Strasbourg, 5 May 2004
CCJE (2004) 27
Consultative Council of European Judges (CCJE)
Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Sweden
A. ACCESS TO JUSTICE
The Swedish Parliament has for a number of years produced The Citizen’s Guide with information about the Swedish society. The Citizen’s Guide includes a section on the court system and is available as a book and on the Web. (www.samhallsguiden.riksdagen.se)
The Ministry of Justice has produced various fact sheets containing information about the Swedish Judiciary in general as well as about specific laws. This information is available both in writing and on the Web. (www.regeringen.se)
The National Courts Administration has produced a variety of fact sheets on different aspects of the functioning of the judicial system. The Information Secretariat of the National Courts Administration also produces brochures, web pages, newspapers and other information material such as a movie describing a trial, especially intended for educational use in the schools. (www.dom.se)
Also, some of the Swedish Courts have produced their own websites with various useful facts on the courts.
Furthermore, information of the functioning of the Swedish judicial system can be obtained from the website of the European Judicial Network. The network consists of representatives of the European Union Member States’ judicial and administrative authorities. The main objective of the network is to make life easier for people facing litigation of whatever kind where there is a transnational element – i.e. where it involves more than one Member State. Contact point for the Swedish part of the network is the Ministry of Justice. (www.europa.eu.int/comm/justice_home/ejn/index_sv.htm)
We cannot provide any information on the impact of the aforementioned actions on the amount of cases brought before the Swedish Courts.
There is no requirement for special forms to be used for bringing court actions. However a form, DV 161, has been produced for summons applications. The form can be found on the National Courts Administration's website. (www.dom.se) If an application is incomplete, the court will ask for supplementary information. Only if the supplementary information is not provided, the application will be rejected.
Private individuals are allowed to conduct their own case in court. It is therefore not compulsory to have a legal representative or a solicitor in Sweden. Nor do solicitors have a monopoly in the sense that counsel or assistant counsel must be a lawyer.
Both are governed by the Legal Aid Act (1996:1619).
a) eligibility requirements
Everybody - natural persons, associations, companies etc. – can get legal advice in all legal matters.
Legal advice can be provided by a lawyer or junior barrister at a lawyer's office. Up to two hours' legal advice can be provided and it may be split into several sessions. There is a charge for legal advice, currently SEK 1 250 (approximately € 130). A person obtaining the advice who has insufficient financial resources may get this charge reduced by half. If the person obtaining the advice is a child, he or she does not usually need to pay any fee. If the fee is reduced, the lawyer will receive the balance from the state.
Legal aid is only available to natural persons, i.e. companies, associations, etc., are not eligible. Estates of deceased persons, however, do qualify for legal aid in certain circumstances. Nationals of all EU Member States have the same rights to legal aid as Swedish citizens.
Legal aid can be granted in most legal matters, but there are some exemptions. It cannot, for example, be granted in matters where a Public Defence Counsel or a Public Counsel may be appointed. If you have been the victim of a crime in some cases a "counsel for injured parties" may be appointed (see the Counsel for Injured Parties Act 1988:609). Legal representation of this kind is completely free of charge. One of the tasks of the counsel for injured parties is to help you to bring a civil action in connection with the crime, e.g. a claim for damages. If a counsel for injured parties has been appointed for you, you cannot also be granted legal aid.
In some cases there have to be special grounds for legal aid to be granted - for example, proceedings taking place abroad or cases where the value of the claim is clearly not going to exceed SEK 18 950 (approximately € 1195).
To qualify for legal aid you must meet certain conditions:
· You must have received at least an hour's legal advice.
· Your income must not exceed a financial threshold, currently set at SEK 260 000 (approximately € 27 375). When the applicant’s income is estimated, his/her economic situation as a whole is taken into account, for example, any child maintenance expenses, property or debts.
· You must need the help of a lawyer over and above the legal advice provided and it must not be possible to meet this need in any other way.
· Depending on the nature and significance of the case, the value of the object in dispute and the overall circumstances, it may also be considered reasonable for the state to contribute to the costs.
