederick Wersäll, appeals judge Ulrika Beer Grehn, Rapporteur, co-opted member Beatrice Blylod and Juror Erik Bystrom) stated in its judgment May 8, 2009, inter alia, following.

GROUNDS

In accordance with the District Court in these parts did not appeal the judgment, it is ultimately decided that the A.H has been guilty of theft, pilferage and crimes against knife Act.

Regarding the prosecution for assault, the prosecution argues that A.H, since he at Stadium Uppsala took a pair of shoes, caused J.S pain and tenderness by hitting him in the face.

A. H. have also in the Court of Appeal acknowledged that he may have exerted some force against J.S but contends that in this case occurred in self-defense because J.S had no right to arrest him in accordance with the rules on so-called citizen's arrest in Chapter 24. 7 § Code of Judicial Procedure. In the alternative, A. H. objected that his actions should not be assessed otherwise than as assault, minor offenses.

J.S's, A.H's and Witness AE's information has been recognized by playback of the District Court's audio and video recordings of interrogations there.

Appeals Court makes the following assessment.

The investigation of Appeal is the same as the district court. When it comes to what is established on what preceded J.S's action against A.H, the Court of Appeal does the same assessment as the district court. It can be noted that different data were provided about how much time has elapsed between that A.H took his shoes at the Stadium until he was arrested by J.S. The witness A. E. has from a credible and detailed way, told that during this time he followed A.H and what he then did. Based on A.E's data, the Court of Appeal pulls therefore the conclusion that it had gone about ten minutes from A.H's seizure of the shoes at the Stadium until that the intervention took place.

J.S. and A. H. has furthermore given different tasks whether it was a slap or a shove as J.S got in the face of A. H. in connection with the arrest. J.S. has let out his story in a factual and credible way. His claim that it was a straight fist to hit him on the chin wins according to Court of Appeal's view, some support of what A.E stated that he saw A. H. intentionally moderation blow to J. S. and he saw that his head went back. By their tasks the Court of Appeal finds it proven that A.H intentionally in the way the prosecutor allegedly claim to being caused J.S pain and tenderness by hitting him in the face.

A. H. argues that in the current situation he had the right to use certain violence in self-defense. His self-defense presupposes in meantime that JS not had the legal right to arrest him because of shoe-theft at the Stadium.
According to Chapter 24. § 7 second paragraph of the Code, if the person who committed the crime, in which imprisonment may follow, is found in the act or fleeing feet, he may be arrested by anyone. The question then becomes whether J. S. had the right to make such a so-called citizen's arrest, and especially if A.H found on "the act or fleeing feet."

In the goal it is common ground that A.H, after he took the shoes, left the store transient. A.H. has himself stated that he initially at arrest believed that he was arrested because his friend had stolen a perfume bottle. It can therefore be assumed that A. H. not understood that he had been observed in the grip of shoes and that it therefore was no apparent reason for him to run from the crime scene. Further, A. E. explained that the reason A. H. didn't got arrested already during at the time the act happens, was because he wanted to wait for security enhancement, which J.S has confirmed as a normal routine at the store theft.

The provision of citizen's arrest must be interpreted, based on its purpose. Deliberately delaying intervention should, according to the Court of Appeal's opinion, not exclude the right of citizen's arrest, provided that there are acceptable reasons for not immediately confront a potential perpetrator. If there are such reasons, however, the arrest must take place in such a connection to the act that it can still be considered to have occurred at "the act or fleeing feet." An assessment must here, as the Court of Appeal sees it, be based on the circumstances of the individual case. Especially should then take into account into what has occurred between the crime and the intervention and the extent to which there has been room for confusion as that the wrong person is arrested (see NJA 1978 p. 67).
The Court of Appeal notes that A. E. followed A. H. during the ten minutes that elapsed from the time of the theft until reinforcement arrived and constantly had him in sight. Through this continuous pursuit excluded the risk that the wrong person was arrested. As soon as reinforcement arrived there was an arrest. The time that elapsed from the offense to the arrest cannot be regarded as an obstacle to J.S's right to intervene. In such conditions, A.H, contrary to what the district court found, is considered to have been found on "the act or fleeing feet." A. H. then have not had the right to use certain violence in self-defense. He is therefore guilty of assault in the way the prosecutor alleged. In other words; the assault cannot be considered as a minor offense.

JUDGMENT

The Court of Appeal amends the District Court only in that the Court of Appeal judge A.H also under Chapter 3. 5 § Penal Code, for assault and determines the sentence to prison for two months.
Juror; Maja Bukovac-Re was dissented and stated the following.

In contrast with majority, I find that A. H. has claimed to be guilty by the prosecutor alleged assault offense, which, however, in my opinion, is to assess who to call abuse. In those circumstances there is no reason to tighten the prison sentence.
The Court of Appeals judgment message; the 8 May 2009.

Questions (answer briefly the following questions, A-J)

A) Which parties are included in the target?

B) What is the goal about (thing)?

C) How was the judgment in first instance?

D) What were the grounds?

E) Were there any dissenting (rebellious) opinion of the District Court?

F) How was the judgment in the following instance?

G) What new evidence had emerged in the following instance?

H) What were the grounds of the following instance?

I) Was there any dissenting opinion in the following instance?

J) What laws and section of the law is concerned?

2. Discuss the legal case. What do you think about the case law and the Judgments (law)? What solutions do you see on the target? Discuss the case also from "Philosophy of law" (= what is the difference between the right, under the law, and morality?) and ethical point of view. You can take help of the internet by searching about discussions of the philosophy of law, ethicsandmorality.