Law and Justice in Sweden

Swedish law as it exists today is the result of a long historical development marked by continuity rather than abrupt changes. Thus until 1974 the most important source of constitutional law was the Instrument of Government dating from 1809. It has been superseeded, however, by a new Instrument of Government which came into force in 1975.

The Swedish system of government as it has evolved until the present day, and as laid down in the new Instrument of Government, may be described as a representative democracy. This means that in elections held at regular intervals with universal suffrage and with equality of voting rights the citizens elect a decision-making assembly, the Riksdag (the Swedish Parliament). Another cornerstone of the Swedish system of government is parliamentarism.

As far as civil law and criminal law are concerned, the National Law Code of 1734 is still in force, at least officially. However, little of the Code's original contents remains. The majority of the balkar or books into which the National Law Code of 1734 is divided have gradually been replaced during the present century. Thus there have come into existence completely new books for marriage, wills and successions, real estate, criminal offenses, judicial procedure, and enforcement of judgments. In modern times, moreover, a mass of special legislation has grown outside the Code in such fields as company law, copyright, protection of industrial property and labor relations. In the case of public law, too, important legislation has been passed in recent times, not least in the fields of local and national physical planning, environmental protection and nature conservation.

 GENERAL CHARACTERISTICS OF SWEDISH LAW
Swedish legislation is based on a strong domestic tradition of Germanic law, but it has also been influenced by foreign law. Roman law has had less influence on developments than in most European countries. In a number of areas, influences from Roman law can be traced, while other fields exhibit features obviously drawn from German, French and, in later times, Anglo- American law. An important difference in relation to the majority of continental legal systems is that Sweden has abstained from large-scale codifications along the lines of the Code Civil in France or the Bürgerliches Gesetzbuch in Germany. In comparison with Anglo-American law, a major difference is that Swedish law is based to a considerably greater extent on written law, while case law plays a smaller, though important role. Thus the Swedish legal system, both by virtue of its systematic structure and its contents, may be said to occupy a halfway house between the Continental European and Anglo-American systems.

 Lawmaking today
A brisk pace of legislation has been maintained in Sweden for the past few decades. As mentioned earlier, several important sectors have been overhauled in their entirety. A prominent feature of Swedish lawmaking is that, since the end of the 19th century, much of it has been prepared in collaboration with the other Nordic countries. The result has been the achievement of a significant degree of legal uniformity in Scandinavia, especially in the field of civil law.

The parties in power have treaded warily with regard to constitutional and parliamentary procedures, as well as in matters relating to the organization of administration and justice. It is still true to say that Swedish public life is permeated to an unusually high degree by the ideals of a law-governed society. While this holds for the courts as a matter of course, it is noteworthy that the administrative authorities should also embrace judiciary forms to such a great extent. Swedish administrators have long followed the dictates of written law or well-established precedents.

It can be asserted, by way of summing up, that Swedish law in its broad organic aspect exhibits a rather peculiar mixture of traditionalism and radicalism. This goes some way toward explaining the decided penchant for compromises and middle-of-the-road solutions that have characterized the political climate.

 The Lawmakers
Power to enact laws is vested in the Riksdag, which consists of a single chamber with 349 members, directly elected once every four years. The Government (or Cabinet), however, has the power to issue decrees concerning less important matters. To some extent this power stems directly from the Instrument of Government. But the Government can also be granted power to issue decrees by means of acts of law passed by the Riksdag. The Government's authority to issue decrees mainly centers on matters concerning administration and economic policy.

If a bill touches on a law of importance to the public, the government should call for a statement of opinion from the Council on Legislation (lagrådet). This body is composed of justices of the Supreme Court and of the Supreme Administrative Court, which are the highest judicial and administrative authorities in Sweden.

Sweden still has a State church (Lutheran), and the most important legislative matters which affect it must be considered by the Riksdag after hearing the Church Assembly, which consists of elected representatives. The bond between the State and Church of Sweden is being revised, and the new arrangement is expected to take effect around the year 2000.

 The lawmaking process
In Sweden the spadework in the preparation of bills is done by commissions of inquiry, legal experts in the ministries, and Riksdag standing committees. Initiatives for new legislation can come from the Government or a government agency, from professional and trade union organizations or from other associations. Another common procedure is that the Riksdag, on the basis of bills introduced by individual members, requests that an inquiry be made concerning legislation on a certain issue. It is nowadays the exception rather than the rule for one or more members of the Riksdag to present a complete legal draft for consideration.

