In detail...

The European Convention of Human Rights in the Legislative Contradiction with the Supreme Court of Sweden

1. Introduction

Swedish law is based on a dualist approach to the relations between interna≠tional treaties and domestic law. In other words, a treaty ratified by Sweden does not automatically become part of Swedish domestic law. In a judgment from 1973, the Swedish Supreme Court (Högsta domstolen) explained the situation as follows:

Even if Sweden has become a party to an international treaty, that treaty will not be directly applicable as part of domestic law. Insofar as the treaty embodies principles which were not already accepted in Swedish law, a corresponding act of legislation ('transformation') must be carried out

As regards the act of legislation to which the Supreme Court referred, the legislature has a choice between different methods. One traditional method is to adopt a new law in which the provisions of the treaty have been 'translated' into new rules drafted in accordance with Swedish legislative technique. The new law, which may not even contain a reference to the treaty forming the background of the law, will then look like any other piece of Swedish legisla≠tion. The advantage of this method is that it may be easier for the courts and also for private parties to understand and apply the law. On the other hand this is a cumbersome and time-consuming method requiring a great deal of legisla≠tive work. An obvious risk is also that the new text will not faithfully reflect Sweden's obligations under the treaty, which may create doubts as to whether Sweden lives up to its international obligations.

Another method - often called 'incorporation' - has the advantage of being simpler. Its use is increasing and has almost become a necessity in many areas where there are numerous and extensive international agreements. Incorporation means that a brief law is adopted according to which the treaty in its original form shall apply in Sweden as domestic law. Where necessary, the law can contain some additional rules about measures which may be required to give effect in Sweden to some of the provisions of the treaty.

In regard to the European Convention on Human Rights, neither of these methods has so far been applied, which means that the Convention is not at the present time part of Swedish domestic law. When Sweden ratified the Convention, it was considered that the existing domestic law was sufficient to give effect to the obligations under the Convention and that no act of legislation was therefore required. This was certainly a much too optimistic view. The experience of the last decades clearly shows that problems under the Conven≠tion may arise in any Convention State, and it must be regarded as easier, at least in principle, for those States which apply the Convention directly to solve such problems at the domestic level.

However, the fact that the European Convention is not part of Swedish domestic law does not mean that the Convention is disregarded by Swedish courts. The Convention is frequently referred to before these courts, and during the last years the Supreme Court, whose task it is to develop the case-law and thereby to give guidance to all lower courts, has paid considerable attention to the Convention, and not only to the text of the Convention itself but also to the judgments of the European Court of Human Rights. The Supreme Court has acted on the basis of the established legal principle that Swedish law shall, whenever possible, be interpreted in conformity with Sweden's international obligations, and has in fact in some respects gone far in adapting the interpreta≠tion of Swedish law to the requirements of the European Convention.

The Supreme Court has even taken the view that the European Convention may affect the interpretation of Swedish constitutional provisions. In a case concerning the validity of an arbitration clause, the Supreme Court stated that the provisions of the Convention may 'illustrate' the meaning of the provisions of the Instrument of Government (Regeringsformen), which is the principal constitutional law of the country. In a subsequent case, the question was whether an order that the freedom of movement of an alien suspected of working for a terrorist organisation should be restricted to a certain area and that the alien should be obliged regularly to report to the police constituted a deprivation of liberty within the meaning of the Instrument of Government.

The Supreme Court dealt in its judgment with the provisions of the European Convention regarding deprivation of liberty and stated that 'even if the Conven≠tion does not constitute Swedish law, it is natural that its rules about fundamen≠tal rights affect the interpretation of the Instrument of Government'. The Court therefore examined at length the interpretation of the term 'deprivation of liberty' in Article 5 of the Convention by referring in particular to the Guzzardi judgment of the European Court of Human Rights and concluded on this basis that the alien concerned could not be considered to have been deprived of his liberty. A similar reasoning was later applied in another case regarding basi≠cally the same issue.

2. A Case Study: Article 6 ECHR and Swedish Judicial Procedure

††††††††††† The influence of the European Convention on Human Rights on the case-law of the Swedish Supreme Court has been particularly striking in the area of procedural law. It is in this area that Sweden has been confronted with particu≠lar problems in regard to the Convention, as appears clearly from a number of Strasbourg judgments. Some of these judgments have related to the absence in Swedish law of a judicial remedy against certain administrative decisions, and this deficiency could only be eliminated by new legislation. A new Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa forvaltningsbeslut), adopted in 1988, introduced the court remedy which had been lacking.

There were other procedural problems which could be resolved, without legislation, in the case-law of the Supreme Court. One such problem concerned the right to an oral hearing in the Court of Appeal.