· If you have - or should have had - legal protection insurance this will be used first.
b) identification of authorities to grant the aid
Requests for legal aid should be sent to the court or authority responsible for examining your application. If the case or matters of relevance to the judicial proceedings are to be heard in court, it is the court which must examine your request for legal aid. Otherwise it is the Legal Aid Authority which decides whether legal aid will be granted or not.
c) budgetary arrangements
Once legal aid has been granted the state pays the following costs:
· Legal aid counsel's fees up to a maximum of 100 hours, unless the court decides otherwise.
· Reasonable costs for submitting evidence in a general court, the Labour Court and the Commercial Court.
· Costs of an investigation which is reasonably required to safeguard your rights, up to a maximum of SEK 10 000 (approximately € 1 053).
· The cost of mediation in accordance with Section 17 of Chapter 42 of the Code of Judicial Procedure.
· Application and handling charges and the cost of enforcement.
If you are granted legal aid you will have to contribute to the costs via a legal aid charge. This charge is made up of a percentage of the cost of your legal aid counsel. The system of charges is made up of six levels, depending on your income; these are expressed in fixed income brackets. The percentages for the various brackets range from 2% to 40%. The income bracket in which you are placed, and therefore what percentage you must pay, is decided on the basis of your financial situation. Your annual income, maintenance liabilities and assets are used to calculate your economic basis. You have to pay the legal aid charge continuously to your legal aid counsel as the costs are incurred.
a) No such measures
b) No such measures
c) No fixed costs. In small claims, however, the loosing party only has to bear the winning party’s costs to a limited amount, notwithstanding the amount the loosing party has spent on lawyers.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
Yes, measures have been taken to relieve judges from non-judicial tasks. There is a continuous work going on to identify tasks that could be assigned to other persons or bodies in or outside the courts. There are also tasks already entrusted to administrative court staff.
Appendix to Recommendation No. R (86) 12
Examples of non-judicial tasks of which judges in some states could be relieved
according to the particular circumstances of each country
NO means that the task is not a judge’s task
YES means that the task still is a judge’s task
Celebration of marriage Yes
Establishment of family property agreements No
Dispensing with the publication of marriage bans Yes
Authorising one spouse to represent the other:
replacing the consent of the spouse prevented from giving consent Yes
Change of family name-change of first name No
Recognition of paternity No
Administration of the property of those lacking legal capacity No
Appointment of a legal representative for legally
incapacitated adults and for absent persons No
Approval of acquisition of property by legal persons ?
Supervision of traders' books of account No
Commercial registers: No
ships, boats and aircraft
Granting of licences for the exercise of commercial activities No
Judicial intervention in elections and referenda other
than provided for in the Constitution No
Appointment of a judge as chairman or member of committees
in which his presence is merely required to strengthen the committee's
Collection of taxes and customs duties No
Collection of judicial fees Yes
Acting as a notary public Yes
Measures relating to estates of deceased persons No
Civil status documents and registers No
Land registry (control over registration of transfer of property,
of charges over immovable property... ) Yes
Appointment of arbitrators when such appointment is
required by law No
Most of the following information is gathered from the website of The National Tax Board (www.skatteverket.se) and from a description of the summary procedure written by Rosemary Forsyth of The National Tax Board.
Sweden has a special system of so called summary procedure to facilitate for creditors to recover their claims swiftly. The term summary procedure has for a long time been used in Sweden for cases concerning the dunning procedure or for cases concerning applications for assistance. Previous to 1992 the summary procedure was solely handled by the civil courts. The procedure was, but for some exceptions, administered in writing. Through the summary procedure an applicant was provided a quick, inexpensive and simple means for confirming a claim which was not contentious. With the judgement received the applicant could make an application to the Enforcement Authority to request the execution of his claim.
