[Editor’s Note: This is the fifth installment in our Year-in-Review series. We welcome similar reports from scholars around the world on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy, the Slovak Republic, Romania and Belgium. As we have done in the past, we reiterate our sincere thanks to our contributors for how much they have contributed to our learning and appreciation of public law around the world. Today we give great thanks to our Swedish contributors. –Richard Albert]
—Anna Jonsson Cornell (Professor, Uppsala University) in cooperation with Thomas Bull (Justice at the Supreme Administrative Court), Lars Karlander (doctoral student, Uppsala University) and Anna-Sara Lind (Senior Lecturer, Uppsala University)
The Swedish court system is composed of administrative courts and courts of general jurisdiction. There are also a number of specialized courts such as the Labour Court and the Patent and Market Courts but they will not be dealt with here. Our focus will be on the case law of the Supreme Court (Högsta Domstolen (HD)) and the Supreme Administrative Court (Högsta förvaltningsdomstolen (HFD)). Sweden does not have a constitutional court.
Judicial review is decentralized and exercised only in concrete cases. According to the Instrument of Government (Regeringsformen, RF) chapter 11 article 14, a court shall not apply a provision that conflicts with a provision of fundamental law (Sweden has four fundamental laws) or other superior statutes. The same applies if a procedure laid down in law has been set-aside in any important aspect when a provision was adopted. Should a court find such a violation the provision will be set-aside in that particular case. Swedish courts cannot declare a rule null and void. In addition, public bodies exercise judicial review, RF 12:10.
At the latest reform of the Instrument of Government (2010) RF 11:14 was changed. The demand that any violation of a statute by for example a regulation had to be obvious for the latter to be declared non-applicable was removed. The “obvious-rule” served to protect the prerogative of the legislature. The new RF 11:14 para. 2 states that “In the case of review of an act of law under paragraph one, particular attention shall be paid to the fact that the Riksdag (the Parliament) is the foremost representative of the people and that fundamental law takes precedence over other law”. Sweden being a parliamentary democracy the role of courts and hence their exercise of judicial review has been comparatively limited historically. However, the Swedish EU-membership and the European Convention for the Protection of Human Rights and Fundamental Freedoms becoming Swedish law in 1995 changed the setting. More than 20 years later it is clear that the role of Swedish courts in both constitutional law issues and otherwise has been strengthened in relation to the legislature.
On the issue of constitutional interpretation, Swedish courts will usually give great weight to the preparatory works of the constitutional documents, such as the Government’s proposal of a bill to Parliament and the Parliament’s written report on such a proposal. This is still the case in most areas of constitutional interpretation. However, recent case law has shown willingness for a more dynamic approach when it comes to issues that touch upon the protection of constitutional rights. For example, a violation of a constitutional right has been found to give the individual concerned a right to economic compensation through tort law even when no clear legal basis for such a right exists in the legislation on torts or in the Constitution (see NJA 2014 s. 323 and NJA 2014 s. 332). If this extensive application of tort law in connection with constitutional rights is a more general trend or more due to the very special circumstances in the cases in point remains to been seen.
This review provides an overview of the most important decisions with constitutional law implications adopted by the Swedish Supreme Court and the Swedish Supreme Administrative Court in 2015. The decisions are structured taking the subject matter at hand into consideration.
This review starts with cases dealing with general matters such as the principles of proportionality and objectivity, to be followed by the ne bis in idem-cases, cases dealing with access to official information and freedom of speech, procedural rights and finally cases dealing with consent and compulsory treatment in medical law. These cases are selected, on the basis of their dealing with constitutional questions, from the official reporting system of the Supreme Court and the Supreme Administrative Court. When referring to a court or a fundamental law the short version in Swedish is used.
Reported cases from the Supreme Court are published in Nytt Juridiskt Arkiv (NJA) and they are referred to using the following model: NJA 2015 s. 899, (NJA year page). Reported cases from the Administrative Supreme Court are referred to using the following model HFD 2015 ref 16 (Högsta förvaltningsdomstolen (HFD) year ref.).
The four Swedish Fundamental Laws are available online in English here.
