On July, 1, 2023, a new provision criminalizing the act of involving minors in criminal activity (involverande av en underårig i brottslighet) entered into force in Sweden. The amendment (2023:257) to the Swedish Criminal Code makes it illegal to involve a person younger than 18 years old (a minor) in a criminal act and punishes involving them with up to four years’ imprisonment. Specifically, the provision reads: “A person who hires, pays, instructs, or hands over property, for a crime or criminal activity, to a person who has not turned 18 years old and thereby, or in a similar manner, involves him or her in a crime or criminal activity, is to be convicted of [the crime of] involving a minor in criminal activity and sentenced to imprisonment of no more than four years.” (16 ch. 5a § Criminal Code (SFS 1962:700).) The provision also criminalizes involving a minor when the instigator was unaware of the minor’s age if the instigator was negligent in not finding out the minor’s age. In cases where the age difference between the victim and perpetrator is slight, the perpetrator must not be convicted. (16 ch. 5a §.)
The new provision goes further than the provision in chapter 4, section 1a of the criminal code, which criminalizes the exploitation of a person in furthering a crime, in that the conviction for that crime required that the victim be coerced or otherwise threatened into stealing or committing similar crimes or be put in a “vulnerable position” (utsatta belägenhet) in a way that constitutes an “emergency for the victim” (nödläge för den utsatte). The new legislation also covers cases where the minor willingly and without being in a vulnerable situation commits crimes at the direction of an adult. Moreover, the provision makes it a stand-alone crime to involve a young person in criminal activity, as compared to chapter 29, section 2(5) of the criminal code, which provides that involving another person in a crime may affect the sentencing for that specific crime — for example, involving an underage person in robbery could affect the sentencing of the adult for the crime of robbery.
According to the legislative history of the new provision, its purpose is to target gang criminality, in particular the recruitment of young people to gang activity.
During the legislative process, the Council on Legislation (Lagrådet), which comments on legislation, asked what the legislator meant by “criminal activity.” Specifically, the law council questioned if running general errands for criminal gangs, thereby enabling the gang’s criminal activity, was illegal, or if “criminal activity” referred only to activities that themselves were illegal. It appears this question will be settled by the courts, as no change to the wording of the provision was made following the council’s comment.
On August 31, 2023, the public prosecutor in Linköping was the first to prosecute a person for violating the new provision, bringing the case at the District Court in Linköping. The case involves a 22-year-old male who involved two minors in criminal activity by instructing them to store illegal narcotics in their home and to communicate with buyers of the narcotics. (Linköping District Court, Case No. B 3093-23.)
Elin Hofverberg, Law Library of Congress
September 12, 2023
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