In detail...

Separate Juridical Aspects of the European Convention on Human Rights and Their Influence on the Legislation of Sweden

1. Sweden took an active part in the drafting of the European Convention on Human Rights and - together with Denmark, Iceland and Norway - was among the first Member States to ratify the Convention. In a Bill to the Riksdag, proposing ratification, the Swedish Government declared that Sweden should "naturally" contribute to strengthening the legal protection of human rights in Europe.† The Government did not anticipate any problems, from the Swedish point of view, in complying with the provisions of the Convention. There seemed to be no element in the description of human rights which could constitute an obstacle to a Swedish ratification. On one minor point only, concerning freedom of religion, Swedish legislation was not yet quite in conformity with the Convention, but a proposal for new legislation had already been presented to the Riksdag. Subsequently, the case-law of the European Court of Human Rights has called for a re-evaluation of this bright picture.

When ratifying the Convention, Sweden made a declaration under Article 25 that it recognized the competence of the Commission to receive petitions from individ≠uals, non-governmental organizations and groups of individuals. On the other hand Sweden was not yet prepared to recognize the jurisdiction of the European Court of Human Rights. In the Bill to the Riksdag the Government expressed the opinion that Sweden should not make such a declaration until experience had shown that there was a practical need for a Court beside the Commission. This no doubt reflects the attitude of the influential Swedish Minister for Foreign Affairs, Professor Östen Undén. He was sceptical to the idea of courts being vested with political powers and had argued strongly against the principle of judicial review in Sweden. In 1963 he published an article in the leading Swedish law journal Svensk Jurist-tidning where he expressed a certain criticism vis-à-vis the Convention. In his view the codification of human rights had gone too far into detail. He expected that the European Court would become occupied mainly with subtle problems of interpret≠ation, and he doubted that such a bureaucratic system as the Convention had established was indeed justified.

While Denmark had recognized the jurisdiction of the Court already when ratify≠ing the Convention and Iceland had done the same a few years later, Norway waited until 1964. Finally, in 1966 - when Mr Undén had resigned from office - Sweden also made a declaration under Article 46 of the Convention that it recognised the juris≠diction of the Court. The declaration was valid for five years and has subsequently been renewed, each time for another five years, until the Government in 1996, having obtained the acceptance of the Riksdag, made a declaration under Article 46 with no time-limit. By then, another important reform had been effected: as from 1 January 1995 the European Convention on Human Rights had been given the force of law in Sweden. After this date, unlike what was previously the case, the Convention was directly applicable by Swedish courts.

The declaration under Article 46 did not immediately lead to a flow of Swedish cases to the Court. The first two cases were decided upon in 1976. They concerned the rights of trade unions and their members - it might be noted that one of the indi≠viduals who had brought the matter before the Commission, Folke Schmidt, was a university professor and Sweden's leading expert on labour law. In both cases the Court found that there had been no violation of the freedom of association stipula≠ted in Article 11 of the Convention.

It was not until after the famous Sporrong-Lönnrotb case in 1982 that the Euro≠pean Court and the European Convention began to be more widely known in Sweden. In this case for the first time a Scandinavian State was found guilty of a violation of the Convention. It was also the first judgment where the Court found -by a majority of 10 votes to 9 - that there had been a breach of Article 1 of Proto≠col No 1, dealing with the right to property.

One reason why the Sporrong-Lönnrotb judgment attracted much attention was of course that it dealt with a matter which had considerable political implications. The opponents of the ruling Social Democratic party could take it as evidence that the policy pursued by the Social Democrats did not live up to decent standards in the protection of property rights. The case concerned, however, a rather particular situation, and the domestic legislation had already been amended when the Court rendered its judgment. Later attempts to challenge Swedish law as violating Article 1 of Protocol No 1 have been less successful. This is due to the restrictive practice upheld by the Court and the Commission, who have allowed for a considerable "margin of appreciation" for the individual States when it comes to rights of this type.