II. Case Law of the Supreme Court and the Supreme Administrative Court
A. General matters
- HFD 2015 ref 16 – The applicability of the principle of proportionality
It follows from the Driver’s Licence Act that a decision on requirements for alcolock during a certain period should be removed if the driver does not meet the criteria put forth in the Act. One criterion is that the applicant does not consume narcotics as stated in the Criminal Act on Drugs. If that is the case and if the decision to remove the alcolock is taken, the driver’s license should also be removed. In this case the applicant had been convicted for drunken driving and had received a decision to keep the driver’s license with the alcolock. But when the applicant underwent surgery and following his doctor’s ordination took pharmaceutical drugs that are classified as drugs according to the Criminal Act on Drugs. However, this happened while his driving license was conditioned with a decision on alcolock. The Court did a thorough investigation of the preparatory works in order to assess whether the legislator had the intention to include all sorts of drug consumption in the Driver’s Licence Act, including intake due to medical reasons and on doctor’s ordination. The Court concluded that there was no room to interpret the Act other than literally. Accordingly, the decision on special requirements for the driving license should be removed and the license be withdrawn. The room for a proportionality analysis thus seem to be dependent upon the textual formulation of legislative acts. Justice Bull, however, was dissenting and stated that such an outcome would be contrary to the principle of proportionality and that such an analysis could be done even when the law in question lacked any provision opening for a weighting of interests.
- HFD 2015 ref. 51 – Withdrawal of authorization and the constitutional principle of objectivity
In this case, the applicant was a wedding officiant with a license to conduct civil wedding ceremonies. The license contains a requirement that the officiant should have the knowledge and qualifications needed to fulfil the mission to wed. If that is not the case, the license is withdrawn. Ultimately the license is an expression of the State delegating to a private party to perform an act equivalent to the exercising of public authority, regulated in Chapter 12 Article 4 Instrument of Government. When exercising public authority, the wedding officiant is required to treat everyone alike and observe objectivity and impartiality (Chapter 1 Article 9). These fundamental rules are also stated in ordinary statute. The Authority trusted with supervising the wedding officiants had decided to withdraw the applicant’s license as he was a board member of a company specialized in delivering and selling services linked to weddings. The link between his tasks as a wedding officiants and his board commitment was seen as too close. The applicant appealed the decision and the case finally reached the Supreme Administrative Court. The Court agreed with the Authority’s decision and stated that it was not possible to combine the tasks as a board member with the high demands on impartiality and objectivity that are fundamental for the exercise of public power. The appeal was accordingly dismissed.
- NJA 2015 s. 899 – Breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms through industrial action as a basis for tort liability
In the Builders’ Union collective agreement a clause on monitoring fees was included until the European Court of Human Rights (ECtHR) ruled that it was not in accordance with the European Convention and the right to property (see Evaldsson and Others v. Sweden, no. 75252/01, 13 February 2007). The applicant in the case before the ECtHR had suffered severe financial damages as a result of the collective actions that the Builders’ Union undertook before the ruling of the ECtHR. The applicant asked for compensation before the Supreme Court as he had gone bankrupt, claiming that the collective action was illegal. The Supreme Court took as its starting point Chapter 2 Article 14 of the Instrument of Government where it is laid down that a trade union or an employer or employers’ association shall be entitled to take industrial action unless otherwise provided in an act of law or under an agreement. The Builders’ Union is a non-profit organization that is independent in relation to the State. Membership in the organization is voluntary and it does not exercise any public power. This means that the Union does not have an independent and direct responsibility for breaches of the ECHR, cf. Article 13 ECHR. The case law of the Supreme Court is accordingly still valid, i.e. the ECHR does not have direct horizontal effect (see HD in NJA 2007 p. 747, para 17).
