|
|
[ccje2005/docs/CCJE(2005)18e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
(CCJE)
QUESTIONNAIRE ON THEME
“JUSTICE AND SOCIETY”
Reply submitted by
the delegation of Sweden
A.1. The National Courts Administration (Domstolsverket - DV) is a Swedish central administrative agency reporting to the Government and operates as a service organisation for courts and authorities. The agency's areas of responsibility include the Supreme Court, Courts of Appeal, District Courts, Supreme Administrative Court, Administrative Courts of Appeal, County Administrative Courts, Regional Rent and Tenancies Tribunals together with the National Legal Aid Authority. DV has to undertake these tasks while respecting the fundamental principle of independence of courts and judges.
The work tasks of the DV include personnel development, service, education/training and information, making regulations, advice and instructions and ensuring that the operation is conducted efficiently. The DV is also the central authority for legal aid.
The National Courts Administration is divided into five departments: Finance, Personnel, Development, IT and the Premises and Technology Department. There is also a Legal Secretariat, an Information Secretariat, an Administrative Office, together with the DV's Internal Auditor, which all report directly to the Director General.
The overall objective of the Swedish Judiciary, or the efficiency objective for the legal service, is to safeguard due process and legal security for the individual. The DV contributes to the efficiency objective by cases and matters being determined in a legally secure and efficient manner. The operation is characterised by a citizen perspective.
The Information Secretariat has the overall responsibility for strategy, structure and content of internal and external information and is also responsible for the DV's information channels and graphic profile. The Information Secretariat answers questions from the media and the general public. Statistics can also be obtained.
On the Internet, at the homepage of the DV, www.dom.se, you will find information about the Swedish Judiciary and the DV, statistics, forms, information sheet on various issues, reports, addresses and links. The information sheets includes information about fees, crime actions, how to become a judge, family law, legal aid and legal expenses coverage, bankruptcy, how to give evidence at court, Judgments in criminal cases and their consequences and various sanctions etc.
At www.rattsinfo.dom.se (managed by the DV) you will find decisions that have been reported from The Supreme Court, the six Courts of Appeal, The Environmental Court of Appeal, The Swedish Supreme Administrative Court, the four Administrative Courts of Appeal, the DV and a few other entities.
The DV also issues two magazines, that the general public can read on the Internet or receive free of charge.
“Domstolsverket informerar” includes information about new laws and education for people employed in the Judiciary. The magazine is issued eleven times per year.
“Domkretsen” is the magazine for people employed within the courts and authorities, as well as other people that may be interested. The magazine is issued four times per year.
The DV reports includes reports on how the DV has solved its different tasks etc.
The DV also has a few digital overhead presentations about the DV:s and the Judiciary’s aims and objectives. The DV also produces annual reports, address booklets etc.
The DV has also produced a number of educational videos (most of them dramatized) to be used as information material in schools and among people in general. The videos with the included study material can be obtained by schools free of charge.
The Ministry of Justice (Justitiedepartementet) is responsible for legislation concerning the Constitution and general administrative law, civil law, procedural law and criminal law. The Ministry also handles matters relating to democratic issues, human rights, integration and minority issues, metropolitan affairs, sports issues and non-governmental organisations. The central objectives of The Ministry of Justice are to safeguard the democratic state under the rule of law by, among other things, increase the participation in the democratic processes on the part of citizens and increase the knowledge and awareness of human rights and promote respect for human rights in Sweden.
The Ministry of Justice produces various information materials such as the booklet “The Swedish Judiciary - A Brief Introduction”. The ministry also has information on the Internet, such as the section “How Sweden is governed”, where you find information also about the courts etc. This section also contains a description of how laws are enacted in Sweden and a list of Swedish statutes that have been translated into English, French or German.
On the Internet you will also find The Citizen’s Guide (Samhällsguiden), www.samhallsguiden.riksdagen.se, which gives you information about fees, crime actions, family law, crime victim’s compensation, penalties and other various sanctions etc. Some excerpts from the Citizen’s Guide are translated into English. The Citizen’s Guide is managed by the Government.
The Swedish Parliament (Sveriges riksdag) handles the enactment of laws and determination of state expenditure and revenue. Every year the Riksdag receives a great number of questions from the public and the media via the telephone, e-mail, fax and letter. Many of the questions concern the enactment of laws. A special EU Information Centre answers questions about the EU and Sweden’s EU membership. The Riksdag has a diversity of information material which can be ordered via the Riksdag’s website, www.riksdagen.se. Much of this material is also available in English and other languages. The Riksdag also produces study material for school pupils at different levels like brochures, books and fact sheets, prepared overheads, presentation leaflets about the Riksdag, CD-ROMs and videos. At the website you also find most laws that have been issued in Sweden, or links to where they can be found.
The Crime Victim Compensation and Support Authority (Brottsoffermyndigheten) is run by the Government and operates to help and support crime victims. The authority also decides on criminal injuries compensation and supports the studying of victims’ rights and situation at universities etc. The authority issues a lot of booklets with information for crime victims. The information includes facts about the courts and how a trial runs. You can find most of the information on the Internet at www.brottsoffermyndigheten.se.
The Swedish Association for Victim Support (Brottsofferjourernas Riksförbund, BOJ) is a non-profit charity organisation. The organisation aims to help crime victims and supports them through the criminal justice process. The organisation gives information about the criminal justice process and is represented in all major towns in Sweden. On the internet, www.boj.se, crime victims will find a lot of useful information about the criminal justice process.
The Swedish Consumer Agency (Konsumentverket, KO) is a state agency whose task is to help the Swedish general public with consumer affairs. The KO is empowered to take legal action against companies who violate market laws and in this work the KO informs the general public about those laws, as well as people’s rights within this area. As an example, you can on the Internet, www.ko.se, find Money Matters, The Consumer Debt Net Newsletter. As a part of the KO you find Konsument Europa, www.konsumenteuropa.se, which provides information and advice on your consumer rights in the European Union.
The National Board for Consumer Complaints (Allmänna reklamationsnämnden, ARN) is a public authority that functions roughly like a court. Its main task is to impartially try disputes between consumers and business operators. Petitions are filed by the consumer. The Board submits recommendations on how disputes should be resolved, for example that the business operator shall repair the defect on a product. The Board's recommendations are not binding, but the majority of companies nonetheless follow them. The Board does not provide advice on individual cases but on the Internet homepage, www.arn.se, the consumer can get helpful tips when needing legal advice within this area.
The Swedish Consumers' Banking & Finance Bureau (Konsumenternas Bank- och finansbyrå) is an independent agency whose objective is to meet consumers' need for neutral information and guidance with regard to financial services and to provide support in dealings with finance companies. All information and guidance is free of charge, www.konsumentbankbyran.se.
The Swedish Consumer Electricity Advice Bureau (Konsumenternas elrådgivningsbyrå) provides advice and guidance, to consumers in various matters, concerning the Electricity Market. All information and guidance is free of charge, www.elradgivningsbyran.se.
The Swedish Consumers Insurance Bureau (Konsumenternas försäkringsbyrå) provides advice to consumers in various insurance matters. The Bureau is a foundation and started its activities in 1979. The principles are the Swedish Consumer Agency, the Financial Supervisory Authority and the Swedish Insurance Federation. All guidance is free of charge, www.konsumenternasforsakringsbyra.se.
The general public can also turn to consumer counselling services in their municipalities.
The Swedish Bar Association (Sveriges advokatsamfund), gives some information about the Swedish Code of Judicial Procedure etc, as well as guidance to the right lawyer. A short counselling, free of charge, is also available. The web site, www.advokatsamfundet.se, contains information on various issues of interest to the public and the members of the Bar. One of the major features is the possibility for the public to access the Directory of Members.
The universities of Sweden gives information and issues books on various themes connected with the law or the judicial procedure.
There are also many pay sites available in Swedish, with information galore about landmark decisions delivered by the courts etc. These sites are mainly used by professional justice users.
The Public Prosecutor and the Police help and give information to crime victims and witnesses.
The courts themselves of course also inform the general public and other justice users about the law and the judicial procedure. Educational initiatives and outreach programmes are found in different courts throughout Sweden. These actions are mainly not taken on a nation wide initiative but instead usually in cooperation with universities, municipalities or the The Crime Victim Compensation and Support Authority (Brottsoffermyndigheten). Many courts have their own websites. When it comes to more important trials the courts sometimes issues their own press releases. This is more common at larger courts.
A.2. Policy makers, press etc will find information through the entities and channels listed above in answer A.1. Most of the government branches and the different organisations have regularly press releases.
A.3. Judicial decisions mainly get known by the general public when reading newspapers or watching the TV news channels. This information is not always accurate. The general public is therefore encouraged by the authorities to use the channels of information listed in answer A.1, especially the ones provided by the DV, The Ministry of Justice and The Swedish Parliament. Sometimes The Ministry of Justice and/or the DV have information campaigns over new laws etc. These campaigns may include information about judicial decisions. What is important to stress here is also the Swedish constitutional principle of freedom of information which is also applicable on Courts decisions. So Court decisions are possible to obtain by the general public as well as by the media. Copies (up to ten pages) are free of charge. The decisions are usually faxed or sent by post from the Court or is possible to read in the archives of the Court.
A.4. Most educational programs include a study visit to at least one court. All primary educational programs seem to include a description of the judicial system. At university level it is common that judges and lawyers take part as teachers in the programmes. Courts in general do not have P.R. offices or the like. Contacts with universities and schools are handled by the courts administration in general or by judges with a special interest for those questions. At the universities (law schools) role playing in trial like situations is common.
Some courts have in cooperation with The Crime Victim Compensation and Support Authority (Brottsoffermyndigheten) started an educational program that sometimes includes role playing and a study visit in court.
A.5. Educational initiatives and outreach programmes are found in different courts throughout Sweden. These actions are mainly not taken on a nation wide initiative but instead usually in cooperation with universities, municipalities or the The Crime Victim Compensation and Support Authority (Brottsoffermyndigheten).
A.6. At the moment there seems to exist no such theoretical studies; at least not as its own major subject.
B.1.a. Judges learn about and discuss deontology through courses during their original law studies as well as later when they have become judges. It is the DV that offer those latter studies as a part of the scheme for the development of the judges’ skills. The court staffs also get some schooling within this area. An ambitious educational programme for the court staffs is launched in the autumn of 2005. Members of The Swedish Bar Association (lawyers) are obliged to follow a written set of rules, containing a number of standards that an advocate must observe in his practice. These rules were first published in 1968 and the current version is from 1984. They contain ethical rules of conduct in relation to clients, courts, counterparts etc. The Swedish Bar Association arranges approximately 45 courses per year within the Bar Exam scheme. One part contains the ethical rules of conduct. The Council and the Disciplinary Committee are empowered with the task to supervise bar members and to ensure that they satisfy the professional duties of an advocate.
B.1.b. The stall of the public prosecutor is, in Swedish courts, at the same level as the place for the defence lawyer. All obvious references to a specific religious creed have been removed from the Swedish courts long ago. There can, however, still be found some non-obvious references in old paintings etc. Actions to remove those are not taken at the moment. The accused person nearly always appears free before the judge even if he or she is in detention.