Since 1992 the summary procedure has been transferred from the district courts and is now handled by the Swedish Enforcement Authority. Also the procedure has changed to the extent that it is now handled with advanced computer support. This measure was in accordance with the efforts of the legislator to find ways to relieve the courts from cases which did not include settling disputes. The objective of this measure was not only to achieve a better use of the resources of the courts and to reduce delays in legal procedure of all cases in the courts, but also through the assistance of computer support a more efficient and rapid summary procedure.
The National Tax Board constitutes the national superior authority for the enforcement authorities. The National Tax Board has therefore a principal responsibility for the enforcement of both public and private claims, for compulsory sales, summary procedure and for the supervision of bankruptcy and debt relief.
Unlike the summary procedures of many other countries there are no limitations related to a maximum amount requested by the applicant. In principle, the aim of the summary procedure is only to examine whether the defendant has any objections against the applicant´s claim. Should that not be the case, the application may be granted in a ruling. The ruling is a writ of execution which will be executed automatically by the Enforcement Authority. Should, however, the defendant contest the application, the Enforcement Authority is not entitled to try the case, but must submit the dispute to the district court for trail within the scope of the ordinary civil proceedings, for instance if the applicant wish to pursue his claim.
The Enforcement Authority is not a court and has no dispute settling functions. The summary procedure does not include the settling of disputes, but serves only to confirm claims which are not contentious. It is a convenient way for judicial recovery of debts. The average time for handling 80 percent of all cases is shorter than three months.
The impact of the availability of this procedure on the amount of cases brought before the courts is difficult to estimate. However, it is probably quite big. The number of applications in the summary procedure system amounts every year to around 700 000. Of these applications, only approximately 20 000 are for one reason or another brought before the courts.
A regular review of the courts workload is made continuously and annual by the Swedish National Court Administration (SNCA) for all courts in Sweden. If, for example, the average turnaround time for cases or the number of pending cases is increasing rapidly, the consequent measure for SNCA may be to strengthen the financial resources for the court temporary or more permanent.
It is also a responsibility for every court in Sweden to elaborate its workload and performance in order to look for deficiencies and needs for changes in the own organisation. The court could use different measures such as reallocating the workload between judges or other staff and change procedures for better performance. If the court does not have authority to decide on a measure for making things better the court has a responsibility to make a request to SNCA for example to get more financial resources or more permanent judges.
For the reviewing purposes in the Ministry of Justice SNCA elaborates an annual report for the whole judiciary.
Judges roles in management of judicial infrastructure
All decisions connected to the judicial infrastructure are taken by the government. The courts usually give their input to the government in advance of all final decisions.
Judges roles in management of human resources
The courts handle all employment of staff except employment of judges and court clerks. Judges are appointed by the government and court clerks are employed by the National Courts Administration and then placed at the courts. Most senior judges have staff responsibility. The meaning of staff responsibility could vary a lot from court to court due to different working procedures. These differences include recruitment, salary setting, personal development, etc. The chief judge has the over all responsibility for human resources within the court.
Judges roles in management of information and technology equipment
The chief judge has the overall responsibility for the information and technology equipment within the court. However all strategic IT decisions are handled centrally by the National Courts Administration in cooperation with the courts. Almost all courts have locally employed IT staff to run the daily support at the court.
Training in management techniques
The National Courts Administration has during the last years invested in giving as many chief and senior judges as possible the chance of attending different management and leadership programs. The programs have covered subjects such as management techniques, personal leadership, change management, conflict handling, feed-back, organizational cultures and diversity.
Role of the administrative top officials
The setup of the administrative organization could vary from court to court due to differences in size and different needs of support due to variations in administrative competence within the court. The role of the administration is to assist the chief judge with economy, HR, IT, archives, libraries, stationary, etc. There is a strive within the court organization to further strengthen the administrative organization in order to make the courts more independent and decrease the need from centralized administration from the National Courts Administration.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
There is not – yet – any system in operation in Sweden having the aim of assessing quality of judicial activity. However, work has begun to develop such a system.
The computerised case handling systems in the courts are used for collecting statistical data. Besides case statistics also personnel statistics is used.
(i) Every court has possibility to process the statistical data concerning the court in order to compile different kinds of statistical tables for own analyses. SNCA has a corresponding responsibility for the judiciary as a whole.
