Strasbourg, 12 February 2001
CCJE (2001) 16
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Sweden
I. THE INDEPENDENCE OF JUDGES
1. Is the independence of judges guaranteed by Constitution or by legislation?
2. What institutional safeguards are there with regard to the independence of judges?
As mentioned in the introductory note the constitutional rules concerning the independence of judges are to be found mainly in Chapter 11 of the Instrument of Government
As indicated in that note the rules on the independence of the courts in Chapter 11 are not to be seen as true expressions of any idea of separation of powers in the traditional sense. On the other hand, the independence of the public authorities and the administration in relation to the Government is comparatively great, also in an international perspective.
In Chapter 11, Article 2 we find the very important principle that no public authority, including the Parliament, may determine how a court shall adjudicate or apply a legal rule in a particular case. Thus, the independence of the courts and the legal system as such seems to be reasonably well provided for.
In particular if Article 7 is also considered, since the same kind of independence is there guaranteed for administrative authorities (of which a majority are subordinate to the Government). This means that ministers may not instruct the authorities on how to handle specific issues and, on the other hand, those ministers may not be held responsible for mistakes made by those authorities. When the Minister of Justice had to resign in 1988, it was be-cause she had interfered illegally with the investigation into the murder of the former Prime Minister Olof Palme.
Furthermore according to Article 8 no judicial or administrative function may be performed by the Parliament to any further extent than provided for by the Instrument of Government or the Riksdag Act (which regulates the internal work and inner life of the parliament); in reality, this means that laws may never formally concern only individual subjects, natural or legal.
Chapter 11, Article 4 state the condition that legal disputes between private subjects may only be settled by courts unless otherwise provided for by law. Such laws concerning e.g. private arbitration exist, naturally.
3. Is the irremovability of judges recognised?
As far as the independence of the courts is concerned, it can be mentioned that a person appointed to a regular, permanent post as a judge may be removed from office only if he has committed serious crimes or repeatedly neglected his duties and thereby shown himself manifestly unfit to hold the office or if he has reached the age of retirement. Should the decision to remove the judge from his office have been made by another authority than
a court (in practice National Disciplinary Offence Board), the judge concerned may call upon a court to review that decision. If the same kind of situation should occur concerning a judge from
one of the two highest courts, the matter shall be tried by the Supreme Court after proceedings have been initiated by the Parliamentary Ombudsman or the Chancellor of Justice. Still, protests are sometimes heard from judges and their organisations that this guarantee is not sufficient in order to really protect the independence of the judiciary. An idea could perhaps be to allow such removals from office only after a thorough review by a court (except of course in pure retirement cases).
4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeals or cassation?
Concerning judicial review, it may first of all be said that certain possibilities for review in extraordinary cases (which are then decided by the highest courts), as well as a possibility for the Government to issue clemency (mercy) and pardon certain criminal acts, or reduce the sanctions, exist according to Articles 11-13. There is even a possibility for the Government, in exceptional circumstances, to order that no further action be taken to investigate or prosecute a criminal act (abolition), but this has not been used since the 1960’s (concerning the then illegal, organised, so called abortion trips to Poland).
However, the more important and controversial general rule on judicial review by the courts is to be found in Chapter 11, Article 14. According to this rule, should a court or any other public body find that a provision conflicts with a constitutional rule or another provision of a superior statute, or that procedure prescribed for its enactment was set aside in any important respect when that provision was introduced, the provision must not be applied. So far, so good, although it may be observed that this competence can be exercised not only by the courts but also by other public authorities, which may seem rather strange, since it probably means that the authority of the courts in those kind of matters is reduced. Still, what is more controversial is the second condition of this statute, which reads that provisions adopted by Parliament or the Government, i.e. Acts of Parliament and government ordinances, may be set aside only if the error, i.e. the incompatibility with a constitutional or otherwise superior provision is “manifest”. This requirement of manifest error is undoubtedly one of the most controversial parts of the Swedish Constitution, since critics mean that it tends to make the courts, including the highest instances, excessively subordinated to the legislator and to the political bodies, a problem which is sometimes said to be sharpened by the fact that the judges of those two courts are mainly recruited among the legal experts from the ministries. Regardless of the validity of this argument, it must be observed that Swedish courts have in general been very cautious in terms of exercising the right to judicial review that they actually possess under this Article.