B.1.c. The Swedish court witness oath has no longer any religious meaning. The Holy Bible has been removed from the court room. People in Sweden have since the late sixties addressed one and another informally and that is usually the case in courts too. Some people say, however, that a reaction the other way has been noticed the last couple of years when it comes to people in general, especially when working within the service area.
Information leaflets, mainly issued by the DV can be obtained before the court proceedings. The information sheets include information about crime actions and how to give evidence at court etc.
Some courts have in cooperation with The Crime Victim Compensation and Support Authority started an educational program that sometimes includes study visits in courts before a trial. The Crime Victim Compensation and Support Authority also inform crime victims about what to expect in court. The Swedish Association for Victim Support also has a role in this, as a part of the witness and crime victim service, as well as the court ushers.
B.1.d. Legal aid is available in Sweden. Legal counselling is generally not totally free of charge. Petty claims actions help and protect people with small claims; people that often have limited resources. A judge in a case like that is by law obliged to help the ones that do not pay for a lawyer on their own.
B.2. The answer is found above under B.1.a – d.
B.3. The DV, in cooperation with The Crime Victim Compensation and Support Authority, The Swedish Association for Victim Support and The Swedish Bar Association among others, work to give attention to crime victims and witnesses’ situation and the way they are treated in court. The group regularly arranges seminars and helps different authorities to start up cooperation in this field.
The Crime Victim Compensation and Support Authority supports (with grants etc) different universities and schools studying how crime victims and witnesses are treated in court and how they are affected by the situation. The university studies mainly concern women and children as victims of crime.
C.1–3. Of fundamental importance is what was mentioned under A.3 on the principle of freedom of information.
Of importance is also the Swedish system with laymen in both courts of first instance and appeal courts. Their participation in the administration of justice gives the courts a broad contact-area with our society as a whole.
It does not exist PR-officies in the Swedish courts. However Swedish judges are now more than in the past accepting to answer general questions from the media but also to present their court-decisions and explain them in the media for the public.
Printed material are produced by DV and also by single courts. There are also websites for the public distributed by single courts.
There are no further relevant information to be given here except what has been said in the answers to the questions under A , B and D.
C 4. According to our primary constitutional law, the Instrument of Government passed in 1974, all Swedish citizens and aliens in Sweden enjoy certain fundamental rights and freedoms. One of the most important of these rights and freedoms is the freedom of expression. This is defined by the Instrument of Government as the freedom to communicate by word, in writing or images or in other ways communicate information and express ideas, opinions and feelings. According to the Constitution, the freedom of expression maybe restricted by statutes enacted by the Parliament (the Riksdag). One form of restriction on the freedom of expression consists of the legislation concerning the duty of confidentiality on the part of civil servants engaged by the state and municipalities. The provisions are consolidated in the Secrecy Act. The Secrecy Act, which entered into force on 1 January 1981, contains provisions on what is to be kept secret in state and municipal activities. One way of expressing the matter is to say that the secrecy legislation states what exceptions apply to the so-called principle of public access to information.
The principle of public access to information means that the public and the mass media – newspapers, radio and television – are entitled to receive information about state and municipal activities. In principle therefore all Swedish citizens and aliens are entitled to read the documents held by public authorities.
It is also laid down by the Instrument of Government that court hearings shall be public, i.e. that the public and representatives ofthe massmedia may attend trials. The Parliament may decide exceptions from this main rule by enacting statutes providing that court hearings may be held behind closed doors (in camera). Under such hearings it is only the court and the parties who may be present in the courtroom.
If information subject to secrecy is to be provided or adduced at a court hearing, the court may generally hold a hearing behind closed doors. In general courts particularly strong reasons are usually required to be able to exclude the public from a hearing at which information subject to secrecy is involved (the best example is cases about child-pornography and sex crimes). The possibilities for holding hearings in camera are greater in administrative courts than in general courts.
If a court-hearing in a case is held in public, the secrecy that has applied to the information provided or adduced at the hearing ceases. If the hearing is held in camera the main rule is that secrecy is preserved. When the court then determines the case, the secrecy ceases, unless the court specially decides that secrecy shall continue.
Secrecy does not apply to an item of information that is included in a judgement or a decisions made by the court, unless the court specially decides that secrecy shall continue. The final judgment and corresponding part of a decision may only be marked as secret in rare exceptional cases.
The prosecution is instituted when the summons application is filed with the court. The documents are filed in the court by the prosecutor together with the preliminary investigation done by the police or the prosecutor. This written documentation – with few exceptions – then becomes public. The name of the prosecutor, the accused, witnesses etc. are made public. The names of the judges dealing with the cases also become public. Pictures of persons involved are also public. However there exists a absolute prohibition against photographing or filming in the court-room under court sessions.
A more detailed information concerning the Swedish system for public access to information and secrecy with Swedish authorities are to be found in the attached little brochure (APPENDIX I) from the Swedish Ministry of Justice, where also most of the answers related to the questions under C are to be found. The answers below are therefore mere to be seen as complementary remarks.
C.5.1. The convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108) is to be seen as implemented throw the implementation of Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection to the processing of personal data and the free movement of such data. The directive was implemented throw the Swedish law (1998:204) on personal data (Personuppgiftslagen).
C5.2. and C5.3. Once again it is important to stress the Swedish constitutional principle of freedom of information which makes it possible for media as well as others to have access to public document unless otherwise is clearly stated in law, the Swedish Secrecy Act. Also court hearings are public unless stated otherwise for specific cases in the procedural rules.
Courts normally do not have spokesmen and a judge is free to make statement to the press as long as he doesn’t jeopardize his function in a the case where he is presiding.
C.7 Television cameras are not allowed in the courtrooms except used by the court itself as a part of the proceedings when i.e. it is difficult for a witness to be present in person.
C.8 and C.11. When it is a question of defamation of character it is a crime according to Swedish criminal law which can render fines or in serious cases prison for up to two year. A person guilty of defamation of character can also be held to pay for the damages he caused and obliged to pay for the printing of the judgement in one or more newspapers. Also slander and insulting a person could be seen as a crime especially if it involves an act of discrimination related to race, sex and ethnicity.
The journalist is not responsible under criminal or civil law for his article or report in a printed publication or radio or TV. Instead it is the editor-in-chief who exclusively has this responsibilty. The legislation on the press and other media responsibilities is a part of the constitution of Sweden. In a criminal case on defamation a jury at first tries the case. The jury in the first instance must find the editor responsible for a crime otherwise the case is lost and may not be appealed against not even under civil law. But even if the jury finds the editor guilty of defamation the judges may take a non-guilty decision. This system gives the media a strong protection and on the opposite the protection of privacy in the Swedish legal sysztem could be looked upon as quite weak.
This special regime is a part of the Sweish constitution; see point 1.4 in the attached brochure (APPENDIX I). The system is presented more in detail in a report to a conference ”Freedom of the Media and Protection of the Personality within the European Union - International media symposium 11 and 12 of February 2002 ,Vienna - The approach of Sweden -
Editorial Secrecy, Freedom of the Media and Criminal Prosecution – A Comparison of the Present Situation and Future Perspectives”, which is attached to this document (APPENDIX II).
There is no established criteria related to the amount of compensation afforded by courts to the victims of the above violations. The compensation is decided on a case by case bases after what seems reasonable depending of the nature and duration of the offence.
C.9, C10 and 12. See point 3.7 in the attached brochure (APPENDIX I). As long as there is not a question of a criminal act i.e. defamation of character the behaviour of press is governed only by ethic codes. There is no law against providing mere false information except for specific situations during war. – Normally, if false and inaccurate information is presented in media, the person who has been injured is given the possibility to clarify his or her point of view in i.e. the newspaper concerned.
When it concerns radio and television there is however a Broadcasting Commission who is a state authority which examines radio and television programmes in Sweden. The Commission shall, on a strictly ex post facto basis, supervise the compliance of programme content with the provisions of the laws which regulate broadcasting services and the licences granted by the Government. The Commission's mandate covers all Swedish radio and television broadcasters which offer services to the general public, be it on a local, regional or national basis. On the basis of the programme rules adopted by the EURO member countries, the Commission also examines transmissions of foreign channels distributed by satellite to the Swedish public.
Except when there is a violation i.e. an authors right to his production there is no possibility for a court to order the seizure of publications and stop distribution of books. In a case under the Freedom of the Press Act where a court finds that a crime against the act is committed the printed matter (i.e. a book or a pamflet ) may be confiscated. Only a court has the competence to make such decisions. A seizure foregoing the court decision of confiscation in such cases can only be instituted by the sole prosecutor in the field, the Chancellor of Justice, who has to bring this matter under court decision in a very short time.
C.13. No, there is no specific role for a judicial body or association when a judge or a court is attacked by press. A judge, if he or her wish to make a statement, may under no circumstances reveal classified information.
D.1. In a criminal case judgement, the reasons for decision of the court are stated after the allegations and claims. Sometimes the reasons for decision can be very comprehensive. The (district) court can describe what the accused, aggrieved parties and any witnesses have stated during the hearing. If there is written evidence, for example physicians’ certificates, these may also be reported. The court also describes here how it has assessed the evidence. The district court normally also gives reasons as to why it chose the sanction imposed upon the accused.
In some cases, a simplified form of judgment is used. In that case the entire judgment is written on one or several standard forms and no report and the reasons for decision are given. This simplified form may be used when the accused has confessed and the sanction does not involve imprisonment or restricted youth care or the sanction is a term of imprisonment of at most six months.
In civil cases the reasons for decision of the court normally are rather comprehensive. A simplified form of judgment can be used when the defendant is admitting the claim or when a judgment by default is issued.
Latin wordings are not generally used in judgments. Oral (only) judgments are not used. A judgment could be oral at first but is always followed by a written decision. It is believed that this system fulfils the needs that the general public have got when it comes to understanding and studying the decision. Some judges, however, have proposed that oral (only) judgments should be allowed to speed up the court proceedings and the courts’ work.
D.2. A group of well known judges and language experts (Klarspråksgruppen) have since 1993 been working for the Government to support different authorities, including the courts, in their work for simplification and clarity of the language. The group aim to inform the authorities about projects in this field run in Sweden and other countries, arranging seminars and conferences, develop and support the group’s information site on the Internet and once a year award a price to an authority which has made an especially good progress in this field.
The Ministry of Justice is constantly working to find ways to simplify forms of reasoning and decisions etc.
The DV is working to simplify the form of orders and summons. The DV together with a workingparty of judges and language experts issued a booklet with guidelines for judges interested in using a more plain language a couple of years ago.
--------------
APPENDIX I
Public Access to Information and Secrecy with Swedish Authorities Information concerning secrecy legislation, etc
1 Public Access to Information and Secrecy with Swedish Authorities Information concerning secrecy legislation, etc.
GOVERNMENT OFFICES
2 ISBN 91-38-31559-9 This brochure is produced by the Ministry of Justice. Additional copies can be ordered from the Ministry of Justice, SE-10333 Stockholm Sweden, Fax: 46 8 20 27 34.