 Commissions of inquiry
As a first step the sponsoring minister, with the approval of the Government, appoints a commission of inquiry. If the proposed measure has political implications, the commission will usually consist of politicians from different parties and representatives of important interest groups, presided over by a highranking judge or civil servant. Junior judges will usually officiate as experts and secretaries. The scope of inquiry is defined by terms of reference. Depending on the nature of the task, the terms of reference may sometimes be quite broadly formulated, while in other cases they may be characterized by detailed and goal-oriented directives.

Swedish legislative commissions are noted for carrying out extremely detailed inquiries. The results of their work are generally presented in a report giving an exhaustive account of the present state of affairs in the field concerned (often with references to legal systems in other countries), a general justification of the changes proposed, and detailed draft proposals with commentaries on each clause. Commission reports are published in a special series known as Swedish Government Reports (Statens offentliga utredningar, SOU). Sometimes such reports include a summary in English.

To a certain extent, inquiries into matters of legislation are carried out in the ministry principally concerned, with the assistance of the ministry's own officials. This form of inquiry has become more common during recent years, especially with regard to legislation that is particularly urgent. It has met with criticism owing to the fact that the proposals are often drafted in a very concise form and are not accompanied by reasons for and against in the same detailed manner as are the traditional reports.

 Legislative work in the ministries and the Council on Legislation
When a commission has finished its work, its recommendations are examined by the legislation department of the ministry concerned. The commission's report is then sent out for written comment by interested authorities and organizations. If the proposed legislation is of more than average importance, as many as a hundred bodies may be invited to submit such comments, and some of these may run to the size of small books. Furthermore, any citizen has the right to submit his views on the proposal to the ministry. On the basis of the report and the invited comments, the matter is analyzed by experts within the ministry. The minister concerned and the Government then adopt a position on the issue. If it is decided to proceed with the matter, the ministry will prepare a bill. As mentioned earlier, the Government often refers this bill to the Council on Legislation for its opinion. This Council scrutinizes the bill from a legal point of view with particular reference to its coordination with other legislation and the quality of its formulation. After making such changes as are thought desirable in view of the Council's opinion, the Government presents the proposal as a bill to the Riksdag.

 The parliamentary stage of legislation
The most important part of the Riksdag's legislative work is performed within standing committees which are organized according to subject areas mainly following the ministerial division. Their composition reflects the political strengths of the parties in the Riksdag. Every committee has access to experts within its field. The committee deals with the Government's bills and with members' bills containing various amendments, which are usually called forth in connection with bills of major importance. The committee's work results in a report which contains a declaration of attitude toward the bill, often accompanied by opinions from minority groups within the committee. The bill and the report are subsequently dealt with at a plenary sitting of the Riksdag which, after a debate, votes on the bill. The Riksdag's decision is announced in a letter to the Government.

 Promulgation
The laws decided on by the Riksdag are promulgated by the Government. The enactments made by the Government are published in an official publication, the Swedish Code of Statutes (Svensk Författningssamling, SFS).

 The use of legislative material
The Swedish lawmaking process thus generates a voluminous body of printed matter which plays an important part as an aid in the enforcing of the legislation. As mentioned earlier, commission reports are published. The proposals referred to the Council on Legislation, the Council's opinion and the definitive government proposals are incorporated in the bill, which, like the commission report, is printed and distributed on behalf of the Riksdag. Given the scrupulous care taken in these materials to formulate the reasons and intent of the law, it becomes natural for courts, authorities and individual lawyers to rely on them as important sources of interpretation. The traditionally laconic wording of Swedish legal texts is largely possible only because the lawmakers have already expounded their views in pre- enactment reports and can feel sure that these will be taken into account.

 The courts and administration
Primary responsibility for the enforcement of legal rules devolves upon the courts and the various administrative authorities. As in other Western European countries, the court system occupies a special position. The difference between adjudicative and administrative authorities is less in Sweden than in most European countries, although there is a clear borderline between the courts and the administrative agencies.

The dividing line between what concerns courts and what concerns administrative authorities is to some extent laid down in the Instrument of Government. More detailed regulations in this respect are to be found, however, in legislation enacted by the Riksdag. As a general principle it may be said that the general courts enforce civil-law and criminal-law legislation. But the district courts, in addition to their primary concern with civil and criminal cases, also perform many duties of an administrative nature, related to transfers of property, land development, guardianships, probate, and so on. Administrative courts deal with decisions by public authorities (see below).