The Supreme Court ruled that it is clear that tort liability for a private party cannot be triggered as soon as an action includes a breach of a right stated in the ECHR. There is, however, a responsibility for pure economic loss in tort that ought to be established if the infringement, taking the circumstances into consideration, is undue in a qualified manner. Whether this is the case is to be decided on a case-by-case basis. In this case, The Supreme Court stated that the values expressed in Chapter 2 Article 14 IG should be taken into consideration, foreseeability be stressed, and the approach should be restrictive since many could potentially be held responsible for such breeches. The Court thereafter declare that there must be proportionality between the liable action and the responsibility, as well as to what is practically possible to handle. In this case, there would also be consequences for labour law and that should be taken into account. The Supreme Court explained that the Union does not have a position that could lead to responsibilities as stated in Article 13 ECHR or Swedish law. Responsibility does not follow from direct application of the ECHR nor through any application of general principles of tort law in conformity with the convention. The Supreme Court ruled that the mere existence of a breach of a convention right was not directly sufficient to trigger liability for compensation and added that its ruling does not exclude the possibility of such a breach to give a right to compensation for loss under the general principles of tort law.
B. Ne Bis In Idem
Following the CJEU’s judgment in the case C-617/10 Åkerberg Fransson, the Swedish Supreme Courts (NJA 2013 s 502 & HFD 2013 ref 71) found that the Swedish system of imposing both tax surcharges through the Tax Agency and prosecuting tax crimes for the same action, violated the right not to be tried or punished twice for the same crime (ne bis in idem) according to art 50 of the EU Charter of Fundamental Rights and art 4.1 of the 7th additional protocol to the ECHR. These judgments lead to a number of cases being brought before the Swedish Supreme Courts regarding tax procedures, but also concerning other situations where a person was subjected to both administrative and criminal proceedings due to the same underlying action.
- HFD 2015 ref 20 – Revocation of weapons license
A man who had been convicted of assaulting his children in the home lost his weapons license after a decision by the Police authority. He appealed the decision and argued inter alia that his rights, according to art 4.1 of the 7th additional protocol to the ECHR and art 50 of the EU Charter of Fundamental Rights, not to be punished two times for the same crime (ne bis in idem) had been violated. The Supreme Administrative Court found that the Swedish procedure for revoking a weapons license was not to be regarded as punitive or as having a deterring effect. It aimed rather to make sure that only suitable persons would be allowed to own firearms. Since the procedure could not be regarded as being of a penal nature, the right to ne bis in idem was not applicable.
- HFD 2015 ref 31 – Revocation of driving license
A man’s driving license had been revoked by the Swedish Transport Agency due to him having been convicted to three years imprisonment for arson, and therefore he was not deemed to be suitable as a driver. He appealed the decision and argued inter alia that the revocation of his driving license violated his right not be punished twice for the same crime according to art 4.1 of the 7th additional protocol to the ECHR. Like in HFD 2015 ref 20, the main question that the Supreme Administrative Court considered was if the revocation could be regarded as a penal sanction. The Court found that the Swedish Transport Agency’s decision concerned the suitability of the man as a driver and that is was not aimed to punish or deter. Thus, it was not of a penal nature. Consequently, he had not been punished twice for the same crime. As a side note, it can be mentioned that the Supreme Administrative Court overruled the decision on the ground that it had not been shown that the man was unsuited to drive.
- HFD ref 37 – Re-trial regarding tax surcharge
In this case the Tax Agency had decided to impose tax surcharges on two individuals. Administrative courts confirmed these decisions. During the time of the procedures before the administrative courts, the persons were also charged with tax crimes (based on the same actions that had led to the tax surcharges) before general courts. Both persons were acquitted of the tax crimes. Several years later (after it had been established that the Swedish system that made it possible to impose tax surcharges and convict a person for tax crimes for the same action was in conflict with the prohibition of ne bis in idem in the ECHR) the persons made an application for a re-trial concerning the tax surcharges. The Supreme Administrative Court held that the persons’ right not to be tried twice for the same crime had been violated but that the violation occurred when they were charged with tax crimes, not when they were given tax surcharges, since the tax surcharges came first. There was thus no reason to give a re-trial concerning the tax surcharges. The Court added that potential questions regarding the ECHR right to an effective remedy should be tried in another procedure.