3 Foreword The Secrecy Act, which entered into force on 1 January 1981, contains provisions on what is to be kept secret in state and municipal activities.
One way of expressing the matter is to say that the secrecy legislation states what exceptions apply to the so-called principle of public access to information. The Secrecy Act also contains provisions concerning registration, marking as secret, the authorities’ obligation to provide information to the public and to each other, appeals against decisions of authorities, etc. The Act also contains regulations on what rules on confidentiality shall prevail over
the fundamental principle of the Freedom of Press Act that everybody is entitled to provide information for publication in printed matter. The Secrecy Act is described briefly in this brochure. If you wish to know more, you are referred to the preparatory works of the Act, primarily the Government Bill 1979/80:2 and the report of the Parliamentary Standing Committee on the Constitution – KU 1979/80:37. The latest reprint of the wording of the Act is available in Swedish Code of Statutes – SFS 1992:1474. The brochure also contains a report on the rules of the Freedom of Press Act concerning official documents.
4 Contents
1 The principle of public access to information ............................. 7
1.1 The various forms of the principle of public access to
information ........................................................................... 7
1.2 Public access to official documents ...................................... 7
1.3 Freedom of expression for civil servants, etc. ........................ 8
1.4 Communication freedom for civil servants, etc. ................... 8
1.5 Public access to court hearings ............................................. 9
1.6 Public access to the meetings of decision-making assemblies 9
2 Official documents ...................................................................... 10
2.1 What is an official document? .............................................. 10
2.2 What official documents may be kept secret? ...................... 12
2.3 How can the public gain access to official documents? ........ 13
3 The Secrecy Act ........................................................................... 15
3.1 An outline of the contents of the Act ................................... 15
3.2 Certain fundamental features of the Act – the general
provisions of Chapter 1 ........................................................ 16
3.2.1 What issues are governed by the Act ......................... 16
3.2.2 Who should observe secrecy? ..................................... 16
3.2.3 What does secrecy mean? ........................................... 17
3.3 The scope of secrecy and dissemination – the real secrecy
provisions (Chapters 2–10) .................................................. 18
3.3.1 The scope of secrecy .................................................. 18
3.3.2 Absolute and conditional secrecy ............................... 18
3.3.3 Time limits on secrecy ................................................ 19
3.3.4 Transfer of secrecy ...................................................... 20
3.4 Special secrecy provisions for particular authorities
(Chapters 11–13) ................................................................. 20
3.4.1 Secrecy for the Government, the Riksdag and others
(Chapter 11) .............................................................. 20
3.4.2 Secrecy for the courts (Chapter 12) ........................... 21
3.4.3 Transfer of secrecy to certain authorities
(Chapter 13) .............................................................. 21
5
3.5 Special limits on secrecy. Reservations (Chapter 14) ........... 22
3.5.1 Secrecy between authorities ....................................... 22
3.5.2 Special limits on secrecy in relation to individuals ..... 23
3.5.3 Waiver ........................................................................ 24
3.5.4 Reservations ................................................................ 24
3.6 Special rules for official documents (Chapter 15) ................ 25
3.6.1 Registration of official documents .............................. 25
3.6.2 Marking as secret ........................................................ 25
3.6.3 The duty of authorities to provide information ......... 26
3.6.4 Who considers whether an official document may
be disclosed? ............................................................... 26
3.6.5 Appeals ....................................................................... 26
3.6.6 Special rules concerning ADP redordings .................. 27
3.7 Duties of confidentiality prevailing over freedom of
communication (Chapter 16) ............................................... 27
4 Court hearings in camera ............................................................. 28
7. 1 The principle of public access to information
1.1 The various forms of the principle of public access to information The principle of public access to information means that the public and the mass media – newspapers, radio and television – are entitled to receive information about state and municipal activities. The principle of public access to information is expressed in various ways:
– anybody whosoever may read the documents of authorities: access to
official documents;
– civil servants and others who work for the state or municipalities are
entitled to say what they know to outsiders: freedom of expression for
civil servants and others;
– civil servants and others in the service of the state or municipalities
have special powers to disclose information to newspapers, radio and
television: communication freedom for civil servants and others;
– the public and the mass media are entitled to attend trials: access to
court hearings;
– the public and the mass media may attend when the chamber of the
Riksdag (the Swedish Parliament), the municipal assembly, county council
and other such entities meet: access to meetings of decision-making
assemblies.
1.2 Public access to official documents. In principle, all Swedish citizens and aliens are entitled to read the documents held by public authorities. However, this right is restricted in
two ways. Firstly, the public only enjoy the right to read such documents that are regarded as official documents. Not all documents of a public authority are in fact considered to be official documents. Thus, for example, a draft of a decision, a written communication or the like in a matter is not an official document if the draft is not used when the matter is finally determined.
8 Secondly, a number of official documents are secret. This means that the public is not entitled to read the documents and the public authorities are forbidden to make them public.
The fundamental rules on public access to official documents are found in Part 2. The extent to which secrecy applies to official documents is stated in the Secrecy Act. (See Part 3.2).
1.3 Freedom of expression for civil servants, etc.
According to our primary constitutional law, the Instrument of Government passed in 1974, all Swedish citizens and aliens in Sweden enjoy certain fundamental rights and freedoms. One of the most important of these rights and freedoms is the freedom of expression. This is defined by the Instrument of Government as the freedom to communicate by word, in writing or images or in other ways communicate information and express ideas, opinions and feelings. According to the Constitution, the freedom of expression may be restricted by statutes enacted by the Riksdag. One form of restriction on the freedom of expression consists of the legislation concerning the duty of confidentiality on the part of civil servants engaged by the state and municipalities. The provisions are consolidated in the Secrecy Act (see Part 3.2).
1.4 Communication freedom for civil servants, etc.
The freedom to communicate information applies to everybody but it is of particularly great importance for civil servants and others engaged by the state and municipalities. The rules concerning the right to communicate information are contained as a component of the Freedom of Press Act’s provisions on freedom of the press. By “freedom of the press” is meant the right enjoyed by everyone to freely express themselves in printed matter, e.g. books and newspapers. If a printed matter contains something criminal there is only one person who may be penalised. This is normally the author. In the case of newspapers it is, however, the person responsible for publication who can be held liable.
All others who contribute to a printed matter containing something criminal are therefore, in principle, free from liability. This also applies to a person who provides information which is published in the printed matter. This is said to involve a right to communicate information on the part of the person providing the information. However, the right to provide information for publication in written publications does not always apply. There are exceptions to the right to communicate information in the following three cases:
9 – it is not permitted to provide information for publication in a book or newspaper if the person providing the information thereby commits a serious crime against national security, e.g. espionage;
– it is not permitted to intentionally provide an official document whose publication is secret;
– it is not permitted to intentionally breach certain duties of secrecy (which can consequently be said to supersede the right to communicate information).
The duties of secrecy which supersede the right to communicate information are listed in the Secrecy Act. The other exceptions to this right are given directly by the Freedom of Press Act. The protection for freedom of expression in radio, TV, films, video and sound recordings, etc., is regulated as of 1 January 1992 by the Fundamental Law on Freedom of Expression. This new constitutional law is based on the same principles as the Freedom of Press Act.
1.5 Public access to court hearings It is laid down by the Instrument of Government that court hearings shall be public, i.e. that the public and the mass media may attend trials. The Riksdag may make exceptions to this main rule by enacting statutes providing
that court hearings may be held behind closed doors (in camera). In such hearings it is only the court and the parties who may be present in the courtroom. Provisions concerning when court hearings may be held in camera are given by the Code of Judicial Procedure and other acts concerning judicial proceedings (see Part 4).
1.6 Public access to the meetings of decisionmaking assemblies The principle that the meetings of decision-making assemblies shall be open to public attendance is not laid down in the constitutional laws. In the case of the Riksdag, there are provisions contained in the Riksdag Act relating to access to meetings in the chamber. Corresponding rules concerning municipal assemblies and county councils are provided by the Local Government Act. In exceptional cases these decision-making assemblies may meet in camera.
10 2 Official documents
Chapter 2 of the Freedom of Press Act states what is meant by the term ‘official document’. This chapter also includes fundamental rules concerning which official documents may be kept secret. Furthermore, the chapter contains provisions on how the public gains access to official documents that are not secret. An outline description of these rules in the Freedom of Press Act is given here.
2.1 What is an official document? A document is a presentation in writing or images but also a recording that one can read, listen to or comprehend in another way only by means of technical aids. The word ‘document’ consequently refers not only to paper and writing or images but also, for example, to a tape recording or data stored electronically. One can say that a document is an object which contains information of some kind. A document is official if it is 1. held by a public authority, and 2. according to special rules is regarded as having been received or drawn up by a public authority.
Public authority
The Freedom of Press Act does not state what is meant by public authority. One may say that public authorities are those entities included in the state and municipal administration. The Government, the central public authorities, the commercial public agencies, the courts and the municipal boards are examples of such public authorities. However, companies, associations and foundations are not public authorities even if the state or a municipality wholly owns or controls them. Nor are the Riksdag, the county council or municipal assemblies public authorities but the Freedom of Press Act expressly equates these decision-making assemblies with public authorities. Moreover, the Secrecy Act also prescribes that the
11 provisions of the Freedom of the Press Act regarding the right of access to documents also applies to other entities, for example a company over which a municipality or county council exercises legal powers of control. (See Part 3.2.2).
Held by a public authority It is often easy to conclude that a document consisting of paper with writing is ‘held’ by a certain public authority. In other instances it is more difficult to say where a document is held. This applies for example to information stored on a computer. The computer itself with the data stored electronically may be found at one public authority, while another public authority has access to the information on its own computer screens or
may obtain printouts from the recording directly on its own equipment. According to the Freedom of the Press Act, recordings shall be deemed to be held by the authority if the authority can read, listen to or in another way comprehend them with technical aids that the authority uses itself. However, according to a special restriction contained in the same section
of the Freedom of the Press Act, a compilation of information stored on a computer is not deemed to be held by the authority unless the authority can extract it by means of some routine kind of measure. The authority is for instance not obliged to write new computer programmes in order to be able to satisfy a request to gain access to a particular compilation of information stored on a computer that has not already been compiled by the authority. There is a further limitation, namely that such compilations of information stored on computers are not deemed to be held by the authority if they contain personal data and the authority does not have the power according to law or ordinance to make the compilation available. The underlying purpose of this provision is to ensure that the public cannot, by referring to the principle of public access to information, request compilations of personal data that the authority cannot even itself produce having regard to the protection of personal privacy. If a public authority has the sole function of technically processing or storing electronic recordings on behalf of another public authority or on behalf of an individual, such a recording is not considered to be an official document held by the public authority that only has technical functions in this respect. Received by a public authority A document has been received by a public authority when the document has arrived at the authority or is in the hands of a competent official, for example, the civil servant dealing with the matter to which the document refers. The document need not be registered in order to be an official document.
