89 and Ylikangas have drawn the conclusion fromOlaus Petri’s Rules that judicial torture was strongly making its way to Sweden at the turn of the sixteenth century.Munktcll’s article “Tortyren i svensk rättshistoria” (“Torture in Swedish Legal History”) and Göran Inger’s work “Das Geständnis in der schwedischen Prozessrcchtsgeschichte” (“Confession in the History of Swedish Procedural Law”) contain ample evidence from judicial practice to prove that torture began to be utilized in the sixteenth century, together with the reception of the legal theory of proof.'^^ Furthermore, Ylikangas,together with Calonius,^^^ has likened confessional imprisonment to the physical modes of torture. In a case of 1593, the town court of Stockholm, referring to torture, remarked that “Sweden’s law does not allow” it (“... Swerigis lagh icke tillåter ...At the beginning of the 1600s, two unsuccessful attempts to legalize torture were made: both a proposal given by King Charles IXand a Proposal to the High Court Ordinance (“Förslag till Hovrättsordning”) included paragraphs to regulate judicial torture; these proposals, however, were never passed as laws.’*^^ Moreover, torture was expressly forbidden on various occasions. The War Articles of 1683 and the Sea Articles of 1686 state that “nobody shall be tormented to confession, for [torture] is not in use in the Royal Majesty’s Kingdomand is in itself dangerous and uncertain” (“ingen bör pinas och plågas til någon bekännelse, efter somthen samma uti Kongl. Mayrts Rike obrukelig samt i sig sielf fahrlig och owiss är”).*^^ The prohibition was reiterated in the Royal Letter to the High Court of Tartu of December 22, 1686, 168 such confessions are usually false, and it often occurs, that many a person because of torture that he suffers, confesses to something that has never been true or happened ... [Torture] mav, thus, not be practiced, except ft>r treasons and homicides; and therefore many fiefs act wrongfully when they...force those they have arrested to confess, and, on the basis of such a confession, be it true or false, take themto be punished ...” Schmidt 1966 pp. 275-276; Ylikangas 1988 pp. 58-59. Munktell 1939; Ingcr 1976 (a) pp. 186—211; Ylikangas 1984 pp. 38-39; Jägerskiöld 1964 p. 296 with case material from the 1600s and the early 1700s. See also Gemmel 1911, p. 30, according to whomtorture was widely used. Ylikangas 1988 p. 59. Calonius speaks of a “tortura spiritualis,” Calonius 1829-1836 p. 299. See also Nousiainen 1993 pp. 339-340. 165 Ingcr 1976 (a) pp. 202-203. Of the two, the Proposal to the High Court Ordinance is more specific and includes a dctailed Indizicnlchrc, rather clearly influenced by the lus commune. This is explained by the learnedness of its drafter. Nils Chcsnocopherus, in Germany. The Proposal of Charles IX,is more rudimentarv and has been supposed to portray better the practice of the town court of Stockholm. Ihid. pp. 206-208; Munktell 1939 pp. 115-117. Schmedeman 1706 pp. 837, 963. Ihid. pp. 1087-1088. 160 164 166
RkJQdWJsaXNoZXIy MjYyNDk=