Note; the summary text in the answers to question number 1 - 4 are all from the article by Negrelius mentioned in the introductory note.
5. Can a case be withdrawn from a judge? if so,
i. on what grounds?
ii. by which authority?
The answer is no. First of all the constitution forbids the establishment of a court to try an offence already committed, or for a particular dispute or otherwise for a particular case (Instrument of Government Ch. 2 Art. 11. Secondly there is a prohibition in the constitution against any intervention from Parliament, the Government or any other public authority in a particular case in the courts (Ch 11 art. 2.). One exception is however abolition (Ch 11 art. 13 in fine).
Within the judiciary
Case-management is always dealt with in the single court. There are no possibilities for a superior court to intervene in this matter.
Within the single court
There are no provisions in the code of judicial procedure dealing with the question. In the governmental instructions for the courts there are stipulations on how to distribute the cases on the single judges in the court. Every judge shall have his own caseload and can be released from this duty only after a decision of the chief justice and for a certain period of time. The sensitive question is may the chief judge decide to withdraw a case from a single judge? In principle the answer is no. In the Swedish judicial doctrine the provision in the constitution (11 kap. 2 §) is understood also as a prohibition directed even against the chief justice to intervene. So the chief justice has no right to withdraw a case against the will of the single judge. This principle has been upheld by an authority supervising the Judiciary, namely the Chancellor of Justice. This was done in a disciplinary case in 1996. The Chancellors critical decision in the case was presented in public.
Of course in practice there is a possibility for a chief justice and a single judge - under a mutual agreement - to discuss the matter, for example if the single judge has a very heavy workload or if he is ill. So they may agree upon a withdrawal of a single case and a redistribution of it. But usually such discussions are held on a more general level. The discussion use to deal with the problems of the judge’s workload as a whole and is not concentrated on a singe case. The discussion may end with an agreement that for example ten cases ought to be redistributed. This redistribution is then done randomly.
In 2000 a committee dealing with questions among others on court management proposed that the principles for case allocation and redistibution should be based on provisions of law. The main rule should be a system based on random selection combined with scope for special case destination in accordance with objective criteria. The basis for the allocation of cases should be specified by the rules of procedure for the court.
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. What qualifications are required and what conditions must be met in order to become
2. Are judges recruited by competitive examination, on basis of a professional examination or
on basis of their qualifications?
3. What level of studies is required to become a judge?
4. Is previous professional experience required?
5. Are there any age requirement
6. Are judges elected?
7. Or are they appointed?
8. Or are they selected in another way?
11. How and by whom are judges promoted?
12. What are the criteria for promoting judges? Are they objectively defined?
Judges who upheld permanent regular posts are all appointed by the government. Only Swedish citizens may be appointed as judges. When such appointments are made, attention must be given only to objective factors such as merit and competence of the candidates.
The general courts and the general administrative courts also employ non-permanent judges and other civil servants with legal training. Most of them are at some stage in their judicial career. After normally four and a half year’s of studies at a university, the student takes the degree of Master of Law (L.L.M.). Many of these law graduates are subently taken into service as district court clerks (recording officers) or county administrative court clerks at a district court or county administrative court
These services are linited to a period of two years. Since the degree of LL.M. is purely academic, service as court clerk constitutes a vital practical supplement to theoretical studies. This training is undertaken irrespective of the area of law in which the court clerk intends to specialise at some time in the future. The court clerk assists the ordinary judges in various respects. Towards the end of their term of service, they are also competent to adjudicate in more straightforward cases. On completion of their articled service, a number of the court clerks subsequently apply to become trainee judges at a court of appeal or administrative court of appeal. Those admitted are employed on a period twelve months. The applicant may then qualify to be employed as a Court of Appeal Reporting Clerk or Administrative Court of Appeal Reporting Clerk Service in the
court of appeal and administrative court of appeal prinry consists of the preparation and presentation of cases. The Reporting Clerk may then serve for a nuruber of years at a district court or county administrative court and is then conpetert to deal with all cases apart from the most coruplicated.