12 The Freedom of Press Act also contains special rules concerning letters and other messages which are not addressed to the public authority directly but to one of the officers of the authority. If such a message relates to the authorities activities, it is an official document even though it has been addressed to a specific person at the authority. There is one exception to this rule. For example, a municipal councillor or a trade union representative on the board of an authority can receive letters concerning issues that the municipality or authority is engaged with but without the letter becoming an official document, provided he/she received the letter exclusively in his/her capacity as a politician or union representative. Drawn up by a public authority The Freedom of Press Act contains many rules relating to when a document
is considered to have been drawn up by a public authority. The principle may be said to be that a document, which is created at a public authority, is an official document when it obtains its final form. A document is considered to be drawn up when an authority sends it out (dispatches it). A document which is not dispatched is drawn up when the matter to which
it relates is finally settled by the authority. If the document does not belong to any specific matter, it is drawn up when it has been finally checked or has otherwise received its final form. For certain kinds of documents other rules apply concerning when they are drawn up. Thus, for example, a diary, a journal or similar document that are kept on a continuing basis, are considered to be drawn up as soon as the document is completed so as to be ready for use. Judgments and other decisions, with associated records, are drawn up when the ruling or decision has been pronounced or dispatched. Other records and similar documents are generally drawn up when the authority has finally checked them or approved them by other means. Preliminary outlines and drafts (for example, of a decision of an authority) and memoranda (notes) are not official documents if they have not been retained for filing. By ‘memorandum’ is meant an aide-mémoire or other notation made for the preparation of a case or matter and which has not introduced any new factual information.
2.2 What official documents may be kept secret?
The Freedom of Press Act lists the interests that may be protected by keeping official documents secret:
1. national security or Sweden’s relations with a foreign state or an international
organisation;
13 2. the central financial policy, the monetary policy, or the national foreign exchange policy of Sweden;
3. the inspection, control or other supervisory activities of a public
authority;
4. the interest of preventing or prosecuting crime;
5. the public economic interest;
6. the protection of the personal integrity or economic circumstances of
private subjects; or
7. the preservation of animal or plant species. Official documents may not be kept secret in order to protect interests other than those listed above. Which documents are secret shall be carefully stated in a special statute, that is, the Secrecy Act. However, it is permitted to include provisions concerning secrecy in other enactments provided that the Secrecy Act makes reference to them. In other words, the Secrecy Act shall indicate all the instances when official documents are secret. The Government may not decide on which documents are secret; this is an exclusive right of the Riksdag. However, in a number of provisions of the Secrecy Act, the Government is given the right to make supplementary regulations. The Government’s regulations are contained in the Secrecy Ordinance (Swedish Code of Statutes 1980:657 reprinted in 1998:1333).
2.3 How can the public gain access to official documents? A person who wishes to obtain an official document should refer to the public authority keeping the document. The person has the right to read the document at that place (provided the document is not secret). If the document cannot be read or be comprehended in any way without using technical aids, the authority shall make such equipment available, for example, a tape-recorder in the case of a tape-recording. A document may also be transcribed, photographed or recorded. If a document is secret in part, those parts of the document that are not secret shall be made available in transcript or by a copy. Exceptions to the rules described here regarding having sight of the document at the place have, inter alia, been made where this “causes serious difficulty”. Those wishing to obtain official documents are also entitled to obtain a transcript or a copy of the document for a fixed fee. However, the authority is not obliged to provide a document comprising electronic data for computer processing except as a printout, unless otherwise prescribed by law. Those who wish to obtain official documents need not describe the 14 document precisely, for example, state its date or registration number. But on the other hand, authorities are not liable to make extensive inquiries in order to obtain the document for the applicant when he or she cannot provide the authority with further details of the document. A request to obtain an official document shall be dealt with speedily by the authority. A civil servant currently working with the document need not release it immediately but unnecessary delay is not permitted. One reason for some delay in the provision of an official document may be that the authority must consider whether the information contained in the document is secret or not, according to one of the provisions of the Secrecy Act. Sometimes it is an authority other than the one where the document is held that must determine the issue of secrecy. In that event, the request for the provision of the document should be submitted at once to the authority that will decide on the matter. An authority may not demand a person who wishes to obtain an official document to identify himself or herself or state what the document will be used for. However, if it relates to a document falling under one of the provisions of the Secrecy Act, the authority must sometimes know who wishes to obtain it and what it will be used for. Otherwise, the authority might not be able to make a decision concerning whether the document may be made available. In that event the applicant may either say who he or she is and state what the document will be used for (for example, research) or relinquish any possibility of obtaining it.
An authority has, under certain circumstances, the possibility of providing a document subject to conditions, so-called reservations, restricting the applicant’s right to use the information contained within the document. The authority may, for example, forbid the applicant to publish the information or to use it for purposes other than research. If an authority has rejected a request to obtain a document or if it has supplied an official document subject to reservations, the applicant is, under the Freedom of Press Act, generally entitled to request that the matter be reviewed by a court. The Secrecy Act contains provisions concerning when reservations may be imposed and the court to which appeals should be addressed. The decision of an authority to provide an official document cannot be appealed against.
15 The Secrecy Act 3
3.1 An outline of the contents of the Act
The Secrecy Act is divided into 16 chapters. The first chapter contains general provisions about what issues are governed by the Act, what is meant by secrecy, who should observe secrecy, etc. Chapters 2–10 contain the real secrecy provisions, that is, the provisions prescribing what information shall be kept secret. The chapters are arranged in the same manner as the rules of the Freedom of Press Act concerning which interests may be protected by official documents being kept secret (see Part 2.2). The secrecy provisions of Chapter 2 protect national security and Sweden’s relations with other states and international organisations, Chapter 3, Sweden’s central financial policy, monetary policy and foreign exchange policy, etc. The provisions that protect the personal and financial circumstances of individuals have been divided into three chapters. Chapter 7 protects the personal circumstances of the individual (for example, within health care and social welfare). Chapter 8 contains provisions to protect the financial circumstances of individuals (for example, in Government supervision of trade and industry. The circumstances of individuals of both a personal and financial nature (for example, within the tax system) are protected by Chapter 9.
Chapters 11–13 govern secrecy at such authorities as the Government, the courts or those authorities that supervise or audit other authorities. Chapter 14 contains provisions that to some extent limit the secrecy that would otherwise apply. Among other things, authorities are given powers to provide each other with information to a greater extent than that allowed in relation to individuals. Furthermore, there are provisions restricting secrecy in relation to individual persons, for example, parties in cases and matters and the trade union representatives of civil servants. Chapter 14 also contains rules concerning conditions and reservations that may be imposed when information is provided to individuals. The provisions included in Chapter 15 concern keeping registers, marking as secret, the duty of authorities to provide information and appeals. The chapter also contains a section with special provisions concerning ADP recordings.
16 The final chapter of the Secrecy Act lays down what duties of confidentiality prevail over the right of communication (see Part 1.4). This chapter has only one paragraph, which contains a list in “catalogue form” of these duties of confidentiality. 3.2 Certain fundamental features of the Act – the general provisions of Chapter 1
3.2.1 What issues are governed by the act? The Secrecy Act governs, in principle, all secrecy in public activities. The Act replaces both the former Secrecy Act from 1937 and virtually all
previous regulations relating to the duty of confidentiality for those who are active within the state and municipalities. The provisions concerning when courts may hold hearings in camera are included in the Code of Judicial Procedure and other acts governing judicial proceedings (see more on this in Part 4).
3.2.2 Who should observe secrecy?
To begin with the public authorities must observe secrecy. Rather like the Freedom of Press Act, the Secrecy Act is silent concerning any definition of the concept of public authority. The words have the same meaning in constitutional law (See Part 2.1). As in the Freedom of Press Act, the state and municipal decision-making assemblies are equated with authorities
i.e. primarily the Riksdag, county councils and municipal assemblies. As of 1 January 1998 (and to some extent already as of 1 January 1995) companies, profit-making associations and foundations in which the municipalities or county councils exercise legal decision-making powers are also equated with authorities as regards the right of access to official documents from public authorities and the application of the Secrecy Act. However, a state-owned share company, profit-making association or foundation or a private entity is only liable to apply the principle of public access to information and the Secrecy Act if the entity in question has
been listed in the Appendix to the Secrecy Act and in such cases only in the operation that is listed in the Appendix. One reason for including a state-owned company or a private entity in the Appendix to the Secrecy Act may be that the entity in question engages in the exercise of official powers in relation to individuals.
Besides authorities and the above-mentioned entities, persons in public service or who are undertaking public service duties (for example, 17 compulsory military service) must observe secrecy. The Act describes this category of persons as those who by reason of employment or an assignment with an authority, by reason of service obligations or other similar grounds participate or have participated, on behalf of the public, in the operations of the authority. It follows from this that secrecy shall also be observed after the employment, assignment, etc. has ceased. A composite designation for such persons, which is often used, is ‘public functionaries’. A prerequisite for a public functionary to be bound to observe secrecy concerning something is that he or she has learned of it in his/her activities on behalf of the public. What functionaries may have learned in other quarters is consequently not subject to secrecy under the Secrecy Act. Special rules apply to clergymen within the Church of Sweden in relation to their duty of confidentiality. There are duties of professional secrecy under other enactments than the Secrecy Act regarding persons who are not public officials (for example, attorneys and physicians in private practice).
3.2.3 What does secrecy mean?
The concept of secrecy is defined in the Act. The word means a prohibition on disclosing information whether orally or by making an official document available or in any other way (e.g. by the disclosure of a document, which is not an official document, or production of an article). Secrecy simultaneously entails a restriction on the right of the public to obtain an official document. Secrecy thus expresses two different aspects of the same matter: if the public are not entitled to obtain an official document, the authorities and the public officials are consequently forbidden from making the document available or disclosing its contents in another way. One can say that a secret document’s contents are protected by the duty to observe secrecy. Further, information held by a public authority that is not an official document may be subject to secrecy. In order to indicate in the Act that information is subject to secrecy, the term ‘secrecy shall apply to this information’ is used. The Act’s provisions more closely describe what information is subject to secrecy, (see Part 3.3). Should secrecy apply to information, this means that the information may not be made available to individual persons, corporations, associations, etc. except in those cases stated in the Secrecy Act or in an enactment or ordinance, which the Secrecy Act refers to. Furthermore, secrecy also means that information may not be made available to other authorities in cases other than those stated in the Secrecy Act or in an enactment or an ordinance to which the Secrecy Act refers.
18 To a certain extent, secrecy also applies within an authority, namely between various operational branches within an authority (for example, between a county administrative board’s tax department and its planning department). However, there are special rules limiting secrecy between authorities (operational branches), see Part 3.5.1. Secrecy also means that information may not be used outside the activity where it is subject to secrecy (for example, for stock exchange speculation). Secrecy does not prevent information being made available if it is necessary in order for the authority to perform its own functions. Thus, if it is necessary, an authority may, for example, consult an independent expert, even if this should involve providing information to the expert that is subject to secrecy. The provisions imposing penalties for offences against secrecy are not contained in the Secrecy Act but in the Penal Code, more particularly in Chapter 20, Section 3 (breach of professional secrecy). In a case of intentional commission of a breach of professional secrecy the penalty is a fine or imprisonment for a maximum of one year and in the case of a breach committed by carelessness a fine. Petty cases of carelessness are not subject to any penalty.