(ii) Most of the data collection is concentrated on the different events in the cases
(iii) In Sweden statistical data are not used for professional evaluation of judges
(iv) Statistical data could be used in Sweden for an evaluation of the performance of a court but not for evaluation of a chief judge.
In order not to interfere with the principle of the courts independence the Swedish system is to a high extent oriented against “self-correction” by the courts. By giving the courts statistical and other means for reviewing, the courts have possibility to review its own activity and compare with statistics from other courts. The Government has decided on some aims for the courts. These aims are concentrated on reasonable duration of proceedings and a reasonable number of pending cases. The outcome for each court is published. Different means for better performance in the judiciary are discussed on seminars with chief judges.
The SNCA is a national agency under the Ministry of Justice. There are provisions stating that the SNCA has the obligation not to interfere in any way that may threaten the independence of judges and courts. There is an undergoing dialogue in these matters between the SNCA and the chief judges individually or collectively in seminars.
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
The National Board for Consumer Complaints tries disputes between consumers and suppliers of different kinds of goods and services such as clothes, household machines, dry-cleaning, financial services, insurances and package tours. The Board’s decisions are drawn up as recommendations and are not legally binding. It is not possible to appeal against the Board’s decisions. However, nothing prevents the parties from bringing the case to a court. The State bears the costs of the Board, but the parties have to bear their own costs.
In each municipality there is a public office for family counselling and mediation, which in cases of separation or divorce assists the parents in reaching an agreement concerning custody, place of residence and access to the child. The office has no authority to render any compulsory decision in the matter. Thus the outcome of the mediation cannot be appealed. The municipality bears the costs of the office, but the parties have to bear their own costs.
There is a possibility of mediation and reconciliation in criminal cases. Mediation is based on the parties’ voluntary participation and laymen conduct mediation. The purpose is to lessen the negative consequences of the crime for both the offender and the aggrieved party. The objective is to be attained by allowing the offender and the aggrieved party to meet and to reach a written agreement with some kind of settlement. The State or the municipality bears the costs of the mediation.
In all regions of the country there are Boards for Tenancy and Other Rights of Use that try disputes between e.g. real estate owners and tenants. There is the possibility of mediation by the Board. Most of the Board’s decisions can be appealed to the Court of appeal. The State bears the costs of the Board, but the parties have to bear their own costs.
The National Mediation Office is an agency for central government activities in the mediation field. Its principal task is to mediate in disputes between the parties in the labour market during the bargaining over pay and terms of employment. Mediators may be appointed at the request of the parties concerned but may also be compulsory if one of the parties has given notice of industrial action. The State bears the costs of the agency, but the parties have to bear their own costs.
There is a Board for Employees’ Rights of Inventions that mediates disputes between employers and employees concerning the rights of inventions. The State bears the costs of the Board, but the parties have to bear their own costs.
The Mediation Institute of the Stockholm Chamber of Commerce offers mediation. The mediation process is voluntary and the parties bear the costs.
In cases where a juridical person has not paid its taxes it is possible for the National Tax Board to claim the taxes from a deputy of the juridical person. In such a situation the deputy and the Board have the possibility to settle the dispute by an agreement out-of-court, even if the case has been brought to a court.
The parties are in many cases offered in-court ADR, see below.
There are such provisions regarding the public ADR schemes.
Legal aid is in general not applicable to ADR procedures.
There are no general rules protecting confidentiality in mediation processes. In some cases confidentiality is protected by other rules or internal guidelines of the entity conducting the mediation. The latter is the case of the mediation of the Stockholm Chamber of Commerce.
Yes, if the losing party in the court proceedings is considered to intentionally or negligently have caused unnecessary litigation.
b) in-court ADR
According to the Swedish Code of Judicial Procedure an objective during the preparation of a case is to elucidate the possibilities for a settlement. Furthermore the court shall to the extent appropriate considering the nature of the case and other circumstances, work for the parties to reach a settlement. The judge may himself take a rather active part as a mediator or conciliator, but not to the extent that he jeopardizes his impartiality. The parties do not have to bear the costs of the judge’s mediation, but have to bear their own costs.