- NJA 2015 s 600 – Re-trial regarding tax crimes
The Swedish Tax Agency had imposed a tax surcharge on an individual for not filing his tax returns between 2007 and 2009. The decisions regarding 2007 and 2009 were revoked after the individual filed the tax returns at a later point. After this, the individual was convicted of tax crimes for not filing tax returns for the years 2007 and 2009 and for leaving false statements in his tax return for 2008. The State Prosecutor, supported by the individual, made an application for a re-trial due to the Swedish system of tax surcharges and tax crimes had been found in violation of the ECHR rule on ne bis in idem. Regarding the prosecutions concerning 2007 and 2009 the Supreme Court had to decide whether the fact that the Tax Agency had revoked the tax surcharges before the criminal trial had started was of any importance. The Court held that it was enough that the Tax Agency had made an initial decision to impose a tax surcharge to activate the prohibition of ne bis in idem. While the individual’s rights had been violated, the Court did not find that this was enough to order a re-trial since the violation was not serious enough because the tax surcharge had been revoked. However, since a re-trial should be ordered regarding the conviction concerning the 2008 tax return, a re-trial should also be ordered concerning the 2007 and 2009 tax returns since these were part of the same trial as the 2008 tax return. A re-trial of the complete criminal case was thus ordered, but since it was evident that such a re-trial would end in a dismissal of the prosecution, the Supreme Court changed the original judgment and dismissed the prosecution.
- NJA 2015 s 663 – Re-trial concerning tax crimes
A person had failed to disclose two types of incomes in his tax return, which led to tax surcharges being imposed and a conviction for tax crimes. He applied to the Supreme Court for a re-trial concerning the tax crimes. The Court granted a re-trial concerning one of the non-disclosed incomes but not the other. The reason for this was that regarding the other income the prosecution had come before the tax surcharge. In that situation it was thus the tax surcharge that had violated the prohibition of ne bis in idem.
- NJA 2015 s 587 – Driving under influence
The police had taken away a person’s driving license due to the suspicion that he had been driving under influence of alcohol. The Swedish Transport Agency decided to temporarily revoke the driving license. The driver was later prosecuted for driving under influence. The case eventually came to the Supreme Court, which had to decide whether the prosecution violated the prohibition on ne bis in idem since the driver already had been punished through the revocation of the driving license. The Supreme Court, relying on the case law of the ECtHR, found that there was a sufficient close connection in substance and in time between the revocation and the prosecution, leading to the conclusion that the two actions should be regarded as part of the same procedure and punishment.
- NJA 2015 s 417 – Compensation for violation of ne bis in idem
The Tax Agency had imposed a tax surcharge on a person who was later prosecuted for tax crimes for the same action as well as for other actions. The Supreme Court dismissed the parts of the prosecution that related to the same action that had lead to the tax surcharge. The case was then sent back to the Appellate Court where the person was convicted of the other tax crimes. The case was then once more appealed to the Supreme Court. One of the questions was if the defendant had a right to get his sentence reduced due to him having been tried twice for the same action. The Supreme Court held that the defendant had lost his victim status when the Supreme Court had dismissed the charges relating to the action that had already led to a tax surcharge. No additional compensation was thus required. The defendant did, however, get a reduced sentence as compensation for the unjustified length of the trial, which was found to violate art 6 of the ECHR.
C. Access to Official Documents and Free Speech
The cases presented in this section focus on access to official documents as protected by the Freedom of the Press Act (Tryckfrihetsförordningen TF), and Freedom of Speech and Information as protected by the Freedom of the Press Act and the Fundamental Law on Freedom of Expression (Yttrandefrihetsgrundlagen YGL). As a main rule all Swedish citizen shall be granted free access to official documents, TF 2:1. This right can only be restricted by law and for the reasons elaborated in TF 2:2. For the purpose of TF a document is any written or pictorial matter or recording which may be read, listened to, or otherwise comprehended using technical aids. A document is official if it is held by a public authority, and if it can be deemed to have been received or drawn up by such an authority, TF 2:3, 6-8. Every Swedish citizen is guaranteed the right vis-à-vis public institutions to publicly express his or her thoughts, opinions and sentiments, and in general to communicate information on any subject whatsoever on sound radio, television and certain similar transmissions, through public playback of material from a database, and in films, video recordings, sound recordings and other technical recordings according to YGL 1:1 para. 1. According to Swedish law it is not a violation of the freedom of speech to legislate against commercial information on radio or to regulate such information, 1:1 para. 2, 1:12 YGL.