3.3 The scope of secrecy and dissemination – the real secrecy provisions (Chapters 2–10)
3.3.1 The scope of secrecy The operative secrecy provisions are made up of various component parts, elements. They are introduced with the expression ‘Secrecy shall apply’ in combination with the words ‘to information’. The information is always described in detail. The information is of some definite kind (for example, ‘Sweden’s relations with another state’ or ‘the personal circumstances of an individual’). Secrecy is usually stated to apply to information found in some special context, for example, in certain matters, in certain operations or at certain authorities that are described in some in detail by the provisions.
3.3.2 Absolute and conditional secrecy. A number of secrecy provisions do not lay down any special conditions for the applicability of secrecy to information mentioned in that context. However, the majority of secrecy provisions are subject to prerequisites regarding their applicability, which require that certain special conditions 19 are met. The condition is usually formulated as a so-called requirement of damage. Such a requirement means that secrecy applies provided that some stated risk of damage arises if the information is disclosed. There are two main types of requirement of damage: “straight” and “reverse”.
The form of the straight requirement of damage is indicated by the following examples: “Secrecy shall apply to matters concerning occupational injury insurance or partial pension insurance for information concerning an individual’s business or operational circumstances, if it can be assumed that disclosure of the information would cause damage to the individual”. The straight requirement of damage indicates the main rule to be that secrecy does not apply and that the information may be disclosed. The reversed requirement of damage assumes secrecy to be the main rule. An example of this type of requirement of damage is as follows: “Secrecy applies within the social services to information concerning an individual’s personal circumstances, unless it is manifestly evident that the information may be disclosed without the individual or a person closely related to him being harmed”. As indicted by these two examples, the words ‘damage’ and ‘harm’ are used for the requirement of damage. The word ‘damage’ refers to economic damage that someone may suffer because the information about his/her financial circumstances has been disclosed, e.g. to a business competitor. The word ‘harm’ primarily designates various kinds of violations of integrity that may arise because information about someone’s personal circumstances is disclosed. (A legal person, e.g. a corporation, cannot suffer ‘harm’ within the meaning of the Secrecy Act). ‘Harm’ includes both physical injury and mental distress. The disclosure of information that is not normally sensitive (e.g. a person’s address) may also sometimes involve harm, for example, if it may be assumed that the person who receives the information will use it to expose the other to violence or harassment. To some extent, ‘harm’ also includes the consequences of a person’s private financial situation being disclosed.
3.3.3 Time limits on secrecy. One of the possible ways that has often been employed in the Secrecy Act for restricting the extent of secrecy are rules concerning time limits. Such rules only relate to information in official documents and thus not to information found in other forms. The secrecy period is usually formulated as a maximum period stating the longest period that the information in an official document may be kept secret. As most secrecy provisions contain a requirement of damage, one may expect that the risk of damage has often ceased before the secrecy period expires.
20 The secrecy period varies from 2 to 70 years, depending on the interest to be protected. For the protection of an individual’s personal affairs, the secrecy period is usually 50 or 70 years while, as regards public or private individuals’ financial circumstances, it is often 20 years. One main rule concerning the point of departure in the computation of the secrecy period is stated in one of the introductory provisions of the Act. For most documents the starting point is with the date the document was made. As regards diaries, journals, registers and other notes kept continuously, the time is counted from when the information was entered into the document. Some secrecy provisions also contain other deviations from the main rule.
3.3.4 Transfer of secrecy. Secrecy is usually expressed to apply in relation to certain matters, for certain operations and regarding certain public authorities. In that case, secrecy does not attach to the information disclosed to another authority in the absence of further provisions. The Secrecy Act does not contain any general rule concerning the transfer of secrecy between public authorities. As a rule, the need for secrecy by the recipient authority is satisfied by that authority having its own secrecy rule applicable to the information. However, this does not apply comprehensively. Instead there are rules providing that secrecy accompanies information to another authority in special situations. Such rules concerning transfer of secrecy are contained in a number of sections in Chapters 2–10. However, the most important rules are contained in Chapters 11–13.
3.4 Special secrecy provisions for particular authorities (Chapters 11–13)
3.4.1 Secrecy for the government, the riksdag and others (Chapter 11) Sometimes the real secrecy provisions of Chapters 2–10 are applicable to the Government and Government Offices (the ministries). Furthermore, there is a provision that is directly aimed at the Government. This provision means that secrecy that applies to an item of information is transferred to the Government, when the Government shall decide whether the information may be provided. This may, for example, involve an issue about
21 the Government granting a waiver from secrecy in a particular case (see more about waivers in Part 3.5.3). By a special waiver rule, the Government has been given power to decide itself whether secrecy shall apply to information in a matter that it decides on. That stated here, concerning the Government, also largely applies to the Riksdag. The powers of the Riksdag to grant waivers apply only to information regarding the Riksdag itself and the authorities that report to the Riksdag (for example, the Riksbank, Swedish Central Bank). Secrecy within the Riksdag is limited to a particularly stringent level as regards such matters as have been discussed in the Chamber and to issues concerning information in records, commission and committee reports and similar documents. Secrecy is also limited to a particularly stringent extent regarding the Parliamentary Ombudsman (JO) and the Office of the Chancellor of Justice (JK). This particularly applies to information that an individual has
provided. The decisions of the JO are, in practice, always public.
3.4.2 Secrecy for the courts (Chapter 12). The special secrecy provisions for the courts mean that the secrecy that applies to information is transferred to a court, if the information is provided to the court. There are exceptions to this main rule. For instance, there are secrecy provisions in Chapters 2–10 that are directly aimed at the courts in particular and which should be applied instead. If a court hearing in a case is held in public, the secrecy that has applied to the information that has been provided or adduced at the hearing ceases. If the hearing is held behind closed doors (in camera) (see Part 4), the main rule is that secrecy is preserved. When the court then determines the case, the secrecy ceases, unless the court specially decides that secrecy shall continue. Secrecy does not apply to an item of information that is included in a judgement or a decision made by a court, unless the court specially decides that secrecy shall continue. The final judgment and corresponding part of a decision may only be marked as secret in rare exceptional cases.
3.4.3 Transfer of secrecy to certain authorities (Chapter 13) Secrecy is transferred to:
– authorities that have supervision of other authorities or which conduct audits at other authorities;
22 – authorities that deal with matters concerning disciplinary issues and
the like;
– authorities that have research activities;
– authorities that deal with archiving;
– authorities that attend to trade union negotiations.
A precondition for secrecy being transferred is that the information is intended for the activity as stated above. There are a couple of exceptions to the main rule concerning transfer of secrecy.
3.5 Special limits on secrecy. Reservations (Chapter 14)
3.5.1 Secrecy between authorities. In principle, secrecy also applies between authorities. However, there are special provisions whereby it is possible for authorities to provide information to each other to a greater extent than to individuals. The most important of these provisions have the following effect. Secrecy does not prevent information from being provided to another authority, as long as there is a provision in a statute or ordinance that the
information shall be provided to the authority. One example of such an obligation to provide information is the obligation to testify. Secrecy does not prevent information being provided to another authority that needs the information:
– for example, for a trial of a civil servant for an offence in office;
– for reconsideration of a decision or a measure by the authority that has
the information;
– for supervision of the authority that has the information or for auditing
the authority. Secrecy does not prevent information being provided to another authority,
if on balancing between the interest of providing the information and the interest of preserving secrecy, it is manifest that the first-mentioned interest is greater. This rule (the so-called general clause) is not applicable in all cases. Among other things, it may not be applied when there is an issue of secrecy within the health and medical services and within the social welfare services. Such provisions in other statutes and ordinances, which state the case in which information of a particular kind may be provided to other authorities, may also exclude the application of the general clause.
23
3.5.2 Special limits on secrecy in relation to individuals Secrecy to protect an individual person does not apply in relation to that person. He or she can furthermore waive secrecy, completely or partially, so that the information may be provided to other individuals or to an
authority. In a couple of exceptional cases, the individual does not have any such right to control secrecy that protects him/her. Thus, for example, a hospital file may be kept secret from the patient, if the patient’s condition would deteriorate seriously if he/she were allowed to read the file. A person who waives secrecy for an item of information can require that the authority imposes a reservation when the information is provided to another individual (see Part 3.5.4).
A party in a case or matter before a court or other authority is, in principle, entitled to see all information in the case or matter. It is only in exceptional cases that something can be kept secret from a party. Judgements and decisions must always be provided to the parties. If information that is subject to secrecy is provided to a party, a reservation may be imposed (see Part 3.5.4).
A person who is suspected of or charged with an offence in office may provide information subject to secrecy to his defence counsel, if this is necessary in order to be able to protect his/her rights. A corresponding restriction of secrecy applies to such legal proceedings as matters concerning disciplinary measures. Secrecy in accordance with some of the provisions of Chapters 2–10 does not prevent an authority from providing information to the trade union representatives of public employees, if the authority has a statutory duty to provide the information (as is the case, for example, under the Employment (Co-determination at the Workplace) Act (MBL) and the Work Environment Act). If the person who receives information is employed by an authority, he or she shall observe the secrecy provision applicable to the authority. If the trade union representative is employed there, the authority can impose upon him/her a duty of confidentiality by imposing a reservation (see Part 3.5.4).
A trade union representative may, independently of his/her duty of confidentiality, pass information on to a member of the board of his/her trade union organisation. The trade union representative shall then inform the member of the board about the duty of confidentiality, and the member of the board in his/her turn becomes bound by the same duty of confidentiality. A trade union representative may also use information, for example, to stop the operation at a dangerous workplace, provided that he/she does not disclose the information.
24
3.5.3 Waiver
In several secrecy provisions of Chapters 2–10, the Government has been given the right, in special cases, to make exceptions to (grant a waiver from) the secrecy that applies according to the provisions. There is also a rule that provides the Government with an opportunity, in exceptional cases, to provide a waiver from secrecy in accordance with any secrecy provision whatsoever. If the matter involves secrecy for an item of information held by the Riksdag or some other authority reporting to the Riksdag, it is instead the Riksdag that is entitled to grant a waiver. A waiver may be combined with conditions, reservations (see following Part).
3.5.4 Reservations. A reservation that is imposed when information is provided to an individual means that the individual cannot freely use the information. For example, he/she may be prohibited from publishing the information or using it for anything other than research purposes. Four special situations when reservations may be imposed, if information is provided to an individual have been mentioned in parts 3.5.2 and 3.5.3.
