III Table of cases
3. Second phase of transition of the legal culture – development of the meaning of the Convention
3.2 The European Court’s discourse and its similarities with and differences from the judicial style of national courts – and differences from the judicial style of national courts –
3.2.4 Swedish judicial style
Swedish is an official language of court proceedings in two States covered by the present study, i.e. Sweden and Finland. Given that Finland was part of Sweden and the legal system was thus the same until 1809 as explained in the foregoing, also the language of legislation was the same. Also, the language of court proceedings in Finland was Swedish until a rather late moment. Even under the Russian rule, part of legislation was still drafted in Swedish in Finland, until the original language of drafting gradually changed in favour of Finnish430. The language of legislation and other legal and official texts has been subject to systematic research in the Nordic countries since the 1960s431. Insofar as the language of judgments is concerned, the Swedish language in the
429 See e.g. Bundesverfassungsgericht judgment 2 BvR 1380/08 vom 18.8.2013 with several references, in which the interpretation of law appears to be based on both national law and the Convention although the decision relates to a constitutional complaint. The references are not always that detailed, however, even where the reasoning may otherwise be even very detailed (see e.g. an older judgment 2 BvR 1436/02 vom 24.9.2003).
430 Svenskt lagspråk i Finland 2010, p. 47.
431 See Landqvist 2010, p. 47. In respect of research on legal Swedish, the majority studies have, according to Nordman, focused on the language of legislation. For more details, see Nordman 2008, p. 254-257.
two States started perhaps to develop their own ways earlier and more rapidly than in respect of legislation. Judgments are to some extent drafted in Swedish also in Finland in case it is the language of proceedings, although the number of such judgments is small. Each court of course writes its own judgments independently, although they do follow a certain pattern in both States, and in both States the judiciary is divided into general courts of law and administrative courts432, and the style of judgments in the two branches differs to some extent. Although the two States and their legal systems have been separate since 1809, there are still some similarities in the language and structure of judgments. However, in Finland, the same structure is followed in respect of both judgments issued in Finnish and those issued in Swedish. In general, in the judgments issued in both States, the statement of reasons and the conclusions are placed in the end of the text of the judgment, preceded by the parties’ claims, questions of law and facts, although in Sweden it has been suggested that the order be switched so that the decision is placed at the beginning of the text433. When compared with the judgments of the European Court of Human Rights, the order is more or less the same in the judgments of Swedish and Finnish courts.
Landqvist observes that the language of judgments is to some extent affected by the fact that the judgments issued both in Sweden and Finland are primarily addressed at the parties, despite that they are of use for other courts and authorities as well as for scholars. This is perhaps the most striking difference between German and Swedish and Finnish judgments434. As observed in the foregoing, German judgments sometimes constitute a sort of a dialogue among courts and scholars. Landqvist is, nevertheless, of the view that the judgments issued in Finland are somewhat easier to conceive than those issued in Sweden for the reason that the sentences are usually shorter and subtitles are used435, which would give reason to assume that the addressees of the judgments have been taken better into account in Finnish courts.
An analysis of a few judgments of the Supreme Court of Sweden, in which the European Convention on Human Rights and the case law of the European Court of Human Rights has been used as sources of law, gives reason to believe that the judicial style may be changing to some extent in Sweden436. This observation is supported by
432 The names of the courts are partly different in the two countries.
433 See Landqvist 2010, p. 62. In respect of Sweden, Landqvist refers to a report concerning the increase of trust in the judiciary (SOU 2008:106).
434 The early Swedish judgments have shared elements in common with both French and German judgments, although the style has been somewhat closer to the French one (Wetter 1960, p. 25 and 26).
435 Landqvist 2010, p. 62 and 63.
436 The judgments of Högsta domstolen analysed for the purposes of the present study include NJA 2006 s. 467 (NJA 2006:53, mål B119-06), NJA 2009 s. 280 (NJA 2009:30, mål Ö1082-09), NJA 2012 s. 1038 (NJA 2012:94, mål B1982-11), NJA 2013 s. 502 (NJA 2013:48, mål B4946-12), and NJA 2013 s. 746 (NJA 2013:67, mål Ö1526-13).
Bergholtz and Peczenik, who have analysed the style of judgments from the 19th cen-tury until the present437. In the judgments issued before the entry into force of the Act incorporating the European Convention on Human Rights into national law, there are some references to the Convention, but the references are very concise. One may also note that the courts rather paid attention to the provisions of the Convention instead of applying them.438 This can be explained by the fact that the Convention and thus the case law of the European Court of Human Rights were not formally part of ap-plicable law in Sweden. In the judgments issued after the entry into force of the Act incorporating the Convention, the Convention is clearly stated as being applicable law in Sweden. In the early judgments where references to case law already appear, the references are still in most cases brief and contain no analysis of the contents of the case law, despite that the Convention provisions are already used in a more de-tailed manner in the reasoning. In some recent judgments the references are, however, extensive and detailed. In the judgments concerning the prohibition of double sanc-tion439, referred to in section 4.2.2 below, the Supreme Court advanced from old case law to new one, and analysed the significance of the Convention provisions and of the change of interpretation in the case law of the European Court of Human Rights for the application of law in Sweden.440
Generally, given the rather flexible approach of the Swedish legal system to the use of sources of law and the more frequent resorting to the principle of objective and purpose of law than in Finland, the Swedish judiciary should in principle be able to adapt itself to the discourse of the European Court of Human Rights. The number of violations found against Sweden is rather low when compared with Finland, which gives reason to believe that there have been no major problems faced by the judiciary despite the slow resorting to the application of the case law. It is, however, only rather recently that the judiciary has shown preparedness to resort to more detailed reasoning
437 In their view, the style of the opinions of Swedish higher courts have changed continually since the end of the 19th century, from deductive, brief and magisterial justification, resembling that of French judgments, towards a more discursive, elaborate and argumentative style. For details, see Bergholtz and Peczenik 1997, p. 295 and 296.
438 In the words of the Supreme Court of Sweden, ”I detta sammanhang finns det anledning att beakta innehållet i artikel 6 av Europakonvention om de mänskliga rättigheterna.” See NJA 1991, p. 512. Or alternatatively, ”Även bestämmelserna i artikel 6 punkt 1 i Europakonvention om de mänskliga rättigheterna har betydelse för prövning av frågan om muntlig förhandling borde hållits i TR:n.” See NJA 1993, p. 109.
439 NJA 2013 s. 746 (NJA 2013:67, mål Ö1526-13), in which the references to the case law of the European Court of Human Rights are rather close to those in recent Supreme Court judgments in Finland, with rather detailed argumentation, and NJA 2010 s. 168 I och II (NJA 2010:19, mål B2509-09 and mål B5498-09, decided jointly).
440 NJA 2010, p. 168. A very detailed analysis can also be found e.g. in NJA 2009, p. 280, whereas in NJA 2008, p. 868, the technique of referring to the case law of the European Court of Human Rights was still brief.
with regard to the case law of the European Court of Human Rights. The potential problems faced by the Swedish judiciary in the receptiveness to the Court’s discourse are presumably rather similar to those faced by the Finnish courts. As regards the pos-sible influence of the judicial style of Swedish courts on the discourse and style of the European Court of Human Rights, one could place the Swedish legal system in the same group of States with Germany, which together appear to have played a rather strong impact on the Court’s approach to reasoning. The impact of the Swedish legal system alone would be hard to assess.