- HFD 2015 ref. 4 – Access to official documents and information – electronic calendar
In this case concerning access to official documents the Supreme Administrative Court (Högsta förvaltningsdomstolen HFD) ruled on the question whether an electronic calendar was an official document to be made available to the public according to TF 2:3,6-7. According to TF a document is any written or pictorial matter or recording, which may be read, listened to or otherwise comprehended by using technical aids. A document is official if held by a public authority and if it is received or drawn up by a public authority, TF 2:3, 6-7. The legal question was whether the calendar was drawn up according to TF 2:7. The Student Paper that asked for access to the calendar claimed that the calendar was to be considered an electronic register, similar to email logs. The Supreme Administrative Court rejected the claim reaching the conclusion that an electronic calendar is not an official document since it has neither been dispatched, drawn up, nor finally checked and approved by the public authority, or otherwise received a final form. The Court also rejected the claim that the calendar was comparable to an electronic register in the meaning of TF 2:7 para. 2. p.1 since it can be changed afterwards, it is not systematized in chronological order, and it is not a register of subsequent events. Thus, the electronic calendar was not drawn up at the University and hence it was not an official document within the meaning of TF 2:1 to which the claimant had the right to access.
- HFD 2015 ref. 12 – Access to official documents – transfer of information within one agency
In another case concerning access to official documents the question was whether the Staff Disciplinary Board of the Prison and Probation Service (PPS) was independent enough for a document to be transferred between the two to be considered received or drawn up and hence an official document. According to TF 2:8 it is required that the two bodies are independent in relation to each other in order for a document to be considered as received. HFD found the Staff Disciplinary Board to be independent enough in relation to the PPS since the Board adopts final decisions in its own name and on its own responsibility, on behalf of the PPS. The head of the PPS does not hold a specific position within the Board; but is an equal peer with all the others. Thus, the majority of the HFD found the document to have been transferred between two independent entities and hence it was to be considered as received according to TF 2:6 and thereby an official document. Two dissenting opinions were issued.
- HFD 2015 ref. 25 – Level of service – access to official documents
In this case the Supreme Administrative Court dealt with the level of service that can be required in order to access official documents. The applicant requested access to social security numbers of all persons that emigrated from Sweden to Estonia, Latvia and Lithuania between 2009 and 2013. The question was whether this information could be considered held by a public authority (which is necessary for it to be an official document), in this case the Tax Agency. In order for the information to be considered held it needs to be available to the authority using technical aids which the authority itself employs for communication in such form that it may be read, listened to, or otherwise comprehended, and in cases of automatic data processing only if the authority can make it available using routine mean, TF 2:3 para. 2. It was estimated that four to six work hours and design of new software would be needed in order to compile the information. The HFD found that the information could not be compiled using routine means only and hence the information was not considered to be held by the Tax Agency within the meaning of TF 2:3.
- HFD 2015 ref. 57 – Name of parking guard – official information – exercise of public authority
The question was whether the name of a parking guard who issued a fine was official information to be made available to the applicant. When issuing a fine the parking guard exercised public authority mandated by public law, even if the company that the guard was working for was private. Since the guard was exercising public authority the same rule applies as would to a public agency proper. Moreover, to issue a fine is not an administrative task and the information could therefore not be considered as secret due to a provision on secrecy of administrative information. The HFD hence found in favour of the applicant and the name of the parking guard was considered to be official information. The Court found that a public servant cannot be anonymous when he or she exercises public power.
- HFD 2015 ref. 80 – Freedom of speech – commercial speech – unduly favour of commercial interests
The Supreme Administrative Court had to rule on whether it was a violation of free speech as protected by YGL 1:1 and ECHR art. 10 to lay a fine on a radio company that provided detailed information on how to buy tickets to an opera performance in a public, non-commercial, radio show. It is laid down in Swedish law that non-commercial radio programs are not allowed to unduly favour commercial interest. Any violation can result in a fine. Such a regulation is not in itself unconstitutional, YGL 1:12. To mention where and how tickets to an opera performance can be bought was by a majority of the HFD considered as unduly favouring a commercial interest even if the information was provided in a context describing and analysing the performance and history of the performance in questions. When assessing the size of the fine the HFD took into consideration the principle of proportionality as laid down in The Instrument of Government (Regeringsformen RF) 2:21. The court also referred to art. 10 ECHR. The court decided to give the association the lowest fine possible, mainly because the association already at two occasions had been found to have violated the rule of unduly favour, a third occasion was according to the court a sign of arrogance and hence a fine was decided even if the message was short and only reached a limited group of people. One dissenting opinion was issued.