There is also a more general rule that makes it possible for an authority to impose a reservation when information is provided to an individual. However, a reservation may never be imposed when information is provided to an authority. A precondition for the general rule on reservations being applicable is that the matter relates to information that is subject to secrecy in accordance with some secrecy provision that contains a requirement of damage (see Part 3.3.2). If those conditions that are imposed by the reservation eliminate the risk of damage that prevents the information from being provided, the authority shall provide the information and impose the reservation. An individual who makes use of information in violation of a reservation may be subject to punishment for breach of professional confidentiality (Chapter 20, Section 3, Penal Code). A person who requests part of an official document need not be satisfied with receiving the document subject to a reservation, but can appeal and have the reservation considered by a superior instance (see Parts 2.3 and 3.6.5).
25 3.6 Special rules for official documents
(Chapter 15)
3.6.1 Registration of official documents. In order to facilitate the public’s exercise of the right of access to official documents, it is important for it to be allowed to know which documents
are held by the public authorities. Consequently, official documents received by an authority or drawn up there must be registered. There are four exceptions to this rule. The following documents need not be registered:
– documents that are obviously of little importance to the authorities’
activities (for example, press cuttings, circulars and advertising material);
– documents that are not secret and are kept in such a manner that it can
easily be ascertained whether they have been received or drawn up by
the authority;
– documents that are found in large numbers at authorities and which
the Government has exempted from the registration requirement by
special provisions (in the Secrecy Ordinance);
– ADP recordings available at the authority by reason of another authority registering them in a common ADP register. In order to permit the public ready access to read the registers of authorities, such registers should, in principle, not contain any information subject to secrecy. The authorities may, however, to a certain degree, keep registers with secret information, either as a complement to the public registers or with the permission of the Government (in the Secrecy Ordinance).
3.6.2 Marking as secret. An official document containing information subject to secrecy may be marked secret. It is, however, generally not necessary to make such a mark indicating secrecy. Notation other than the word “secret” may not be used. Thus, expressions such as “in confidence”, “confidential” or “for official use only” must not be used. If a person requests to see a document, marked secret, the issue of providing the document should be considered in the normal manner. Thus, a mark denoting secrecy does not release the authority from the obligation to consider the request. Consequently, a notation or mark of secrecy only operates as a “warning signal”. Those official documents that are of great importance to national security
26 shall be provided with a so-called qualified notation of secrecy. Such a notation has binding force as regards which authority is empowered to determine whether the document may be disclosed.
3.6.3 The duty of authorities to provide information On the request of a private person, the authorities shall provide information from the official documents held by the authority that are not secret. This duty is in addition to the duty to provide the document itself (see Part 2 regarding the latter obligation). The authorities must also assist private persons with the special information needed in order to obtain information from ADP recordings. The authorities must on request also provide each other with such information at their disposal that is not subject to secrecy. A prerequisite for the duty to provide information is that it may be done without impeding the usual functioning of the authority. 3.6.4 Who considers whether an official document may be disclosed? The matter is considered in the first instance by the official responsible for the care of the document, for example, a registrar or a person reporting on a matter. In doubtful cases, the official should refer the matter to the authority if this would not delay determination of the matter. Further, if the official refuses to provide the document or supplies it subject to a reservation (see Part 3.5.4), the matter must be referred to the authority on the request of the applicant. The applicant shall be advised that he may make such a request and that a decision by the authority must be made in order for it to be possible to appeal against a decision. ‘The Authority’ can be a more senior official or, for example, the authority’s board.
3.6.5 Appeals If an authority has rejected a request to obtain a document or if it has supplied an official document subject to a reservation (see Part 3.5.4), the applicant is generally entitled to appeal against the decision. Appeals are usually presented to an administrative court of appeal. A decision of such a court may be appealed against to the Supreme Administrative Court. If the party whose application has been rejected is a state authority, the
appeal is presented to the Government instead of to an administrative court of appeal.
27
3.6.6 Special rules concerning ADP recordings. The Secrecy Act contains an explicit reminder that the authorities should bear in mind the principle of public access to information when they establish new or alter existing ADP systems. Furthermore, the Secrecy Act gives individuals the right, to a limited extent, to themselves use the computer terminals of the authorities in order to view ADP recordings. The authorities are also under a duty to keep an explanation of their ADP use available for the public.
3.7 Duties of confidentiality prevailing over freedom of communication (Chapter 16) The right of communication means that a person who provides information for publication in printed matter or on radio or television is free from liability, even if the information otherwise may not be provided. These secrecy provisions do not always provide sufficient scope for public officials to the extent that is desirable in order to be able to provide a basis for public debate and to be able to participate in it. By the freedom to communicate being available, the opportunities are improved for irregularities and wrongs in society becoming publicly exposed and discussed. The freedom to communicate does not mean that public officials are liable to provide information to the mass media but only that they have an opportunity to do so, if they consider that the interest of public access to the authorities’ operations weighs more heavy than the interest to be protected by the secrecy. As indicated in Part 1.4, there is an exception to the right of communication. One of the exceptions relates to such duties of confidentiality that prevail over the freedom of communication. The last chapter of the Secrecy Act states which these duties of confidentiality are by listing a number of sections of the Secrecy Act and other statutes. Two examples that may be mentioned of public officials who cannot freely provide information to the mass media are attorneys and physicians employed by the public health service. Most of the duties of confidentiality that prevail over the freedom of communication are those that are imposed on public officials. In some cases the freedom of communication is also limited for individual persons by the duty of confidentiality (among others, attorneys and physicians in private practice).
28 4. If information subject to secrecy is to be provided or adduced at a court hearing, the court may generally hold a hearing behind closed doors (in camera). In the general courts (district/city courts, courts of appeal and the Supreme Court) particularly strong reasons are usually required to be able to exclude the public from a hearing at which information subject to secrecy is involved. The possibilities for holding hearings in camera are greater in administrative courts (county administrative courts, courts of administrative appeal and the Supreme Administrative Court) than in the general courts. If a court hearing has been held in camera, the court may impose a duty of confidentiality on those who have been in attendance.
Court hearings in camera Ministry of Justice, Sweden Tryck: Edita Stockholm. December 2004. Omslag: Rolf Hernegran Edita Stockholm. Upplaga: 3.000 ex.
APPENDIX II
Freedom of the Media and Protection of the Personality within the European Union International media symposium 11 and 12 of February 2002
The approach of Sweden
Editorial Secrecy, Freedom of the Media and Criminal Prosecution – A Comparison of the Present Situation and Future Perspectives
A presentation by Johan Hirschfeldt
1 Constitutional background and the development of some main principles
The principles of freedom of the press were legally confirmed in Sweden for the first time more than 200 years ago. Ever since 1809 Sweden has maintained permanent legal safeguards for the freedom of the press. This legislation has from the beginning contained far more than just general principles.
There are two mass media laws today in Sweden. The first one is The Freedom of the Press Act, FPA, (from 1949), embracing books, newspapers, journals and other printed matters. FPA originates in principles formed in the 1760ies. In 1766 Sweden got its first fundamental law on freedom of the press. The second one is the fairly new Fundamental Law on Freedom of Expression, FLFE, (into force 1992), and embracing electronic media such as broadcasting, television, films, sound tapes, videotapes and certain databases.
FPA and FLFE are parts of the Swedish constitution. As fundamental laws they cannot be changed without a special procedure - two decisions in Parliament with a general election between. The other fundamental laws are first the "basic" one, The Instrument of Government dealing with the fundamental rights and freedoms of the citizens, the basic rules of the Parliament, the Government and so on. Also the freedom of the media and the freedom of expression are enshrined as general principles in the Instrument of Government. The fourth fundamental law is The Act of Succession, dealing with the right of the members of the Bernadotte family to the Royal Swedish Throne.
In the first paragraph of the first chapter of FPA the scope of the principle of freedom of the press is presented. The substance is in part essentially the same as in the first FPA from 1766. The aim of this fundamental law is to ensure the free interchange of opinion and enlightenment of the public. The main content of the paragraph is – with certain exceptions - the following:
Every Swedish subject shall be entitled to publish his thoughts and opinions in print, to publish official documents and to make statements and communicate information on any subject whatsoever. All persons are also entitled to make statements and communicate information on any subject whatsoever, for the purpose of publication in print, to the author or to any person who shall be considered the originator of material in such a publication, to the responsible publisher or editorial office, if any, of any publication, or to an enterprise which professionally purveys news or other information to periodical publications. All persons shall furthermore be entitled to procure information and intelligence on any subject whatsoever for the purpose of its publication in print or for the purpose of making statements or communicating information.
For the implementation of this system of freedom of the media the rules on the public nature of official documents are of great importance. This principle was also formed in the first FPA from 1766 and is still a part of the Swedish constitution (Chapter 2 in FPA).
The documents kept by a public authority are official documents regardless of whether they were received or drawn up at the authority and regardless of their content. An official document may thus be either public or confidential. Electronic data registers and other mechanical and electronic records are treated as documents. In the case of documents drawn up by a public authority, the general rule is that they become public when they receive final form. Drafts and proposals also become public if they are filed and registered after a matter has been settled. The rules allow some scope for unofficial exchanges concerning internal matters. An official document is public in principle, that is, it must be kept available normally in the original, to anyone who wishes to peruse it. The private subject is entitled to receive a transcript or copy of the document and may also he reproduce or copy it using equipment of his own. Exceptions from the principle of the public nature of documents or cases when an official document must be kept secret have to be scrupulously identified in a special law, by which is meant the Official Secrets Acts. But FPA lists the interests governing secrecy; there may be no secrecy other than in accordance with these principles.
The principle of editorial responsibility made also an early appearance in FPA and was of great importance in the 19th century when the modern press as a mass media was established. This was of particular importance for daily newspapers, where several contributors were frequently involved. One individual was nominated responsible editor and became liable for any offences committed. Other persons – journalists, technical staff, outside contributors and news sources – were absolved of legal responsibility and could preserve their anonymity. A press ethic developed whereby the editorial staff of journals respected the desire for anonymity; by this means a right to anonymity became established, and was enshrined in the 1949 FPA from its inception.
In the first chapters of FPA (1:4) and FLFE (1:5) there is also an important protective measure to save the spirit of the constitutional principles in reality. This measure is composed as an instruction for all officials and the courts dealing with matters of freedom of expression. The instruction in FPA reads as follows:
Any person entrusted with passing judgments on abuses of the freedom of the press or otherwise ensuring compliance with this Act shall constantly bear in mind that freedom of the press is fundamental to a free society; direct his attention always more to illegality of subject-matter in the form of expression, to the aim rather than to the manner of presentation, and, in case of doubt, acquit rather than convict.
2 A further look on the main principles
The FPA and FLFE affords in detail protection of the freedom of the media in several important respects:
The two constitutional laws are to a very high degree are based on the same principles: a strict ban on censorship and other types of governmental hindrances to production and distribution of news, oral or written matters and presentations of all kinds, artistic works and so on. In other words the laws provide protection against action by the authorities to raise obstacles to the printing, publication, or dissemination of printed matters.
Next basic principle is everybody’s right to produce and distribute publications. These founding rights are essentially applicable also in the field of modern mass media.