If, considering the nature of the case, it is more appropriate that special mediation occur, the court can direct the parties to appear at a mediation session before a mediator appointed by the court. Even though the consent of the parties is not necessary in theory it probably is in practice. The parties have to bear the costs of the special mediator.
There are no special provisions regarding the qualifications, training etc. of the mediator. Common procedure however is to appoint as a mediator an external judge or a former judge. If the matters of the dispute are highly technical the court may rather appoint an expert on the matter. The mediator does not incur any special responsibilities. The independence of the mediator is mainly guaranteed through the process of appointment. The parties have no veto against a person suggested as a mediator, but their opinion on the candidate carries a great weight. The equality among the parties is not guaranteed by any special provisions, but it should be an objective for the mediator in his work. If an agreement is unfair to the extent of being unduly, the party to whose detriment it is may claim for an adjustment of the agreement.
If the parties demand a judgement that confirm their settlement then the settlement has the force of res judicata and may be enforced. However, if the parties do not demand such a judgment then the settlement cannot be enforced but is considered only as a contract between the parties.
c) out-of-court ADR
If the ADR proceedings have involved a public body of some kind then that public body is under the supervision of the Parliamentary Ombudsmen and the Chancellor of Justice in Sweden. Many of the ADR agreements are not legally binding, but decisions by the Board for Tenancy and Other Rights of Use may be appealed and other agreements may be adjusted by court if found unduly.
d) ADR in administrative law disputes
As mentioned above ADR is very seldom to be find as a regulated and formalised mandatory part of the Swedish legal system. In fact there is only in labour disputes that there is a mediation agency that is founded by law. Of course when there is an opportunity do so even when administrative law disputes are at stake often in many cases, where the parties has an decisive saying in the outcome of the dispute, investigations are made out to se if the disputes can be settled in a friendly way and the case can then withdrawn if the parties agreed to honour their voluntary agreement.
In what is defined as administrative disputes, which means disputes that ultimately can be tried before an administrative court, there is however more or less regulated out of court ADR-procedures in a few cases.
In disputes between parties in connection with electronic communications networks and services there is a possibility by law for the regulatory authority to decline to resolve a dispute through a binding decision and instead point out for the parties a mediation procedure (see law (2003:390) concerning electronic networks and services).
In cases concerning public procurement in areas concerning water, energy, transport and telecommunication there is also a mediation procedure for the parties at the European Commission.
In child care cases when a parent for different reasons don’t honour a general courts decision and refuse to hand over his child to the other parent that parent can ask the county administrative court to obligate the refusing party to hand over the child. Before giving a binding decision this court could ask a member of the cities social welfare board or a civil servant within the social welfare agency of the city to act as a mediator trying to make the parent who unlawfully kept his child with him or her to hand over the children to the other parent.
e) criminal law and ADR
Apart from the mediation described under a) 1 above there are no ADR proceedings vis-à-vis criminal investigations and/or criminal proceedings.
E. CASE MANAGEMENT
a) in general
The mean time for duration of a case (time between bringing the case into the court until the final decision) in the first instance is the following:
Criminal proceedings: 2.3 months
Civil proceedings in simplified cases: 2.3 months.
Other civil proceedings except family cases: 4.6 months.
For the appellate proceedings the corresponding figures are in
Criminal proceedings: 3.2 months and in
Civil proceedings: 6.7 months
The Supreme Court is a precedent instance and the average time in that court is as follows
For the decision about review permit, the average time in criminal proceedings: 1.8 months
For criminal proceedings with review permit the average time is 11.4 months.
For the decision about review permit the average time in civil proceedings: 4.3 months
For civil proceedings with review permit the average time is 24 months.
Cases concerning juvenile delinquents and detained persons must be heard with high priority.