Questions of oral hearings at the appeal stage may arise in criminal as well as civil cases and also in some cases which, under the Swedish system, are regarded as being neither criminal nor civil but which nevertheless, according to the Strasbourg case-law, concern the determination of civil rights and to which Article 6 of the Convention therefore applies.

††††††††††† The Swedish appeal procedure involves in principle a full review of the attacked decision as regards the facts as well as the law. In criminal cases a new oral hearing is normally held, but there are exceptions, particularly in certain cases involving only minor offences where the sanction which may be imposed is not more than a fine. In civil cases a new oral hearing in the Court of Appeal is also the rule, but if both parties agree that the case should be decided without a hearing, this may be done. In fact, if the appeal is based exclusively on points of law, the parties may not find it necessary to appear before the Court of Appeal, and an advantage for the parties when the Court of Appeal decides the case on the basis of written submissions is that lawyers' costs are reduced and that the personal inconvenience resulting from the necessity to appear before the court is avoided.

††††††††††† The European Court of Human Rights has developed a case-law - partly in.Swedish cases - regarding the right to an oral hearing at the appeal stage. In the Ekbatani case, which concerned a minor criminal case where questions of credibility were crucial for the outcome, the European Court found that it had been wrong, and not in conformity with Article 6 of the Convention, to deny the applicant a hearing.

††††††††††† This judgment has influenced the case-law of the Swedish Supreme Court. In one case that Court quashed a Court of Appeal judgment given without a hearing on the ground.that the Swedish rule which makes it possible to refuse an oral hearing in minor criminal cases must be interpreted in a particularly restrictive manner in view of the judgment in the Ekbatani case.

Subsequently the European Court has refined and further developed its case-law in two judgments, both in Swedish cases - the Jan-Ǻke Andersson case and the Fejde case.

From the Court's judgments in these two cases it appears that an oral hearing may not be necessary at the appeal stage when no question of credibility or evaluation of evidence arises. These judgments will undoubted≠ly also influence the manner in which Swedish courts will in the future conduct the proceedings in appealed cases.

The effects of the Strasbourg case-law on Swedish judicial practice have been even more significant as regards a special kind of appeals which are not directed against court judgments in civil cases but which, as Article 6 of the Convention has been interpreted by the European Court, must nevertheless be considered to concern the determination of civil rights. A typical example is an appeal lodged against executive measures taken by the enforcement author≠ities. In such cases the appeal procedure under the Swedish Code of Judicial Procedure (Rättegångsbalken) is in principle a written procedure, although the Court of Appeal may decide to hear a party, a witness or any other person orally when this appears to be required for the good conduct of the proceed≠ings. However, such oral hearings were in the past rare in practice.

The judgment in the Håkansson and Sturesson case contains important guidelines for the Swedish courts as to the procedure to be applied in this regard. The case concerned an appeal against a public auction arranged by the enforcement authorities in order to sell certain agricultural property which the applicants in that case were not allowed to retain. In the applicants' opinion the property had been sold at a price which was too low. From the European Court's judgment two important conclusions can be drawn, namely, on the one hand, that in such a case there is a right under Article 6 of the Convention to obtain an oral hearing before the Court of Appeal and, on the other hand, that, if a party wishes to have an oral hearing, he can be expected to request the Court of Appeal to hold such a hearing. Failure to make such a request can, as was done in the Håkansson and Sturesson case, be interpreted as a tacit waiver.

In subsequent judgments the Supreme Court has pointed out that the previ≠ous restrictive use of the possibility to hold oral hearings in this kind of cases could no longer be upheld, but a new practice had to develop which would take into account the requirements of Article 6 of the Convention.

When in another case of a similar nature the Court of Appeal had refused a hearing, the Supreme

Court quashed the ruling of the Court of Appeal on the basis of the following reasoning:

The statutory text indicates that strong reasons are required for a hearing to be held in this kind of appeal case. In practice such hearings would seem to be rare (...).

The reasons for oral proceedings which Barbro J has invoked are not of such strength as are required under the provisions of the Code of Judicial Procedure. In this respect too it is reasonable, however, to take into account the provisions of the European Convention and the decisions of the European Court (...). In the aforementioned case of Håkansson and Sturesson the Court concluded that the parties concerned had been entitled under the Convention to an oral hearing in the proceedings before the Court of Appeal when the conditions for the public auction were examined.

††††††††††† In view of the said judgment of the European Court, and considering that in Swedish law there is no obstacle to such a procedure, the Supreme Court considers that an oral hearing shall be held in this case.

††††††††††† This new case-law has been adhered to and further developed in a number of subsequent cases examined by the Supreme Court. There have for instance been cases where, after certain property had been seized in execution of a person's debts, a third party claimed to be the owner of that property. This raised a new issue which had not been examined in the previous civil proceedings, to which the person who claimed ownership had not even been a party, and he was therefore entitled to have his claim examined after oral proceedings.