It should be noted that judges, prosecutors, senior police officers and attorneys have the same academic training. Moreover, the majority of law graduates serve in one of the courts of first instance for two years to gain experience before taking an appointment in the civil service or embarking on other careers.

 THE COURT SYSTEM
The general courts
Sweden has a three-tier hierarchy of general courts: the district courts (tingsrätt), the courts of appeal (hovrätt), and the Supreme Court (Högsta domstolen).

Courts of first instance
There are about a hundred district courts, which vary greatly in size. The smallest ones have only one or two legally-trained judges, whereas the largest one, the district court of Stockholm, is served by a very large number of judges. In the Swedish judicial system, district courts play the dominant role. In principle there are no limitations to their jurisdiction as regards the subject areas of the cases. All criminal and and civil cases start in a district court regardless of the severity of the alleged crime or the claimed amount in civil cases.

The chief judge of a district court carries the title of lagman. Working with him are one or more other judges (rådmän) and a number of judicial trainees, i.e. young law graduates employed as court clerks. The bench of district courts in Sweden is in most criminal cases and in some family law cases formed by one legally-trained judge and a panel of lay assessors, or nämndemän, who take part in the main hearings. Lay assessors are elected for three-year terms by local representative councils from a roster of eligible local citizens. Most of them are re-elected for consecutive terms, and since each lay assessor is on duty for around ten days in any one year, these panels develop considerable experience over a period of time. In criminal cases the bench usually consists of one legally-trained judge as chairman and three or five lay assessors, depending on the severity of the alleged crime.

The participation of nämndemän in the court proceedings, which has medieval traditions in rural courts and has constituted a significant element of democracy in Swedish public life, must not be confused with the Anglo- American and Continental jury. They are not only concerned with verdicts but also deliberate with the judge on points of law, such as the sanctions to be imposed in criminal cases.

In cases where the nämndemän do not take part, the bench in a district court generally consists of three legally-trained judges in civil cases or—in less serious criminal cases—one such judge. In certain types of case the bench is composed in a special way and technical experts may sit alongside legally- trained judges. This occurs, for example, in cases concerning expropriation and real estate.

About 10% of the total number of cases in district courts pass to the courts of appeal.

Courts of appeal
Sweden has six courts of appeal, of which the oldest and largest is the Svea Court of Appeal (Svea Hovrätt) in Stockholm, established in 1614. Appeals against judgments of district courts can be carried to a court of appeal, where as a rule they are decided by three, in some cases four, legally-trained judges, or by three legally-trained judges and two lay assessors. In insignificant criminal cases—where only fines have been imposed—and in civil law cases concerning small claims, a special permission of review is required to have a case tried by a court of appeal. In certain cases concerning expropriation and real estate, the bench is to be composed in a special way and is to include technical experts. The chief judge of a court of appeal carries the title Court of Appeal President (hovrättspresident). The preparatory work is to a large extent carried out by junior judges undergoing training. The ranks of junior appellate judges, incidentally, are recruiting sources for the secretaries and experts who work in ministries and on commissions of inquiry.

 The Supreme Court
Appeals against decisions of courts of appeal can be carried to the Supreme Court. The possibilities of having an appeal heard in the Supreme Court are, however, subject to special permission. Such permission is in principle only given if it is important for the enforcement of the law that the appeal should be heard by the Supreme Court. Thus on the whole it is only cases which are of interest from the point of view of possible precedents that are tried before the Supreme Court. If permission is granted, the case is heard by the Supreme Court, where the bench consists of five justices. In the Supreme Court, too, the preparatory work is largely done by judges in the course of their training.

 Court proceedings
The judgments of courts are based on what has emerged in the course of a concentrated main hearing, at which all evidence has been brought forward. In civil actions the main hearing is preceded by a preparatory stage, which likewise generally takes the form of oral proceedings. If the parties agree, civil cases can be decided during the preparatory stage. In criminal cases the main hearing will have been preceded by a preliminary investigation conducted by a public prosecutor. In higher courts, also, cases are in principle decided after an oral main hearing, but there exists a certain scope for deciding cases after written proceedings alone. Swedish judicial procedure is generally considered to contain satisfactory guarantees of legal security, but it has also been criticized for being too time-consuming and expensive, especially in cases where the amounts at stake are small.

