The man was prosecuted for crimes in accordance with the Act on Criminal Responsibility for Genocide, Crimes Against Humanity and War Crimes which consisted of him, by virtue of posing, having seriously violated the personal dignity of the dead persons by humiliating or degrading treatment. He was found guilty of the offenses by both the district court and the court of appeal.
The questions in the Supreme Court have primarily concerned whether the term protected persons in the aforementioned Act also covers dead persons and whether the character of the acts of posing in such case is such that it meets the requirements of being considered to seriously violate the personal dignity. Furthermore, the case concerned whether the nature of war crimes is such that imprisonment will normally result.
The Act on Criminal Responsibility for Genocide, Crimes Against Humanity and War Crimes is intended to regulate in Swedish law the offences which are based on international criminal law and which are punishable in the Rome Statute of the International Criminal Court. The Statute is based on the basic premise that both the International Criminal Court and national courts shall be able to prosecute the offences set forth in the Statute, in respect of which, in principle, prosecution on a national level has precedence. Accordingly, the interpretation and application of the Act must therefore be carried out with substantial regard for international law rules and the manner in which they are interpreted and applied by the International Criminal Court and international tribunals such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.
The definition of protected persons in the Swedish Act to which the penal provision regarding humiliating or degrading treatment pertains refers to the manner in which the term is used for customary international law purposes in international humanitarian law. In the judgment, the Supreme Court concludes that dead persons may be regarded as protected persons in international humanitarian law and, accordingly, this is also the purport of the Swedish regulation.
The Supreme Court further finds that the poses in which the man engaged have been such that the dead persons were thereby subjected to humiliating or degrading treatment which was considered to seriously violate personal dignity. Accordingly, the man was sentenced for four counts of war crimes against a person. Taking into account the penal value of the criminal acts and the fact that war crimes against a person are per se deemed to constitute crimes of the character of which normally calls for the imposition of a term of imprisonment, the sentence imposed is a term of imprisonment of one year.
Case no: B 5595-19
Stefan Reimer, Justice of the Supreme Court
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Elin Dalenius, Judge referee
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