††††††††††† In another case it was the debtor herself who considered that her property had been sold by the competent authorities in execution of her debts at a price far below its real value, which, if it was true, was in conflict with certain provisions of the Enforcement Code (Utsökningsbalken). †This too was an issue which had not been examined in previous proceedings and the Supreme Court therefore found that, in view of the requirements of Article 6 of the Convention, an oral hearing should have been held by the Court of Appeal. The author of this article participated as a judge in the Supreme Court's decision and attached to the judgment a separate opinion, in which he tried to explain the relevant principles emerging from the case-law of the European Court of Human Rights, the purpose being to provide Swedish judges with information in this regard which might be useful for them in future cases.

††††††††††† Another problem which the Supreme Court has sometimes considered in the light of Article 6 of the Convention is whether it is permissible in criminal cases to invoke as evidence statements which have been made by witnesses or other persons outside the trial, for instance during the preliminary investigation of the case or when they were heard by the police. This is a problem which the European Court has dealt with in a number of cases (the Unterpertinger, Delta, Isgro, Asch and Artner cases and, from a somewhat different angle, also the Kostovski, Windisch and Lüdi cases). The principles which have been developed would seem to be the following. The procedure must be adversarial in the sense that the accused or his lawyer must be given the opportunity of attending the hearing of the person concerned and of putting questions to him. However, the adversarial hearing can in some cases take place before the actual trial in the case. Moreover, it may be permissible to invoke statements made without such an adversarial hearing when these statements are only part - and not a decisive part - of the evidence against the accused.

††††††††††† The Supreme Court was confronted with these problems in two cases regarding grave narcotics offences where the main evidence consisted of information given by certain persons when they were heard abroad by foreign police and in one of the cases also of statements made abroad at a court hearing. In the first case the statements had been made at a police station in England where a person had been interrogated by British police officers but in the presence of Swedish police and of the public prosecutor and the defence lawyer in the case pending in Sweden. The public prosecutor and the defence lawyer had also been allowed to put questions to the interrogated person. Taking into account the case-law of the European Court, the Supreme Court found that, in view of the fact that during the hearing in England the parties to the Swedish proceedings had been present and allowed to put questions, the defence rights of the accused in Sweden had been sufficiently safeguarded. The Court added, however, that, since the hearing had not taken place during the trial but at an earlier stage, the statements had to be evaluated with caution. In the second case the situation was somewhat different. The main evidence consisted of statements made to the Danish police and during court hearings in Denmark by accomplices of the persons accused in Sweden.

On those occasions neither the accused nor their lawyers had been present. The Supreme Court further noted that it would have been possible for the Court of Appeal to arrange for a hearing in Denmark at which the defence lawyers would have been allowed to put questions to the persons concerned. The Court of Appeal should therefore not have limited itself to examining the records of the interro≠gation which had already taken place but, in accordance with the principles developed by the European Court, should have taken steps to bring about a new hearing in the presence of the defence lawyers.

††††††††††† Subsequently the Supreme Court has also dealt with a case regarding a charge of robbery in which it had not been possible to summon the alleged victim of the offence to appear before the District Court. In these circumstances the statements made by that person to the police were invoked as evidence and the accused was convicted, mainly on the basis of that evidence. The Supreme Court, referring to the European Court's case-law, considered this to have been an unfair procedure and referred the case back to the Court of Appeal.

3.† Concluding remarks

It is easy to exaggerate the difference between those countries where the European Convention is part of domestic law and those where this is not the case. The example of Sweden shows that even in a country belonging to the dualist group the European Convention can have a considerable impact on domestic law. The principle according to which internal legal provisions shall so far as possible be interpreted in conformity with the Convention can in reality give the Convention a decisive impact in many areas.

This is not to say that the incorporation of the Convention into Swedish law would be without practical consequences. It would undoubtedly lead to a greater awareness of Convention law among Swedish judges and lawyers and encourage them to get better acquainted with the Strasbourg case-law. It would also be seen as a symbolic act of recognition of the importance and value of the legal principles reflected in that case-law.

The question of whether or not to incorporate the Convention into Swedish law has been discussed in Sweden for a long time. Despite the hesitation shown by a number of successive Swedish Governments, the issue has for some time been under active and favourable consideration. It is of some importance in this respect that the Convention is already part of the domestic law of two other Nordic countries, the neighbouring Denmark and Finland, and that Norway is expected to follow suit. In such circumstances it seems very likely that Sweden will also soon opt for making the Convention part of Swedish domestic law. A proposal to this effect has in fact recently been made by a Governmental Commission which was set up to study various questions relating to the strengthening of the constitutional protection of fundamental rights in Sweden.

Hans Daneleus,

†Judge of the Supreme Court of Sweden, retired

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