See under b) 2., 3., and 4. These powers exist to a certain extent but there are now proposals for changes of the Code of Judicial Procedure under consideration. These proposals deal with questions such as shortening and limiting the oral hearings, presentation of evidence outside the main hearing, the use of case timetables etc.
In civil cases in the district courts the court consists of a panel of three judges. However there are exceptions from this general principle and these exceptions are in practice of great importance. 1) A case is handled by a single judge when a main hearing is held in simplified form. 2) When in a case the court considers it sufficient and the parties consent thereto or the case is simple in character one judge will handle the case. 3) In civil cases amenable to out of court settlement, the district court shall consist of a single judge, if the value of the claim obviously does not exceed a certain amount of money (now app. 2000 euro).
In criminal cases in the district courts the court consists of a single judge and laymen. In minor case (if the most severe penalty prescribed is a fine or imprisonment for a term of not more than six months and there is no reason to impose any sanction other than a fine and a corporate fine is not at issue) the court consists of a single judge.
In administrative cases in district courts the court consists of a single judge with laymen.
b) in civil disputes
Most of the principles in the Recommendation already apply in the Swedish code of judicial procedure. The Code is under constant review; during the 1990’s, an extensive review resulted in a legislative proposal and amendments of the Code with regard to making the court proceedings more efficient.
A main hearing may be held in simplified form with the consent of the parties. Such a main hearing can take place in immediate conjunction with the preparation or, provided that the same judge is presiding, within fifteen days from the completion of the oral preparation. Regardless of the parties’ consent, a main hearing in simplified form may be held in immediate conjunction with the preparatory session if the resolution of the dispute is evident to the court. At a main hearing in simplified form what has occurred during the sessions before the conclusion of the oral preparation are considered to have occurred also at the main hearing without having to be repeated at the hearing.
In the Swedish legal system, there is a form of summary proceedings that take place outside the courts; an application for summary proceedings shall be instituted at the Enforcement Service. There are two forms of summary proceedings, summary debt collection proceedings and assistance, and they are regulated in a special act. – The summary collection procedure is available for collection of matured debts if settlement outside courtroom is admitted. It can be applied to claims for damages, irrespective of whether the claim is contractual or not. There is no monetary limit stated for the summary proceedings. – Assistance may be used for example to oblige a previous owner to vacate real estate or an apartment or when the plaintiff claims that the defendant is obliged to perform something other than payment of a debt. – If the defendant contests the application, the plaintiff can within a certain time limit request that the application be referred to the district court.
Another form of “simplified/summary proceedings” is the possibility for the judge to decide a case without a main hearing (see below). In addition to that, the Code provides a possibility for the court to immediately enter judgement in the case, without issuing a summons calling upon the defendant to answer, if the plaintiff’s statement does not constitute a legal basis for the case, or if it is otherwise clear that the case is unfounded.
In the district courts, three professional judges constitute the bench at main hearings, unless otherwise prescribed. A single judge is sufficient:
- if the main hearing is held in simplified form,
- if the court deems it sufficient that one judge constitutes the bench and the parties agree to this,
- if the court deems it sufficient that one judge constitutes the bench and the case is of a simple nature, or
- if an action is amenable to an out-of-court settlement and it is obvious that the value of the claim does not amount to half of the “basic amount” (SEK 39 300).
3. As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
No; with a few exceptions regarding family law and joint claims.
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
See under (iii).
(iii) exclusively written or oral proceedings, as the case may be;
The district court may without a main hearing
- decide upon a case in another way than through judgement (i.e. write off and dismiss cases)
- enter a default judgement
- enter a judgement based upon a party’s consent to or renunciation of a claim
- confirm a settlement agreement
- enter a judgement if a main hearing is not necessary with regard to the investigation presented and is not requested by a party.
The Swedish code of judicial procedure does not prevent the entire preparation from being purely written.
During a preparatory hearing, the preparation can pass into a main hearing in simplified form.
(iv) prohibition or restriction of certain exceptions and defences;
(v) more flexible rules of evidence;
No; except for the main hearing in simplified form, as described above.