- NJA 2105 s 298 – Constitutional review – confiscation of journalistic pictures
The Supreme Court had to decide whether it was constitutional to confiscate pictures taken by a journalist for journalistic purposes within a geographical area declared by law as protected area. According to the Protection Act (skyddslagen (2010:305)) access to a protected area or object, including taking pictures of that object from outside or inside, can be restricted. During a hunt for sub-marines in the Stockholm archipelago a journalist was found within a protected area and his pictures where confiscated. The journalist declared that he was a journalist and that the pictures were taken in order to be published in one of the largest Swedish newspapers Dagens Nyheter. The Supreme Court exercised constitutional review in order to determine whether the confiscation of the pictures was constitutional. It ruled that it was not, and as a result sat the application of art. 30 of the Protection Act aside, referring to RF 11:14. In this case the Court found a conflict between the right to procure information or intelligence on any matter for publication in print as long as it is not forbidden by TF, TF 1:1 para. 4, on the one hand, and art. 30 in the Protection Act which criminalizes taking pictures in a protected area or of a protected object, on the other hand. The Court argued that the Protection Act should be interpreted restrictively due to its interfering with the constitutional right to information and freedom of speech. TF and YGL are exclusive in relation to other laws meaning that any prohibition by law to collect information for the purpose of publication must be laid down in YGL or TF in order to be constitutional. The Protection Act is not mentioned in TF 7:3. This means that the confiscation can stand only if it is in congruence with TF 1:9 p. 5. Therefore the question was then whether TF 1:9 p. 5 was applicable, which the Court found it to be. According to this rule, illegal means to procure information is not protected by TF and taking pictures within a protected area is forbidden by art. 30 of the Protection Act. However, TF 1:9 p. 5 regulates only the means for procurement of information that is to be published (meaning that it is the means of procurement that do not enjoy constitutional protection), not the actual content, while art. 30 in the Protection Act criminalize taking pictures of a certain object – hence focusing on content. Therefore the Supreme Court found art. 30 of the Protection Act to be in violation with TF1:9 p. 5 and hence it had to be put aside in this particular case. The confiscation of the pictures was unconstitutional and lifted by the Supreme Court. This case confirms the general principle in Swedish constitutional law concerning the protection of free speech that rules focusing on content is in general considered a violation of the right to free speech, while rules focusing on means and procedures of procurement can be regulated by law without necessarily being unconstitutional.
- NJA 2015 s 45 – Means of procurement for journalistic purposes
In another case the matter of means of procurement was again to be decided by the Supreme Court. A journalist had bought an illegal weapon as part of investigative journalism, claiming that such actions were protected by the Freedom of Press Act 1:1 para. 4. The Court found that such procurement was not protected by the TF referring to TF 1:9 p. 5. The way (means) that the procurement took place was criminalized, i.e. to buy an illegal gun, and hence the procurement was not protected by the TF. It then moved on to answer the question whether the procurement was protected by the Instrument of Government 2:1, 21, 23 or art. 10 ECHR. After balancing the freedom of the press and freedom of information against the purpose behind gun laws the Court answered that question in the negative. It was not a constitutionally protected act to buy illegal weapons as part of investigative journalism. The journalists were found guilty of violating Swedish gun laws and sentenced to pay a fine.
- NJA 2015 s 166 – Protection of anonymity
The Chancellor of Justice had prosecuted a journalist, photographer and the editor of a newspaper for violation of the right to be anonymous when communicating information to be published. The Chancellor of Justice is the sole prosecutor in cases of violation of the freedom of the press. According to TF 1:1 para. 3 all persons shall be free to communicate information and intelligence on any subject, for the purpose of publication in print. The anonymity of individuals who have communicated such information is protected by TF 3:2 and any person involved in the production of printed media has a duty of confidentiality, TF 3:3. It is possible to give consent to not being anonymous, but without a valid consent the right to anonymity is absolute and it enters into force automatically. The right to anonymity is considered a corner stone of freedom of information and democracy. In this case the Court found a violation of the right to be anonymous. Consent had not been given. A picture had been taken -blurring out parts of the face – and the subject had agreed to publish it. However, the information in the article (the victim’s age) together with the picture (providing silhouette) led to the identity of the victim being revealed. The victim had not agreed to this and the journalist, photographer, and editor had acted negligent and was therefore sentenced to pay a fine for violation of the right to anonymity according to TF 3:3 and 5.