 Legal aid
As a result of a reform introduced several years ago, the facilities for public legal aid have been considerably extended. Public legal aid means that the State makes itself responsible for the cost of legal assistance and other costs of litigation. The individual, however, has to contribute toward the costs by paying an amount which is determined in each particular case according to his or her economic circumstances. The losing party in a civil action, however, cannot be awarded legal aid to cover payment of the other party's legal costs. In criminal cases a public defense counsel has to be appointed for the accused, if the latter is unable to take care of his or her interests without such assistance. A public defense counsel is entitled to remuneration from public funds. If the accused is convicted of the offense, he or she may be ordered by the court to repay the costs incurred for the public defense counsel, if this is considered reasonable considering the personal and economic circumstances of the accused.

 The administrative court system
The task of the administrative courts may be described as one of maintaining due observance of the law within the public administration—at central, regional and local level. In these, the proceedings take a form corresponding quite closely to the proceedings at the courts of general jurisdiction. However, in contrast to general courts, proceedings in writing are predominant, although oral hearings are becoming increasingly common.

Thus appeals concerning assessment for taxation as well as appeals against certain decisions of administrative authorities and against decisions of local authorities e.g. to assume custody of minors or to consign alcoholics to special care institutions, etc., are dealt with by county administrative courts (länsrätter). Appeals against judgements of these county courts may be carried to the administrative courts of appeal (kammarrätter), which are four in number. In most cases a special permission of review is required to have a case tried by an administrative court of appeal. The highest administrative tribunal is the Supreme Administrative Court (Regeringsrätten) which—like the Supreme Court—in principle only tries cases which are of interest from the point of view of possible precedents.

The titles of the judges in county administrative courts are the same as in the district courts. Most cases are adjudicated by a legally-trained judge with three lay assessors. Cases before the administrative courts of appeal are generally adjudicated by three legally-trained members, but in certain cases, e.g. those relating to custody of children, lay assessors are also included in the court. In the Supreme Court of Appeal, the bench consists of five justices.

Public legal aid is also available in matters which are being considered by an administrative authority or an administrative court. As mentioned earlier, public legal aid means that the individual has to pay a contribution toward the cost which is adapted to his capacity to pay, and the costs of legal representation, etc., in excess of this are paid out of public funds. In certain administrative matters which involve measures against one's person, such as commitment to special treatment or deportation of foreign citizens from the country, legal aid may be made available in the form of a public counsel whose services are provided without cost to the individual.

The prosecutors
From July 1, 1996, the Swedish prosecution system is organized in 7 districts, each headed by a director of the public prosecution authority. In every district there are several prosecution chambers, each headed by a chief prosecutor (district attorney). The handling of criminal offences is concentrated to the cambers. The national government official responsible for all prosecutors is the Prosecutor-General (Riksåklagare). Public prosecutors are responsible for conducting the preliminary investigation in criminal cases as soon as a person can on reasonable grounds be suspected of an offense, and they decide whether or not a prosecution shall be instituted. Where young offenders are concerned, the prosecutor has the right in certain cases to waive such proceedings and instead allow the local Social Welfare Committee to take responsibility for the rehabilitation of the young person.

The Bar
In Sweden legal counsel is not required in court proceedings. In practice, however, an attorney or other person with legal training appears as a representative in the majority of civil actions. Defense counsel in criminal proceedings concerning serious crimes is appointed by the court. The appointee must be a member of the Swedish Bar Association (Sveriges advokatsamfund), a semi-official professional organization which imposes certain standards of discipline on its members. The number of attorneys is small in Sweden compared with many other countries. In connection with the reform of legal aid mentioned earlier, publicly funded law offices have been set up in each county. A person who qualifies for legal aid is free to choose whether to apply to be represented by someone from a private legal firm or from a public law office. Other practising lawyers, too, may be considered for such appointments. Remuneration to a person assisting in legal aid is paid in accordance with a fixed scale of fees.

Public legal aid can be made available also in proceedings for a settlement of litigation out of court. An important element in the system of legal aid is the opportunity which it offers for the individual to have a short consultation with a private legal firm or public law office for a small fee which depends on the length of the consultation.

Criminal sanctions
The general penalties are fines and imprisonment. Fines are imposed under the rule that offenders shall be made to experience equally severe punishment regardless of their financial position; the amounts are thus set in proportion to the person's daily income. Imprisonment has to a large extent been replaced by other penalties which are better calculated to readjust the convicted person to the community, e.g. conditional sentence or probation, in certain cases after a short period of imprisonment. Offenders under 18 years of age are only exceptionally sentenced to imprisonment.