(vi) no adjournments or only brief adjournments;
The Code’s directions about the main hearing, as far as possible, being held without interruption apply also to the main hearing in simplified form.
(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
The simplified procedure is no different from the normal main hearing in this regard.
(ix) the rendering on the part of the judge of a mere "oral" judgement.
See above (the account of the summary proceedings under question 2).
Yes, it has.
Yes, it is.
The district courts can decide on injunction relief when summary proceedings have been applied and in cases of judgment by default. In other cases the courts cannot decide on injunction relief. However, the Enforcement Administration will on principle not enforce an injunction if the individual leaves security.
There are no time-limits as such and there are no interlocutory judgements. However, cases on custody of and access to children and questions on injunction relief are having priority over other cases.
If a person shows probable cause to believe that he has a money claim and if it is reasonable to suspect that the opposing party, by absconding, removing property, or other action, will evade payment of the debt, the court may order the provisional attachment of so much of the opponent’s property that the applicant’s claim may be assumed to be secured on execution. Likewise the court may order provisional attachment of certain property if the applicant shows probable cause to believe that he has a superior right to that property, if it is reasonable to suspect that the opposing party will conceal, substantially deteriorate, or otherwise deal with or dispose of the property to the detriment of the applicant. In pending proceedings concerning superior right to certain property, if it is shown that one of the parties has unlawfully disturbed the opposing party’s possession or has taken any other unlawful measure regarding the property, the court may order the immediate restoration of possession or other immediate redress.
In cases other than now mentioned, if a person shows probable cause to believe that he has a claim against another and if it is reasonable to suspect that the opposing party by carrying on a certain activity, by performing or refraining from performing a certain act, or by other conduct, will hinder or render more difficult the exercise or realization of the applicant’s right or substantially reduce the value of that right, the court may make an order for measures suitable to secure the applicant’s right. Such measure may include: prohibition, subject to a default fine, of carrying on a certain activity or performing a certain act or an order, subject to a default fine, to have regard to the applicant’s claim or the appointment of a receiver or the issue of a direction suitable in other ways to safeguard the applicant’s right.
Security measures may on principle not be granted unless the opposing party has been given an opportunity to respond. If delay places the applicant’s claim at risk, however, the court may immediately impose a security measure to remain effective until otherwise ordered. Urgency is required in all cases concerning security measures.
There is a Swedish equivalence of the Anton Piller order in cases of infringement of intellectual or industrial property rights and in cases of unlawful competition.
A first degree judgment is enforceable even if it is not final and legally binding, if it involves an obligation to pay. The appellant may obtain suspension of enforcement only if he leaves security for the claim.
Sweden has in the main implemented Recommendation No. R (95) 5. The major exception to this is Chapter III of the Recommendation which has been implemented only in a limited extension.
Almost all court decisions are subject to appeal, even though the right to appeal in certain preliminary matters is postponed to the main appeal in the substantive case. Excepted from the right to appeal are judgments by default which, however, may be reopened on application. However, a party against whom a default judgment has been entered twice has forfeited his right of the case. Also excepted from the right to appeal are decisions by the court of appeal on questions of preliminary orders on custody or access to children and some cases regarding tenants’ rights and environmental cases.
Court leave is required for all appeals to the Supreme Court, unless the Court of appeal was court of first instance. Court leave is required for appeals to the Court of appeal in cases concerning small claims.
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
In our view the enforcement of court judgments and the effectiveness of the activity of enforcement agents are highly satisfactory.
(ii) transparency of information concerning assets of debtors;
Information concerning assets of debtors is in general not disclosed to other individuals. The Enforcement Administration, however, has the right to obtain such information from employers, banks, financial institutes, assurance companies etc.
Furthermore, credit-rating agencies collect information regarding the financial position of companies and the financial and personal circumstances of individuals. Everyone over the age of 15 is on the computer files of Sweden's largest credit-rating agencies. Particulars concerning a private person may only be provided to a third party if there is a legitimate reason, for example an investigation into creditworthiness. Negligence on the part of a credit-rating agency can result in a liability to pay damages and those responsible may be fined or imprisoned.