Most of the Swedish cases have concerned questions of judicial procedure in a wide sense - indeed such matters take up a very important part of the agenda of the European Court. To an outside observer it might appear that the Court in this particular field allows for a more narrow margin of appreciation than elsewere.

Such an attitude would not be surprising. Questions of judicial procedure are not politically controversial to the same extent as many other matters dealt with in the Conven≠tion, and it is natural that the judges tend to feel more at home in this field, where they can rely with particular confidence on their own expertise. I shall here make a few comments on some procedural matters which have been dealt with in Swedish cases before the European Court.

2. According to Article 6 ß 1 of the Convention everyone is entitled to a fair and public hearing by a tribunal in the determination of his civil rights and obligations. In a number of Swedish cases, starting with Sporrong-Lönnrotb, a crucial issue has been the meaning of the concept "civil rights and obligations". The European Court has given this concept an autonomous interpretation which goes further than Sweden - and presumably also other Member States - expected at the time of ratifica≠tion. Sweden apparently understood this concept as referring to disputes of a civil law character, not involving public law. It therefore has come as a surprise to the Swedish authorities that - to mention a few examples - revocations of licences to serve alcoholic beverages †or to operate a public transport service, as well as refusals to grant building permits or permits to acquire agricultural property have been considered to affect the civil rights of the applicants in the sense of Article 6 ß 1. In cases concerning such matters Sweden has been found to be in violation of this Article for not allowing for judicial review of decisions by administrative authorities.

Traditionally in Sweden administrative decisions have not been open to review by the courts. Appeals against such decisions have been tried by superior administrative authorities, ultimately the Ring in Council, i.e. the Government. Gradually, how≠ever, a system of administrative courts has developed. In 1909 a newly created Su≠preme Administrative Court took over from the Government the position of last instance in certain groups of cases involving judicial aspects. In the course of the last decades administrative courts of first instance and administrative courts of appeal have been established forming a system parallel to the ordinary courts. At present large categories of administrative decisions are subject to judicial review by adminis≠trative courts after appeal. Not all such decisions can, however, be brought before the courts in an appeal procedure. Many administrative matters involve questions of public policy which are not considered to be suitable for judicial examination. In certain groups of cases appeals are therefore still brought to superior administrative authorities and, in the last instance, the Government. This applies, for example, to decisions concerning building plans and restrictions on the use of land in the interest of the environment, as well as to decisions on licences to operate various types of industrial and other economic activities.

It has of old been possible for individuals concerned by an administrative decision to challenge the lawfulness of the decision by filing a request for re-opening of the proceedings with the Supreme Administrative Court. This is, however, a remedy of extraordinary character, and the Court does not, in considering the request, make a full review of the merits of the case. The European Court has not accepted this remedy as satisfying the requirements of Article 6 ß l.

To meet the criticism emanating from the European Court a new Act on Judicial Review of Certain Administrative Decisions was adopted in 1988. This Act was introduced as a temporary arrangement with a validity of three years. It has subse≠quently been prolonged for new three-year periods and, finally, by a decision of the Riksdag in 1996, made permanent. The Act is applicable to decisions by the Govern≠ment and other public authorities, involving exercise of public authority vis-à-vis a private individual or corporation. It has been questioned whether this definition covers the whole field of civil rights and obligations in the meaning of the Conven≠tion. The Swedish Government, being aware of this problem, has declared its inten≠tion closely to follow developments and to propose such changes in the legislation as may be required. Under the Act, in the absence of any other judicial remedy the party concerned may apply to court for a review of the lawfulness of the adminis≠trative decision. If the court finds that the decision is unlawful it may quash it and, if necessary, refer the case back to the relevant authority.

Originally, all applications were brought to the Supreme Administrative Court but, after an amendment which came into force on 1 April 1995, this applies only to Government decisions, whereas applications concerning decisions by other administrative authorities shall be brought to the administrative courts of appeal, with the Supreme Administrative Court as a second instance.

The new Act has been applied in a considerable number of cases. Most applica≠tions have been dismissed, but quite a few have resulted in annulment of the admin≠istrative decision. This has also been the case with Government decisions. The pro≠visions of the new Act allow for a much more extensive review of the decision than a request to re-open the proceedings. The European Court has not yet been called upon to examine whether this remedy meets the requirements of the Convention, but it has been found acceptable in cases examined by the Commission.

