Swedish legal system

Treaties to which Sweden is a party do not automatically become incorporated into domestic law. A separate legislation or administrative act is required if the treaty con-tains provisions that are not in conformity with existing laws and regulations. Different methods may be used, varying from amending existing rules of law or introducing new legislation to prescribing that the text of the treaty or relevant provisions thereof shall have the force of Swedish law³¹⁴. As a general rule, treaty provisions acquire a legal status in domestic law only if they are incorporated by means of a legislative or administrative act. Their status is thus determined by the level of the act chosen to incorporate them.³¹⁵

Thus, although the Swedish legal system is usually placed among the dualistic systems in respect of international agreements, in view of the flexible means of implementing them Sweden seems to have rather applied for a long time a mixture of a monistic and dualistic system³¹⁶. When compared with Finland, the difference is that the Finn-ish legal system always requires specific implementation. The European Convention on Human Rights was not incorporated upon its ratification on 4 February 1952³¹⁷, but this took place considerably later. There was a debate on the need to incorporate the Convention already in the 1970s but the idea met with resistance due to political

314 Prop. 1993:94:117, kapitel 9.

315 Treaty Making 2001, p. 267. Cameron and Bull 2014, p. 266.

316 Prop. 1993:94:117, kapitel 9. See also Cameron and Bull 2014, p. 267, according to whom the present stricter approach to implementation appears to be a creation of case law of the Supreme Court (Högsta domstolen). Particularly as a result of the problems faced with the application of the European Convention on Human Rights, the Swedish Supreme Court and Supreme Administrative Court (Högsta förvaltningsdomstolen) found that the Convention did not create rights that could be directly invoked before national courts in the absence of national legislation implementing it.

317 Prop. 1951:165.

reasons.³¹⁸ The Act incorporating the Convention³¹⁹ entered into force at the begin-ning of 1995, providing explicitly that the Convention shall apply as law in Sweden.

However, this did not entail any dramatic change in Sweden, as the Swedish courts had started to increasingly apply the provisions of the Convention in their case law already before the incorporation, towards the end of the 1980s and the beginning of the 1990s despite that they were not directly applicable law in the country³²⁰, as well as the case law of the European Court of Human Rights. Today, especially the Supreme Court strives at taking the provisions of the Convention into account as much as possible³²¹, and the references have become more frequent and detailed. This is made easy by the technique of implementation in the same way as in Finland, whereby the provisions of the Convention have been implemented as such. Problems could be caused by possible conflicts between the implementing act and the constitution, as in such a situation the provisions of the constitution would prevail. However, such a situation has only seldom appeared³²². According to Cameron and Bull, Swedish courts pay particular attention to judgments of the European Court of Human Rights in those cases where Sweden has been a party to the case, and this may lead to changes in the traditional interpretations of national law or in the assessment of the proportionality of national measures³²³. In their view, however, it is not easy to assess the exact impact of the case law on the legal system, although particularly under the case law on Article 6 changes in national legislation have been made. In that particular case, Swedish legislation was also found to be in conflict with the European Convention on Human Rights. The more significant influence is perhaps the way the Convention and the case law under it affect the interpretation of law in general, in conformity with the Convention.³²⁴

318 Holmberg & Stjernquist 2000, p. 51.

319 Lag (1994:1219) om den europeiska konventionen angående skydd för de mänskliga rättigheter-na och de grundläggande friheterrättigheter-na. The amendments to the Convention have been taken into account by Act No. 2010:239. The English and French originals of the Convention have been published in the Swedish Treaty Series together with a Swedish translation.

320 However, Nergelius points out that although the Supreme Court showed willingness to pay attention to the Convention and the European case law, they were not formally part of appli-cable law in Sweden and therefore the incorporation is in his view significant (Nergelius 1996, p. 611).

321 See e.g. Högsta domstolen, judgments B119-06 NJA 2006 s. 467 (NJA 2006:53), Ö1082-09 NJA 2009 s. 280 (NJA 2009:30), B1982-11 NJA 2012 s. 1038 (NJA 2012:94), B4946-12 NJA 2013 s. 502 (NJA 2013:48), and Ö1526-13 NJA 2013 s. 746 (NJA 2013:67). The judgments include even detailed references to the case law of the European Court of Human Rights.

