RB 54

137 reform that would give a more important position to circumstantial evidence so that Sweden could, in this respect, follow the steps of “the civilization in other European countries.” His approach was a more practical one and indined towards problems that he perceived the most acute. Such a problemwas confessional imprisonment, which Naumann classified as threefold: for him it was a security measure, a kind of torture taking place after a completed criminal investigation, and, interestingly, an extraordinary punishment. In the juristic literature, it was Kreiiger’s “On Indirect Evidence” (“OmIndirect bevisning”) that paved the way for the acceptance of circumstantial evicfence as full proof. For Kreuger, when it came to serious crimes, the judge was responsible for inquiring into the case thoroughly enough to acquire “moral certainty.” Concerning less serious crimes and civil cases, “the common good [did] not require that the case be inspected to the fullest.Contrary to what Mittermaier and others had claimed, even one indiciumcould suffice to create moral certainty, for “moral certainty cannot be defined more in detail in abstracto. It depends on such specific circumstances of an individual case that suffice to convince a common man in normal life.”*^ Despite his inclination to free evaluation of evidence, Kreuger accepted the statutory requirement that one witness statement not suffice for full proof; at least the statement had to be supported by circumstancial evidence. Witness evidence could never, however, be positively binding, for “full proof is nothing else than the judge’s conviction, and that does not depend only on the number of proof, but instead on their force, credibility and concurrence. Kreuger states that in serious crimes “legal practice has considerably modified the requirement that confession be absolutely necessary.” He turns down the laws of some countries that allow only lesser punishment,/>ocw<^e extraordinariae, to be based on pure indicia. For him, evidence was either sufficient or not sufficient; in the former case, the proof warranted a normal punishment, and as for the latter, no punishment was to be allowed.'*^ Kreuger thus lays down a theory of free evaluation of proof and proposes the abolition of legal rules of proof.He rejects the jury, however. The jury ”17 N.\umann 1864 p. 622, 635; later, the author returned to the problem; see Naumann 1865 and 1884. When the Supreme Court in 1871 convicted a murderer on indicia, Naumann voted against the majority; in his opinion, ahsolntio ah instantia ought to have been applied to the case. Inger 1994 pp. 268-269. Kreuger 1861 p. 41. Ibid. pp. 80-82. Kreuger 1871 pp. 67-68. "... lull bevisning icke är annat än domarens öfvertygelse och att denna beror ej blott på bevisningmedlens antal utan på dess styrka, tillförlitlighet och öfverensstämmelse.” Kreuger 1861 pp. 128-130; see also Kreuger 1871 pp. 243-248. The conclusion seems justified, even though Kreuger himself, in another passage, states that all rules of proof ought not to be abandoned and that the amount of rules should depend on whether the tact decisions are entrusted to juries or professional judges. Kreuger 1871 pp. 48-50.

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