The administrative authorities which have tried appeals against administrative decisions in Sweden have without doubt represented a high standard of integrity and independence. Notwithstanding this fact, the development towards a more extensive access to review by the courts must be considered as having strengthened the legal protection of the individual. The international conventions on human rights and, in particular, the jurisprudence of the European Court have evidently stimulated this development and thus exerted a favourable influence on the Swedish legislation in this area. The 1988 Act is clearly a result of the Court's rulings.

3. An aspect of the provisions on fair trial in Article 6 ß 1 of the Convention which is illustrated by some Swedish cases concerns the right to an oral hearing in court. Under domestic Swedish law, in civil and criminal cases, a party is always entitled to an oral hearing in the court of first instance. In the courts of appeal, how≠ever, the right to such a hearing is not unconditional. In civil cases and minor crimi≠nal cases the court can refuse to grant a request for an oral hearing when it finds that such hearing is obviously unnecessary. In administrative cases written procedure is the main rule, in courts of first instance as well, but a party who wishes to be heard orally is entitled to a hearing, unless the court finds it unnecessary. It should be borne in mind in this connection that, if a case is adjudicated without an oral hear≠ing, this does not mean that the general public is deprived of knowledge of the matter. All documents are available to the public with, on the whole, only such exceptions as would also require a hearing being held behind closed doors.

The authority to refuse oral hearings in court under Swedish domestic law goes beyond what is permitted by the Convention on Human Rights as interpreted by the European Court. Swedish law has, however, raised no obstacle to a practice in accordance with the Convention - obviously, a hearing which is required under the Convention could never be deemed unnecessary.

In several judgments the Supreme Court has made declarations to the effect that Swedish courts shall take the provisions of the Convention into account when applying the domestic rules on procedure, even if this should lead to a practice which is not in keeping with earlier precedents or with the original intentions of the legislator. Thus, through case-law, a new practice more in conformity with the Convention has been introduced, with≠out any change in domestic legislation, already a long time before the Convention became an element of domestic law in Sweden.

A rule assuring a party the right to a public hearing before the court which tries his case is likely to strengthen the position of that party. A system involving an unconditional right to a hearing is, however, burdensome and costly both for the courts and for the opposite party. In cases where there are individual parties on both sides one of them could exercise his right in an abusive manner, for instance by demanding an oral hearing which would entail considerable costs for the other party or a long delay in the proceedings, without being liable to strengthen his own posi≠tion in the matter. It seems for reasons of this kind not beyond all doubt that the parties should have an unconditional right to a public hearing in all types of law≠suits. The Convention does not, however, seem to offer any remedy for an abusive exercise of this right, provided the dispute is "genuine and of a serious character".

A matter which has given rise to much discussion and to divergent opinions in the European Court concerns the right to an oral hearing in appeal proceedings. The Convention does not guarantee parties a right to have a judgment reviewed after appeal to a higher tribunal. Article 2 of Protocol No 7 does indeed prescribe such a right in criminal cases but allows for exceptions in regard to offences of a minor character. In such cases, and in all civil and administrative cases, the States are free to refuse review of lower court judgments altogether or to restrict review to certain aspects or make it subject to a decision granting leave-to-appeal. If, however, as is the case under Swedish law, a full review of appealed cases both as to facts and as to law is allowed, the main principle established by the European Court is that the parties are entitled to a public hearing also in the second instance. This is the conclu≠sion that can be drawn from the Ekbatani case, although later cases indicate that there are important exceptions to this principle. The Swedish Supreme Court has as previously mentioned, adapted its case-law to the principles thus established by the European Court.

By a reform of the Swedish Code on Judicial Procedure in 1993 a leave-to-appeal system has been introduced for minor criminal cases in the courts of appeal. Such a system existed previously for minor civil cases.

Anders Knutsson,

†President of the Supreme Court of Sweden, retired

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