322 Cameron and Bull 2014, p. 275.

323 Cameron and Bull 2014, p. 277. In the same way as in Finland, the supreme jurisdictions play a particular role in taking a position on the impact of the case law of the European Court of Human Rights.

324 For details, see Cameron and Bull 2014, p. 278-283.

In general, it is interesting to note that in Sweden, a transition of the legal culture of protecting fundamental rights started to take place directly as a result of the judgments of the European Court of Human Rights, without waiting for the incorporation of the Convention.

Although Sweden had aimed at taking the provisions of the European Convention on Human Rights into account when drafting the fundamental rights provisions in the 1970s, this effort was not too successful. As of 1982, Sweden was found to have violated the Convention provisions in a number of cases, particularly with regard to the right to a fair trial.³²⁵ Some of the problems faced in Sweden will be given account of in more detail below in the case study on Article 6, paragraph 1. Despite those problems, when compared with the Finnish legal system, the Swedish one appears to have had fewer problems in the light of the Court’s statistics³²⁶, and is the lowest of the States covered by the present study although the size of the population is also small.

The constitutional protection of fundamental rights has also been strengthened, largely due to the impact of the European Convention on Human Rights. After a number of part-reforms of the Constitution, a debate and preparations for an overall reform was launched in the 1950s, particularly as a result of revised provisions on par-liamentary elections. The need for more effective and modern constitutional provisions was finally recognised.³²⁷ The final proposal for an overall reform of the Constitution was submitted in 1972 (1973:90).³²⁸ A separate Chapter on fundamental rights, i.e.

certain basic civil and political rights, was included in the 1974 Form of Government³²⁹. The need to supplement those provisions was not reviewed until in the 1990s and at the same time, it was proposed that the European Convention on Human Rights be

325 See Holmberg & Stjernquist 2000, p. 50. These cases include, inter alia, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, Pudas v. Sweden, judgment of 27 October 1987, Series A no. 125-A, Bodén v. Sweden, judgment of 27 October 1987, Series A no. 125-B, Tre Traktörer Aktiebolag v. Sweden, judgment of 7 July 1989, Series A no. 159, Allan Jacobsson v. Sweden (No. 1), judgment of 25 October 1989, Series A no. 163, Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, Mats Jacobsson v.

Sweden, judgment of 28 June 1990, Series A no. 180-A, Skärby v. Sweden, judgment of 28 June 1990, Series A no. 180-B, and Fredin v. Sweden (No. 1), judgment of 18 February 1991, Series A no. 192.

326 On 31 December 2013, the total number was 54 out of 130 judgments issued for Sweden.

The difference is considerable in view of the late moment of accession of Finland to the Convention.

327 Holmberg & Stjernquist 2000, p. 30 and 31. Despite that, a further part-reform of the Constitu-tion was proposed in 1967 and approved in 1968-1969.

328 See Holmberg & Stjernquist 2000, p. 33.

329 Regeringsform, 2 kapitel (Grundläggande fri- och rättigheter), SFS 1974:152. See also Nergelius 1996, p. 607.

incorporated in Swedish law³³⁰. The reason for the specific incorporation, unlike in the case of other applicable human rights conventions, was the special character of the European Convention on Human Rights as an instrument creating law through the case law of the European Court of Human Rights. Around the same time, the freedom of expression was further strengthened by supplementing the freedom of press decree with a new freedom of expression act in 1992 to adapt legislation to other forms of media³³¹ which has again been amended to take into account new developments in the media³³². Upon the legislative amendments and particularly the incorporation of the Convention into Swedish law, the protection of fundamental rights is now con-sidered to be relatively strong in Sweden. In the view of Berggren & al., the protection of property could perhaps be even stronger, although it has also been suggested that in some respects, the protection of property in Sweden today is even stronger than it would be under the Convention.³³³ When compared with Finland, the technical criteria for the application and interpretation of the European Convention on Human Rights have been entirely met later after ratification. That also made the transition of the legal culture of protecting fundamental rights and human rights slower than in Finland, but it appears to have been slower also in France and England. In that respect, it is interesting to note the low total number of violations found against Sweden, which could perhaps be explained by inactivity or weaker awareness of the Convention provi-sions among lawyers.