(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
Sweden applies the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters Done at Brussels on 27 September 1968, the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters Done at Lugano on 16 September 1988 and the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. There are also a number of bilateral conventions on jurisdiction and the enforcement of judgments in civil and commercial matters. Having regard to the application of these instruments there is no apparent need for improvement.
c) in criminal matters
In the Swedish legal system, it is the public prosecutor that decides whether or not prosecution shall be instituted; with the exception of decisions concerning detention and other coercive measures, the court is not involved until the prosecutor (or an injured party) applies for a summons. The prosecutor may waive prosecution or, instead of instituting a prosecution, initiate a summary procedure. Trial court for minor offences may hear and decide a case in the absence of the accused, provided that he or she has been duly informed of the date of the hearing. In trials concerning offences for which the expected sanction is a money-fine, the trial court of the first instance may consist of a single judge; in other offences the trial court is composed by a panel of four persons (one professional judge and three lay judges).
For crimes punishable by fines only, the prosecutor may, instead of instituting a prosecution, propose a summary penalty by fine. Under this procedure the prosecutor will, in writing, call the suspect to pay a certain penalty. If the suspect accepts this proposal, his compliance implies an admission of guilt and a submission sanction. The system applies only to offences for which the maximum sanction is imprisonment for six months.
The police may submit a summary imposition if an offence is included in the “breach-of-regulations catalogue”, which is made up by the Prosecutor-General. The vast majority of offences relate to violation of traffic regulations.
(i) The prosecutor can make decisions to waive or discontinue proceedings on one of the following grounds:
a. if the expected sanction is a money-fine or a conditional sentence,
b. if the suspect has committed another offence and the sanction for that one may be considered to constitute a sufficient sanction,
c. if psychiatric or similar care will be rendered,
d. if the risk for continued criminality is negligible, or
e. if the prosecutor finds other special reasons.
For those who committed an offence when they were under 18, prosecution can also be waived:
- if the offence was mischievous, or
- if the young person is rendered adequate care and help.
(ii) Many offences such as road traffic offences are not decriminalised but there is a possibility for the police or the district attorney to settle them by breach-of-regulations fine or summary imposition of a fine.
When it comes to tax law there has been a decriminalisation. As from the 1 of January 1972 it’s not a crime any more to leave an incorrect information in your income-tax return if there is no criminal intent or gross negligence instead the tax authorities could impose a tax surcharge which can be appealed to an administrative court.
The main purpose of the reform was to create a more effective and fairer system of penalties than the old one, which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution. Unlike penalties for tax offences, the new surcharges were to be determined solely on objective grounds, and, accordingly, without regard to any form of criminal intent or negligence on the part of the taxpayer. It was thought that the old system did not function satisfactorily, since a large number of tax returns contained incorrect information whereas relatively few people were charged with tax offences. Now that the new system has been introduced only serious offences are prosecuted and of course even in those cases the Tax Authority normally also impose a tax surcharge.
Even if the tax surcharge is imposed by the Tax Authority and appealed to an administrative court I should be noticed that the proceeding concerning tax surcharges imposed on a person involve a determination of a criminal charge within the meaning of Article 6 of the Convention of Human Rights.
Also in customs law minor offences are dealt with in a similar way that goes for minor tax offences.
(vii) Notification of summons and decisions of the court is normally done by mail; only if the receiver does not return a receipt for having received the documents is notification done through a summoner.
(viii) The decision has to be issued in writing, even if the decision or sentence was passed orally at the main hearing. The decision can be written in simplified form, providing the defendant has accepted the charges and the sanction is no more than imprisonment for six months.
The bench has no role in investigation, as the prosecuting authority and the court are strictly separated. A single judge decides in questions of detention or other coercive measures. At the main hearing, the bench is able to make conclusive investigations in order to determine the validity of the charges.
In the Swedish legal system, only criminal cases under the Freedom of the Press act and the Freedom of Information act are tried before a jury. In these cases, the jury finds the guilt and the professional judges determine the penalty.