D. Procedural Rights
- HFD 2015 ref 6 – The definition of a court according to art 6 of the ECHR
This case concerned the question of whether The National Board of Appeal for Student Aid were to be considered a court according to art 6 of the ECHR; and if so, whether this could be the case also when the Director of the Board alone decides an application. The Supreme Administrative Court held that The National Board of Appeal for Student Aid had similar constitutional protection for its independence to that of courts, and that its organization and the procedure before it was laid down in law. It therefore complied with the ECHR’s standards for courts. The same conclusion was reached regarding the situation where the Board’s authority had been delegated to the Director of the Board. The Director was a former judge and there was nothing to suggest that there had been any conflict of interest that would question the Director’s ability to act impartially.
- HFD 2015 ref 73 – Right to appeal
A person had sent an application to the Tax Agency requesting to change her surname. After the decision had been approved, but before the time for appeal had elapsed, the person requested that her application should be withdrawn. The Tax Agency refused, arguing that it was too late to withdraw the decision, and that the applicant could not appeal the name change-decision since it had been in her favour. The question before the Supreme Administrative Court was if the Tax Agency’s initial decision should be regarded as favourable to the applicant even though she had regretted her application before the decision had entered into force. The Court found that in these situations, it should be considered that the decision has gone against the applicant, and therefore, that the applicant as a rule should be able to appeal the decision.
- HFD ref 79 – Effective remedy under EU law
Wolves were according to the Swedish hunting regulation and the EU Habitats Directive 92/43/EEC a protected species, and could as such only be hunted under specific circumstances. Decisions on wolf hunting were taken by the County Administrative Boards and could according to the Swedish hunting regulation only be appealed to Swedish Environmental Protection Agency, not administrative courts. Nonetheless, an environmental NGO appealed a hunting decision to an administrative court, arguing that prohibiting appeals to courts violated EU law, inter alia because it made effective judicial protection impossible. The Supreme Administrative Court found that the Habitats Directive put precise and unconditional demands on the Member States legislation on the hunting of protected species, but that it lacked procedural rules regarding the enforcement of the Directive. However, by relying on the CJEU’s case law (especially Case C- 240/09 The Slovakian Brown Bear) and TEU art 4.3 on loyal cooperation, TEU art 19.1 on effective legal protection and the Charter art 47.1 on the right to an effective remedy, the Supreme Administrative Court held that EU law demanded that environmental NGO’s should be able to pursue the rights in the Habitats Directive in the Member States courts. The prohibition in the Swedish hunting regulation on appeals to administrative courts should therefore not be applied in cases concerning the Habitats Directive.
E. Consent to Medical Treatment, Compulsory Care, and Rights of Children
- HFD 2015 ref 5 – Providing children pharmaceutics without prior consent of both parents – best interest of the child
In this case, a father had appealed a Social Board’s decision to decide that his son, following the wish of the mother, should have a certain medication. The Board had two evaluations from medical doctors that supported the decision; one of these doctors had not met the child in question. The father appealed the decision and stated that the investigation had not been thorough enough. The Supreme Administrative Court underlined that the diagnosis of the child was not questioned, but that the parents disagreed as to the chosen treatment. The father objected firmly to medication and stated, contrary to the mother’s opinion, that it did not help the child. The Court said that thorough investigations should have been done and the father’s opinion should have given reason for the responsible board to ask for more information from the medical doctors investigating the child’s health.