It is in the FPA and FLFE that the borderline between what may and what may not be stated or published is essentially and entirely defined - the principle of exclusivity. In the two fundamental laws there is an exhaustive enumeration of all deeds actionable as press or media freedom delicts. The crimes which can be committed through these protected forms of uttering must be scrupulously specified in the constitutional law itself, not only in the ordinary Crime Act, whereas the art and the seriousness of the punishment can be prescribed in this latter act. The principle of exclusivity implies that the government, the police and public administration as a whole is prohibited from intervening against abuses of the freedom of expression other than in the cases and in the manner prescribed in these two fundamental laws.
The principle of exclusivity was inaugurated already in the FPA of 1766. The Parliamentary ombudsman, with his special duty to protect the freedoms of the citizens, was concerned with the need to uphold this principle. In 1856 he stressed the rights for civil servants, especially those in lower ranks, to express their views and discuss matters in public on the civil service and its shortcomings. In order to protect this freedom the Ombudsman made a statement where he stressed that disciplinary actions and putting a subordinated civil servant to inconvenience must be not be accepted. And after an action from the Ombudsman the Supreme Court for the first time, in 1901, accepted this principle:
In a newspaper an article was published about drunkenness during a manoeuvres. His superior, a major, interrogated one of the conscripts and asked if he was the author of the article. The conscript was disciplined for the publication. The Ombudsman went to disciplinary action against the major. The Supreme Court disciplined the major. (NJA 1901 s. 280).
FPA and FLFE provide procedural guarantees against a "police-type" or bureaucratic spirit in the case of actions against abuses of the freedom of the press. The Chancellor of Justice is the only public prosecutor with an exception in FLFE. There exist special court procedures in cases involving legal actions against infringements of the two laws, entitling the parties to have the case tried by jury.
There are two different sets of rules aiming to safeguard the main purpose of FPA and FLFE to promote the free supply of news and a public debate. The first is already mentioned: the rule on access to public information. The second gives protection of news sources. It protects those who communicate information orally or in writing with a view to its publication. The principle of protection of news sources forms an important part of the editorial secrecy.
3 The protected, different kinds of media
FPA is applicable to all material – text or pictures - produced using a printing press. Under certain conditions – a license or endorsement with certain information concerning the duplication - FPA is applicable also to documents duplicated by stencilling, photocopying or other technical procedure. Printed matter shall not be considered as such unless it is published. A periodical – newspapers and magazines – with at least four separate issues a year and with a license to publish is a category with a privileged position in FPA. Each separate issue of a periodical must carry the name of the responsible publisher.
FLFE concerns statements made public through certain modes of expression namely audio radio, television and certain similar transfers (i.e. telefax and videotext), films, videotapes, audio recordings and other technical recordings. FLFE also contains the so-called database rule. This rule provides constitutional protection for databases whereby the public are provided with information on special request with the aid of electro-magnetic waves subject to two preconditions. The first is that an editor for a periodical or for radio programmes, an enterprise for the professional production of technical recordings or a news agency runs the database. The second is that the recipient cannot alter the content in the register.
An extension of the constitutional protection for mass media in FLFE is now under way. The Media Constitutional Law Commission has finished its preparatory dealing with FLFE and the Internet in its report, SOU 2001:28. The government bill (prop. 2001/02:74) has been accepted by parliament in a first reading in the autumn of 2001. The second reading is planned to take place after the election in 2002.
The result of this first decision on extension of the scope of FLFE is the following. The database rule is extended to apply also to direct transmissions on request, print on demand that involves individual copies of written matter, pictures or technical recordings being produced on order through extracts from a database, for example in a book or record store, and use of such push-technology whereby a database owner who controls the contents of the database transmits messages to recipients with a content and at time intervals that they have specified in advance. This protection covers ordinary mass-media enterprises. An opportunity for voluntary constitutional protection is possible for other actors upon application for a publishing license.
The Commission had the assignment to analyse the need of and the pre-conditions for a greater technology-independent constitutional regulation of the freedom of expression. The Commission found that there was a need to provide constitutional protection for e.g. the use of certain push-technology. The Commission argued as follows.
The desire to achieve a more technology-independent FLFE must not, in the view of the Commission, result in a deterioration of the constitutional protection, but on the contrary the legal principles applicable to the press and freedom of expression must continue to apply in the future. It is, among other things, difficult to apply the existing sole liability system generally to publication on the Internet. If this were to be done, there would be a great risk that there would often not be anyone to be held responsible if an expression is criminal. Nor should one generally burden everyone who publishes expressions on, for example, the Internet, with the drawbacks entailed by constitutional protection in the form of an obligation to appoint an editor, document the content, etc. A general constitutional protection for publication via the Internet or through other transfers to the public with the aid of electro-magnetic waves should therefore not be implemented. Some form of delimitation is required instead.
This delimitation should be effected through an opportunity for voluntary constitutional protection for certain communication. This voluntary protection cannot be achieved through any kind of rule prescribing that constitutional protection applies if certain information is stated. One reason for this is that for constitutional protection requirements in addition to the provision of certain information must be imposed; among other things, the activity must be arranged so that the person conducting it has control of the content. Nor is information in a database permanent, but can easily be removed or altered, which can result in doubts about the existence of constitutional protection. The Commission considers that the protection ought instead to be designed so that it is made dependent upon a publishing licence being sought and issued.
- - -
The proposal means that the constitutional laws to a large extent are technology-independent and that the limitations that apply are necessary if one wishes to maintain the freedom of expression legal principles at the same time as one does not wish to burden other persons than those who wish to have constitutional protection with the obligations this entails. The Media Constitutional Law Commission considers that the constitutional laws with the proposed amendments will in a sufficient manner satisfy the requirements for technology-independence at the same time as the constitutional rules are afforded an appropriate substantive content.
The Commission considers that a standing committee should be established with the task of monitoring developments and investigating and submitting proposals for solutions to various problems in the field of freedom of expression.
This discussion illustrates some of the consequences of the concept of an in depth-regulation of the freedom of expression in the constitution. There are of course certain advantages and disadvantages with such a technique of legislation. The in depth-regulation forms a strong protection but it is more complicated to change the regulation with regard to new media techniques. There is also a risk that the in depth regulation becomes so detailed and complicated that the core of the constitutional principle becomes concealed for the public and also to sophisticated for most politicians, lawyers and journalists. If so the system as such could be in danger. This problem became obvious in Sweden in the 1990ies when a situation with several cases of child pornography-rings using video films forced the legislator to a changes. The crime of child pornography was transferred to the Criminal code – an ordinary crime among others.
4 Protection of news sources and editorial secrecy
4.1 Editorial responsibility
FPA and FLFE are based on the principle of editorial responsibility in mass media. According to FPA the name of the responsible publisher must be registered and each separate issue of a periodical must carry his name. He, who is the editor in chief, is responsible and liable for any offence committed. Others - journalists, technical staff, outside contributors and news sources – are absolved of legal responsibility. Since 1949 the right of anonymity became established in FPA and is now also applicable in FLFE.
The object of protecting the news sources is to further an ample supply of information to news media and agencies. According to a much quoted statement the institutes of law mentioned here constitute "the safety valve which alone makes it possible in many a case for words to be spoken that ought to be spoken, for facts to be disclosed that ought to be disclosed". This is said to be one of the bases for the free formation of public opinion upon which Swedish democracy rests.
4.2 Freedom of Informants and Protection of Anonymity
The principle of exclusive responsibility makes it possible to protect news sources. This protection consists of rules granting exemption from punishment and damages - sometimes called "the freedom of informants" - for those who supply newspaper offices or news agencies with information. It also includes a right for authors and other contributors to printed statements to remain anonymous.
Under FPA and FLFE, the freedom of informants means that even information privileged in terms of the Official Secrets Act may to a considerable extent be passed on to news enterprises for publication.
Certain exceptions have been made from the freedom of informants. The FPA and FLFE authorize punishments to be imposed according to statutory law if a person passes on information constituting any of a number of specified crimes against national security. The same applies to offences committed with intent against the law prohibiting delivery of secret documents, i.e., of the actual, physical documentation, as well as certain violations of legally imposed secrecy. In the court procedure in such a case the jury system usually is applied (see 5.4).
The right of anonymity under the FPA and FLFE mainly means that authors and informants are not obliged to appear under their own names in a publication; that it is inadmissible to enquire about the identity of the author or informant behind a statement in a publication in connection with cases involving media-law crimes; that those who, while serving with news agencies or other mass-media enterprises in a professional capacity, learn about the identity of author or informant are bound not to divulge that identity; and that authorities and other public agencies are prohibited from enquiring into the identity of author or informant.
According to the mentioned principles journalists and other authors of the distributed press material as a rule cannot be sentenced for what they have procured or produced, and the same applies to those who give oral or written information to the press with the aim of publishing. If there is an aim of publishing it does not matter if there was no publication in the end, the protection of the informer is still upheld. So, the wells of news are strictly protected and those who give information have the right to be anonymous.
Normally even a civil servant to that purpose can release information to the press about his service, no matter if the information is secret. Only in certain cases specified in a fixed chapter of the Secrecy Act such civil servants acting that way can be prosecuted and punished. In that way the quite limited area in which legally imposed secrecy take priority of the freedom of informants is specified.
These far-reaching protective rules have for a long time given a strong effect to the principle of freedom of information. They are upheld today in ongoing reforms of the legislation and in the administration of justice. However there are of course problems balancing these rules with other vital well-founded interest. I will now discuss some of these problems.
The single civil servant has – with certain exceptions - his constitutional right to give information to the media about conditions and facts relating to his superiors or his agency as such or about cases or persons dealt with by the agency. There are of course certain risks that such a right may be misused. It is of great importance that the media keeps its critical independence and also tries to use other sources to get such information confirmed or rejected.
This freedom of information is a right of a citizen whether he is a civil servant or not. However it is not a freedom of the agency as such. This fact includes a new problem. If a ministry, a state board or municipal agency as such decides to inform the media in an official statement, a press release or with a spokesman informing at a press conference the principle is not applicable. It may therefore be difficult to draw the line between an official statement and protected information. When is the director-general representing his board and when is he using his rights as any citizen? For the prosecutor in freedom of information matters it is important to act with restraint when such a balancing problem in a case occurs. Only when it is obvious that the information is not covered by the constitutional principle there will be a possibility for him to act. If the director-general obviously made a libellous uttering about a citizen this could under certain conditions become a case of libel in court. If the media published the uttering it would not be the director-general but the editor in chief that would be prosecuted.
Here we have an illustration of a very delicate and risky balance. A high ranked official, e.g. a prosecutor, could be tempted to a misuse or to try to influence the media with his personal “official version”. If the media does not uphold its critical ambitions and its responsible attitude against slander in such a situation it could form a dangerous misalliance or symbiosis between the state and the media. The freedom of information must not be used in the interests of the state or as a part of the official duty of a civil servant. It is a freedom for the citizens – including civil servants - in the interests of our society.
The protection of sources comes in force through the provisions on duty of confidentiality in FPA (Chap. 3 Sect. 3). This duty is however not without its exceptions. Four exceptions could be relevant e.g. for a journalist as a witness in court.
