The Framework of Criminal Law
Legislation on Bias-motivated Violence:
| Bias-motivated Violent Crimes as Specific Offenses | Bias as an Express General Aggravating Factor | Bias as an Aggravating Factor in Specific Common Crimes |
| X |
Bias Types Covered by Provisions on Aggravating Circumstances:
| Race/National Origin/Ethnicity | Religion | Sexual Orientation | Gender | Disability | Other |
| X | X | X |
Bias as an Express General Aggravating Factor
The Criminal Code of Sweden expressly enables the racist or other bias motives of the offender to be taken into account by the courts as an aggravating circumstance when sentencing. Section 2(7) of chapter 29 of the Criminal Code provides for the racist motives of offenders to be taken into account as an aggravating circumstance when sentencing and is applicable to all crimes.
The aggravating circumstance provisions apply when “a motive for the crime was to aggrieve a person, ethnic group or some other similar group of people by reason of race, color, national or ethnic origin, religious belief or other similar circumstance.” As of January 1, 2003, these provisions have been amended to include bias due to sexual orientation.[1]
However, according to the Office of the Ombudsman against Discrimination on grounds of sexual orientation, when judges use this provision in practice, they are under no obligation to state it in the sentence. This makes it problematic to track the use of this provision and to carry out any comparative studies throughout the Swedish national jurisdiction on the application of this provision.[2]
The Office of the Ombudsman against Discrimination on the grounds of sexual orientation has engaged in monitoring of cases in which enhanced penalties have been handed down on the basis of chapter 29, section 2(7) for crimes committed with a homophobic motive. The office posts examples on its web site of such cases when it comes across relevent judgements through its own research or when a court sends them a copy of the judgment. All courts are obliged to send the ombudsman all judgements in which a bias motive has been considered or applied as an aggravating circumstance. In practice however, courts rarely follow through on this obligation.[3]
[1] OSCE/ODIHR, “Sweden: Hate Crimes,” Legislationline, http://www.legislationline.org/?tid=218&jid=48&less=false.
[2] Information provided by The Office of the Ombudsman against Discrimination on grounds of sexual orientation to Human Rights First, December 18, 2007.
[3] Information provided by The Office of the Ombudsman against Discrimination on grounds of sexual orientation to Human Rights First, February 5, 2008.