The legal basis for the Board’s decision was Chapter 6 Article 13 a of the Parental Act stating that a decision must take the best interest of the child into account as well as the practical arrangements for succeeding in realizing the decision. The planned measure is accordingly important and when a child lives together with both parents, alternating residence, lack of continuity can be a problem. Rule of law considerations demand for a decision to be written in a clear and precise way so that all parties concerned understand the decision and can implement it. This is even more crucial when the decision concerns a matter of consent to medical treatment. The Supreme Administrative Court concluded accordingly that it was not shown that the child had an immediate need to retake the medication. The requirements of the Parental Act (Chapter 6 Article 13 a) were accordingly not fulfilled and the father’s appeal was approved.
- HFD 2015 ref 27 – Compulsory care and the interpretation of the Care of young Persons Act
For young persons to be the object for compulsory treatment under the Care of young Persons Act, certain conditions must be met. In this case, a Social Board had decided to order compulsory care for two children referring to the criterion of “factors relating to the living situation in the household” referring to Article 2 in the Care of young Persons Act. In its previous case law, the Supreme Administrative Court has stated that threats from one parent to another are not reason enough for ordering care under the mentioned Act, not even when the parents are divorced and have a restraining order. The Court has underlined that the Act is only intended to protect the young persons and should not be used as a means to protect the parents against each other or as a tool in achieving other results than those listed in the Act. In the present case, the decision to immediately trigger the compulsory care of the children also meant that the possibility to keep secret where the children were living was applicable. The Court was very critical to this as the children did not have any need for compulsory care and repealed the earlier rulings in the case.
- HFD 2015 ref 7 – Compulsory care and the interpretation of the Care of young Persons Act
According to Article 3 Care of the young Persons Act, a decision of care should be taken if the young person is jeopardizing his health or development through a substantial risk of harm due to drugs, crime or other socially destructive behaviour. When this is the case, and it can be stated that necessary care cannot be given with consent from the young person or his guardians, following Article 1 of the Act a decision of compulsory care should be taken. The Supreme Administrative Court had to interpret these Articles in an appeal by the young person N who objected to a decision limiting her freedom of communication and movement as she stayed in a care home. The Court underlined that the application of these rules should not exceed what is a reasonable interpretation of Article 3. The mere fact that the young person is taking chances and exposes herself to risks does not mean that a socially destructive behaviour in the meaning of the Act is a fact. The Court concluded that there was no grounds for deciding on compulsory care in line with Article 3 for N and ruled in favour of the appeal.
- HFD 2015 ref 42 – Compulsory care and the interpretation of the Care of young Persons Act
A young person 17 years old, did not treat his serious diabetes but was not considered as showing a socially destructive behaviour that would lead to compulsory care according to the Care of young Persons Act. Compulsory care can include that a young person is placed in a special youth house where the person responsible for the medical care has the authority to decide the limitations of the young person’s freedom to move and right to integrity. As these are severe constraints of his freedoms and rights, the Court underlines that the applicable Article should not be interpreted too extensively beyond its literal meaning. The mere fact that the young person is exposing himself to a risk does not mean that a socially destructive behaviour is at stake. In this case, the young person C was mistreating his diabetes, not taking the ordinated medication. Accordingly, he is exposing his health to risks that potentially could be life threatening. The Court could, however, not see how that would be a “socially destructive behaviour” according to Article 3 of the Care of young Persons Act nor did the Court find any support for that in the preparatory works. The Court ruled in favour of C and upheld the rulings from the lower courts.
- HFD 2015 ref 64 – Conditions for compulsory outpatient psychiatric care
In this case, a patient (M) had been ordered closed psychiatric care following the Act on Psychiatric care. After a couple of months, the closed psychiatric care was changed to compulsory outpatient psychiatric care. M objected to letting the compulsory outpatient psychiatric care continue. She stated that she did not have any serious psychiatric illness and there was no need to give her any care, conditions that should be met according to the Act. The medication given to her did not change anything. The Chief physician asked the Court to order that the treatment would continue. Compulsory outpatient psychiatric care is not really intended to include any kind of force, which means that the criteria in the Act should be restrictively interpreted in relation to outpatient care. The Court stated that the Act is applicable to M’s situation as she has a serious psychiatric illness regulated in Article 3 of the Act. The Court stressed the importance of assessing the patient’s whole situation and carefully measuring the proportionality of the care regarding the intrusion in the autonomy and integrity of the patient. As it was shown that M was lacking capacity to fully understand her illness and had done so for many years, the Court turned down M’s appeal.