First of all it does not apply if the person concerned has given his consent to the disclosure of his identity. The second exception concerns specified crimes against national security. The third one concerns certain cases on breach of secrecy: where a secret document has been delivered or a breach of legally imposed secrecy according to the restricting provisions in chap. 16 of the Official Secrets Acts has occurred according to the prosecution. The forth one concerns the duty to witness in other cases than cases under FPA and FLFE. The duty of confidentiality does not apply “insofar as a court of law, in any other case, finds, having regard to the public or private interest, that it is of particular importance for information as to identity to be given in testimony under oath”.
However for the third and fourth cases there is stipulated a limitation: The court shall scrupulously ensure that no questions are put which might encroach upon the duty of confidentiality beyond what is permissible in each particular case. Another prerequisite is that there seems to be no other possible evidence to demonstrate. In the preparatory works from 1976 the Minister of Justice stressed that the respect for confidentiality shall only give away to very strong reasons. As an example you could mention cases of very serious crimes where an editorial office of a newspaper has been used as a cover for the crime.
In general you could say that the courts to solve the sensitive problems when conflict of interests occurs apply the principle of proportionality.
The principle of duty of confidentiality has been embodied also in the Swedish code of judicial procedure; see on seizure Chap. 27 Sect. 2, on witnesses Chap. 36 Sect. 5 on documentary evidence Chap. 38 Sect. 2 and on views Chap. 39 Sect. 5. The police may not use searches for seizure of material protected by the provisions of duty of confidentiality in these situations protected by FPA and FLFE. Instead the prosecutor has to ask for the permission of the court to interrogate the witness in court.
Here it ought also to be stressed that it is only the Chancellor of Justice, not the police or an ordinary prosecutor that is invested with the competence to decide on searches of premises and seizures in such criminal cases that are freedom of the press matters; see 5.1.
Of course this complicated structure of rules protecting the media and at the same time giving effect in the administration of justice in criminal cases constitutes several problem in practice and gives space for widely differing opinions. These conflicts of interest are taken very seriously in an open debate in Sweden. They are often discussed in preparatory legislative works, in the judicial doctrine and by media researchers.
5 Supervision and criminal prosecution
5.1 The role of the Chancellor of Justice as prosecutor against criminal uttering etc.
There is, as mentioned, no system or prior censorship of the press and it does not exist any authority that scrutinizes prints systematically. For broadcasting and TV, however, there is such a governmental board (Granskningsnämnden för radio och TV). To supervise that the limits to the freedom enshrined in FPA and FLFE are not transgressed, the Chancellor of Justice (Justitiekanslern, JK) has the function as the only public prosecutor in cases regarding criminal offences by responsible editors. Only the Chancellor – not the police or ordinary public prosecutors – has the competence to decide to bring an action. He himself makes all the decisions on e.g. the seizure of books, papers, films or other material. In the FLFE there has, however, recently been made a change giving the Chancellor a possibility to delegate certain tasks to an ordinary prosecutor. Actions and the indictment must be raised within certain stipulated short periods of time otherwise the order or the prosecution is void. Certain offences may be prosecuted only with the consent of the Cabinet of Ministers (for example incendiarism). The Chancellor has the right to be supported by the police and the ordinary public prosecutors in fulfilling his tasks but he himself has to take the most the important decisions.
The Chancellor of Justice is a non-political civil servant appointed by the Cabinet of Ministers. The period of time for which he is appointed is not limited. He holds his office as long as he wants, up to the date when he retires with pension. Once appointed he serves any Government. He performs his duties strictly from a legal point of view. As a consequence of the said position it is possible for him to carry out his duties in a completely independent way. Ordinary prosecutors are obliged to prosecute any crime or offence according to the law. In the field of freedom of the press and freedom of expression the Chancellor however has been provided with certain discretion. He has a freer mandate to decide whether to prosecute or not. Sometimes it is wiser not to prosecute a minor offence of expression than to get a general discussion about the case in society as a whole. The legal ground for this discretion is already mentioned; it is the so-called instruction of freedom of media.
The duty of confidentiality protecting an informer is guaranteed while a breach of that duty is a crime under FPA and FLFE. The Chancellor is also the sole prosecutor in such criminal cases against editors, journalists and others who have disclosed what he has learned concerning the identity of an author or of a person who has communicated information.
5.2 Other duties of the Parliamentary Ombudsman and the Chancellor of Justice
The Parliamentary Ombudsman and the Chancellor of Justice are both supervisors of and special prosecutors against civil servants in cases of breach of duty or misconduct. The Parliamentary Ombudsman has also a special task to supervise that the public administration does not act against the freedom of information. Therefore the Ombudsman is looked upon as an important protector of the rules on the public nature of official documents. Both the Ombudsman and the Chancellor can act as prosecutors against civil servants acting against those rules and also against the rule in FPA and FLFE on prohibition to make inquires into the identity of authors and informers. It is a strong tradition that the Ombudsman and the Chancellor have the competence to – without a prosecution – make public statements criticizing a civil servant neglecting these rules. Some cases where the Ombudsman has made such critical statements are presented in an appendix to this report. Criticism is more usual than procecution.
5.3 Criminal liability rules
One important element of the system of safeguards is the structure of the penal provisions. For most kinds of freedom of the press and freedom of expression crimes the principle of double liability applies: to render the perpetrator liable in proceedings under these laws publicity or an uttering has to be a crime under both fundamental and ordinary statute law. The important constitutional implication is the following.
Criminal liability in this area may be diminished by a single amendment of statute law but cannot be increased without amending fundamental law as well.
The criminal liability lies, as mentioned above, on one single person, the editor, who must be named as such in a central register for all the country. A necessary consequence of the principle of editorial responsibility is that the responsible editor cannot escape liability by claiming that he had no knowledge of the content of the item or had not given his consent to its publication or production. The fundamental laws solve this problem by means of a rule of presumption, which cannot be disproved. There is an assumption that the responsible editor had knowledge of the content of an item and had consented to its publication. The responsibility is his (or hers), no matter if he (or she) read or saw the presentation in question before publishing.
5.4 Criminal proceedings and the Jury system
As earlier mentioned criminal proceedings involving punishment and confiscation on account of freedom of the press //and freedom of expression// offences can be instituted only by the Chancellor of Justice. Such cases are however rare. Libel and insulting words and behaviour come into the category of private litigation. The Chancellor may institute proceedings on account of such offences only provided they have been notified by the plaintiff for action and "legal proceedings are desirable having regard to the public interest". Such actions by the Chancellor is however extremely rare.
There are 25 out of totally some 70 country courts that are competent to try these cases. Unless both parties in the case renounce the option, the court proper proceedings are preceded by a hearing before a jury of nine persons (the only instance of trial by jury known to Swedish law). The county councils elect the jurors. The jurors shall be known for their soundness of judgment, independence and fair-mindedness. In the nomination process in the councils the political parties are very influential. This procedure of election of jurors could create problems in e.g. a case of libel where party political questions are of importance and where certain jurors may be disqualified. See the European Court of Human Rights case Holm ./. Sweden, Ser. A Vol. 279-A.
The Court procedure has a special character because of the Jury System. In Sweden the jury exists only in these cases. If the jury pronounces not guilty, the judgment is final, the proceedings are abandoned and verdict of acquittal pronounced. If the jury finds the accused guilty (this requires a majority of at least six) the matter is carried forward to the court, which is free to acquit or take a more lenient line than the jury, but not to pass a more severe judgement. The courts verdict can then be appealed to a higher court, regardless of whether it convicts or acquits. Such a court is however no more free than the country court to overturn the jury's verdict of guilt.
This system is also the system for claims for compensation of damages. It has to be decided by the Jury and the judges that a crime under FPA or FLFE has occurred otherwise there could be no compensation. So civil action here need a crime, it has no life of its own.
According to the so called instruction mentioned above, the Jury and the Courts, as well as the Chancellor, is under an obligation constantly to bear in mind that freedom of the press is fundamental to a free society. This is a leading principle also for the Chancellor and restricts his actions.
6 Trends and future problems
Sweden has a very strong in-depth regulated protection of the freedom of the press on a constitutional level. Together with the principle of access to official documents – also in the constitution - this gives a strong protection of the freedom of information.
This system – more and more sophisticated in its development – has been working for a very long time. Both the substances – provisions of the crimes, the catalogue of crimes – and the procedure are parts of the constitution.
These constitutional acts – FPA and FLFE – are in parts living documents, in other parts they are seldom used and very complicated.
During the 1990ies and still the system is expanding. Modern electronic media are now being brought in the FLFE on similiar terms as the more traditional forms of media. This ongoing expansion shows that there is a strong and general acceptance for this system in all the political parties in Parliament and within the society as a whole. However it is getting more and more hard to keep a closer understanding of the system. Only a few experts can master it fully.
The technical development is very fast and the strong internationalisation of the modern media is a complicating factor for the legislator and in the administration of justice.
You could ask if this system is coming to an end. Not at all that it will be abandoned but that it is getting to hard to develop it any further.
There is now a certain tendency to give the Chancellor a possibility to delegate some of his tasks to ordinary prosecutors. Child pornography has been brought out of FPA and FLFE and made a crime among others in the Criminal code. Hate speech and incitement in underground press or in modern electronic media used by extremist groups must be met effectively by the Chancellor and he will need success in court. With a very sophisticated system of protection of the freedom of expression this is a great challenge.
The system to protect certain rights of the personality is not so developed in detail in Swedish law as in several other European countries.
In the beginning of the 1990ies the Minister of Justice decided that a study should be done investigating how the protection of the personality could be strengthened in our legal system.
This study was presented in 1994. It consists of a background paper with a presentation of the right of privacy in some other legal systems and a preliminary discussion.
Some possible measures are mentioned and also the difficulties to find the solutions that also respect the principles in FPA and FLFE.
The starting point for the study is namely that new solutions must not put aside the constitutional principles in FPA and FLFE. The solutions must be found within the constitution.
Three proposals for further discussion were presented.
The first one would be to form a new crime – infringement of privacy – in the catalogue of crimes in FPA.
The second one is to widen the tasks of the Chancellor. He should have to institute litigation in favour of private persons not only in the public interest but also within a broader context favourable for the individual concerned. A new role for the Chancellor is presented for further discussion. But that discussion has not yet started.
The third one is to open for civil action in private cases for damages against a publisher even if there is nothing in the publication that constitutes a crime. The legislator should, following this proposal, use pure civil law provisions within the constitutional system of protection of the media. Maybe such a solution could be effective and successfully create a better balance, especially if ordinary judges dealt with the cases. But it does not seem very likely that our Parliament would decide to give up the system of a Jury. Sweden has had this system since 1815 as an exclusive part of our system of the protection of the press. It is not used in the ordinary criminal procedure. So the Jury will be kept. Any solution for the future seems to have to combine with the Jury system.
We have, however, in this report at least a starting point for a further discussion. But yet there are few signs of such a discussion starting.