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Förklaringsbördan i brottmål och dess förenlighet med oskyldighetspresumtionen

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Anna Nordlander’s 2017 article in Svensk Juristtidning examines whether the Swedish förklaringsbörda — the burden that falls on a defendant to explain evidence the prosecutor has adduced — can be reconciled with the presumption of innocence. The preserved article (raw response) was saved 2026-07-28.

The starting point in Swedish law

Nordlander’s historical premise is the one that matters most for reading Swedish evidence law against the ECHR: before Sweden acceded to the Convention, Swedish law contained no express right for a defendant to stay passive. It assumed the opposite. RB 35:4 provides that where a party fails to answer a question put to them, the court shall assess what evidentiary effect that failure should have, and the article treats a literal reading of that provision as no longer available after Strasbourg’s case law.

What the burden is

The article’s own definition is that a defendant’s failure to explain, or failure to give a reasonable explanation, for evidence the prosecutor has adduced counts against them in the evaluation of evidence, on the condition that the defendant could reasonably be expected to supply the explanation. Nordlander concludes that a burden so defined is compatible with the presumption of innocence.

The safeguards

The compatibility is conditional rather than general, and the conditions come from the European Court of Human Rights in John Murray and Krumpholz: the prosecution’s case must already be strong enough to call for an answer — a prima facie case — and silence may never be the sole or main basis of a conviction. Nordlander reads NJA 2015 s. 702 (“Balkongmålet”) as the clearest Swedish authority that a defendant’s silence and implausible explanations may be weighed as part of the composite assessment of whether the prosecutor’s evidence suffices, with NJA 2013 s. 931 (“Resningsmålet”) more ambiguous on the sequencing.

Scope

The article is about silence and implausible explanations, which is what the Strasbourg safeguards constrain. It does not address a defendant’s affirmative conduct, and the distinction matters: the restrictions it describes attach to inferences drawn from passivity, not to the ordinary free evaluation of what a defendant did. How does Swedish law treat duress wipes turns on that boundary.

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