THE ADMINISTRATION
The national administration is conducted by the Government and the various ministries and is organized in a well-developed network of administrative authorities. At regional level the national government is represented by the county administrations (länsstyrelser). The activities of the county administration are in the main directed to regional planning, including construction and environmental protection. Under the county administrations, local authorities have important tasks within, e.g., social welfare. In a number of spheres there are central administrative agencies, e.g. the National Board of Health and Welfare, the National Police Board, the National Prisons and Probation Administration, the Immigration Board, the National Labor Market Board, the National Tax Board. The central administrative agencies have a relatively independent position regulated in general instructions which are laid down by the Government.

The decisions of administrative authorities cannot be appealed against in an ordinary court of justice. Instead there is the special system of administrative courts mentioned above. The basic lines of the administrative authorities' procedures are now regulated by special legislation, which contains fundamental guarantees of legal protection. As a rule an appeal against a decision of an administrative authority can be carried to a higher authority. In principle, complaints can ultimately be carried to the Government, if appeals in the field concerned are not lodged with administrative courts.

 SPECIAL INSTITUTIONS OF CONTROL
The Ombudsmen
Outside Sweden, the best known of these institutions is probably the Office of the Parliamentary Ombudsmen (Riksdagens Ombudsmän or Justitieombudsmännen, JO), the first of whom was appointed in 1809. At present there is one office with general authority. It is divided between four Ombudsmen, one of whom has certain leading functions.

Since the end of World War II, several countries have set up similar offices based on the Swedish model. The Ombudsmen, who are almost always prominent judges, are appointed by the Riksdag for a term of four years. In many instances the same person has been re-appointed for several terms.

Their chief duty is to see that the courts and civil service observe and enforce the nation's laws, especially those which safeguard the freedom, security and property of its citizens. The Ombudsmen are assisted by a legally trained staff. They may make inquiries and obtain whatever information they consider necessary. Furthermore, they supervise actions of the local government authorities and of any person who in any way exercises public executive powers.

The Ombudsmen will always investigate a reported abuse by an authority if a complaint is addressed to them; the press is another source of information frequently used by the Ombudsmen. They may also investigate matters on their own initiative, for example after making one of their inspection trips. It should be pointed out, however, that they are neither all-powerful administrators nor judges. The Ombudsmen have the power to institute prosecutions in court or to report a negligent public servant to the authority where he is employed, for dismissal or disciplinary measures. However, the normal outcome in such cases is that the Ombudsman makes a statement as to whether, in his opinion, the act or decision of the public servant is unlawful or inappropriate. Each year the Ombudsmen submit an annual report to the Riksdag; these reports often contain proposals for the amendment of laws at points where they have found existing provisions to be defective.

The Ombudsman system in Sweden is of great importance as a guarantee against oppressive measures within the judicial system and the civil administration. It contributes greatly to the creation of public confidence in the activities of courts and other authorities.

In a number of areas there are Ombudsmen who are not appointed by the Riksdag but who have similar duties of surveillance in their own spheres. There are at present a Consumer Ombudsman, an Equal Opportunities Ombudsman, an Ombudsman Against Ethnic Discrimination, a Child Ombudsman, a Handicap Ombudsman, and a Press Ombudsman for the General Public; the last-mentioned office is not a public institution but is sponsored by media organizations.

 The Chancellor of Justice
The Instrument of Government also provides for the office of Chancellor of Justice (Justitiekanslern, JK), who undertakes approximately the same supervision of the courts and administrative organs as the Parliamentary Ombudsmen. The Chancellor of Justice, who is a Government appointee and usually someone with a distinguished record of service in the judiciary, follows the same procedures as the Ombudsmen. The office also supervises the limits of the freedom of the press in accordance with the Freedom of the Press Act and the limits of the freedom of expression in accordance with the Freedom of Expression Act. He also has authority to represent the State in civil litigation and serves the Cabinet as its chief legal advisor.

BIBLIOGRAPHY
The Constitution of Sweden 1995. Constitutional documents of Sweden. The Instrument of Government, The Riksdag Act, The Act of Succession, The Freedom of the Press Act, The Fundamental Law on Freedom of Expression. Published by the Swedish Riksdag. Stockholm 1996. 217 pp.

Constitutional Documents on Freedom of Expression. Published by the Swedish Riksdag. Stockholm 1993. 50 pp.

Scandinavian Studies in Law. Published under the auspices of The Faculty of Law, University of Stockholm. Almqvist & Wiksell, Uppsala 1957— (yearly).

Strömholm, Stig (ed.), An Introduction to Swedish Law, second ed. Norstedts förlag. Stockholm 1991. 532 pp.

In addition, there are a number of specific laws translated to English.

Published by the Swedish Institute, June 1996.