After a period of probation in the court of appeal or administrative court of appeal lasting about nine months, during which time the Reporting Clerk is co-opted onto the bench. The Reporting Clerk may then be approved as Associate Judge of Appeal or Associate Judge of Administrative Appeal. An Associate Judge may also serve as non-permanent judge at a district court or county administrative court. The Associate Judge may also act as briefing presenter in the Supreme Court or Supreme Administrative Court. However; it is not unusual for an Associate Appeal Court Judge to serve outside of the court, for example as legal advisor in a department of state or as permanent secretary to a Government committee of enquiry. After six to eight years the Associate Judge may be short-listed for regular service as permanent Judge, Judge of Appeal or Administrative Court of Appeal Judge.
Most appointed permanent judges presiding in different courts have followed the career described above but they may also be recruited from other professions such as lawyers and public prosecutors?.
Beside professional judges many cases in both the general courts and the administrative court are tried together with elected layman representing different political parties.
13. In what cases can a judge be removed from office?
See the answer under I:3.
14. Do you wish to make any comment or mention any practical difficulties with regard to the
independence and appointment of judges in your country?
III. THE FUNDING OF THE COURTS
1. How are the courts’ activities funded
Every autumn every court presents its proposals for the needs for funding for the three next years to come. These proposals are presented to the National Courts Administration (NCA). After a dialogue with the different courts the NCA in early spring presents its proposal for the three next coming years to the Ministry of Justice.
The Government submits proposals for a national budget to Parliament, one more general in April and one more specific in September. The bills are presented every year for the three next coming years. In the September-bill the results in figures of the Judiciary and its different parts
and courts is presented and analysed. The Government may also present certain priorities or planned reforms for the Judiciary. There is a proposal for an over all sum for the whole Judiciary for the next coming year.
Parliament decides on the annual budget for the next year and on a more provisional base for the two years thereafter in December every year. In its decision Parliament has specified the amount designated for the Judiciary as a whole. The Judicial Committee of Parliament has prepared this decision.
The Government decides, in Cabinet after preparations in the Ministry of judicial affairs, in December to instruct the NCA to distribute the total amount on the different branches of the Judiciary. The NCA decides on how to distribute the budget to every single court. Before this decision is taken, every court has the possibility to comment on the proposal for the funding of the Agency. Every court gets its own budget, which is administered, by the court itself.
The NCA is a governmental body. It can not be said to be a part of the Judiciary. However a minority (four judges) of the members of the Board of the NCA may be said to represent the Judiciary but only in an informal way. The board members are appointed by the Cabinet.
2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
See question 1.
3. Do judges have a say whatsoever in decisions concerning funding or in managing the budget?
Every court has to present an annual economic plan for the next three years. The plan is prepared by the chief justice of the court and decided by all the judges of the court or by a board of judges. This board consists of the chief judge and certain judges of the court. The chief judge of the court will also have a possibility to give his comments on the proposal for the funding presented by the NCA. The chief judge presents a proposal on how to manage the internal budget for the court. The board of judges, or all the judges of the court, decides annually on how to use the budget for different purposes. However most part of the budget is automatically designed for salaries for judges, clerks etc.
4. Do judges have adequate support staff and equipment, in particular office automation and dataprocessing facilities, to ensure that they can act efficiently and without undue delay?
Support staff: The judiciary is undergoing several changes just now and there are different opinions on whether specific courts get enough funding to keep an efficient support staff or not. The situation and the attitudes may differ from court to court.
Office automation and dataprocessing facilities
This is administered by the NCA. The facilities seems to be of good quality in an international comparison. The dialogue with the courts on these matters is now developing quiet good and new dataprocessing systems are under way.
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
No, no material difficulties in general. The problems of the courts have to do with the workloads and the workloads differ from year to year and from court to court. These problems are classical and they are connected with planning and management of the system of the Judiciary as a whole and the funding system for which Parliament and the Government are responsible. Of course the single judge, within such a system, now and then may encounter a lot of specific difficulties in his work.
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
A lot of such measures have been taken during the last 25 years. Law clerks assist the judges with judicial tasks and assistants assist with the non-judicial tasks. The assistants get in-house education designated by the court itself or by NCA.
7. General comments on the funding of courts