Strasbourg, 27 February 2008

CCJE/REP(2008)36
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Sweden

Part I: Preparation of the judicial decision

Question 1

Is there a specific model to be followed in drafting judicial decisions?

All courts: No

Can each individual judge choose his own style of drafting his decision?

All courts: Yes, but most judges choose to use almost the same style of drafting a decision. A judicial decision needs however to contain certain information.

Question 2

Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?

All courts: A majority decision is equally effective and binding.

In a two or even more member panel, does the president or most senior judge have a second or casting vote?

The general courts:

    a) Criminal cases – The majority vote is binding. If one opinion has received as many votes as another opinion, including the president’s vote, the lightest outcome will be binding. If it is impossible to decide which outcome is the lightest, the president has a casting vote.

    b) Civil cases - The majority vote is binding. If one opinion has received as many votes as another opinion, including the presidents vote, the president has a casting vote.

The administrative courts:

In first instance there is one judge (president) and three lay judges. If one opinion has received as many votes as another opinion, including the president’s vote, the president normally has a casting vote. If the case has an element of criminal law, see above a).

Question 3

Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?

All courts: A concise approach is normally considered sufficient in the written decision.

Question 4

In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)

The general courts:

A judicial decision starts with the name of the parties and is followed by the judgement. After that comes information about the claims, objections and evidence. This is followed by the reasons of the court, including the application of the legal principles to the accepted facts. Finally there is information about how to appeal.

The judicial decision needs to contain following information.

    - The name of the court. Time and place for the announcement of the decision.

    - The parties and lawyers name

    - The sentence

    - The claims and objections and the circumstances.

    - The reasons of the court

    - Information about the possibility of appeal

The administrative courts:

First comes “the head of the decision” (facts about the parties and the appealed decision), then the recital (claims and reasons), then the reasons of the court (legislation, factual background, evidence, application of the legal principles to the accepted facts) and finally the judgement and information about how to appeal.

How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?

The general courts:

An appeal/a Supreme Court decision is drafted almost in the same way as a first instance decision. The appeal/supreme court decision is however often shorter than the first instance decision.

In certain cases, 'leave to appeal' (permission) is required for the court of appeal to consider an appeal. In other cases and if a leave to appeal is received, there will be a rehearing on the case.

Leave to appeal is required for a case to be consideredt. This is granted by the Supreme Court itself, basically only in those cases where it is important to establish a judgment that may provide guidance for the Swedish district courts and courts of appeal. Such judgments are called 'precedents'. If you consider that the court of appeal has adjudicated incorrectly in a matter, this is consequently not sufficient for leave to appeal to be granted. This means that the court of appeal is in practice the final instance for most cases.

The administrative courts:

The same as the general courts.

Question 5

Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?

Yes

Question 6

Could you describe precisely how the decision is transmitted to the parties?

The general courts:

In some cases the judgment is pronounced orally after the hearing and the deliberation. In that situation the court has to send a written decision to the parties by mail within a week after the hearing. In other cases the court sends the decision some time after the hearing.

The administrative courts:

In administrative courts the proceeding normally is in writing. The court normally sends the decision by mail. The court can deliver judgement right after an oral hearing. In that situation the court has to send the decision by mail to the parties within a week.

Is the judicial decision binding only on the specific litigants or does it affect the public in general?

All courts:

The judicial decision is binding only on the specific litigants. A judicial decision by an administrative court can in some cases affect the public in general.

Does your country acknowledge a difference in judicial decisions in personam and in rem?

No.

Question 7

How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?

The general courts: Yes, for example you can use a decision as an executive order.

The administrative courts:

You can use a decision as an executive order. If a municipality refuse to execute a decision giving a person a right to e.g. social service or a special apartment for disabled persons, the county administrative board can apply at the county administrative court and ask the court to impose a special fee on the municipality. This fee can amount to 10 000 SEK – 1 000 000 SEK (about 1 000 Euro – 100 000 Euro).

Question 8

Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?

All courts: Sometimes judicial decisions are handed down in open court. The public/journalists can not be excluded, only in very special cases (for example for the security of the state).

Question 9

To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?

The general courts:

The judicial decisions are normally public. Personal data, for example about an injured person, can in some cases be classified as secret.

The administrative courts:

A judicial decision is a public document. Litigants names, personal code number, addresses and other personal details necessary to the decision is normally public. I some special situations there is a possibility not to mention such data. In delicate matters, e.g. psychiatric matters, you try to be careful about what you write in the decision.

Question 10

Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?

All courts:

Yes, normally all judicial decisions are available. Some information in the judicial decision can be classified as secret. The sentence is always public. Section 2 of Tryckfrihetsförordningen compared with Section 12, sub-section 4 of Secrecy act.

Question 11

Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?

The general courts:

Yes, some appeal and supreme court cases are available on the internet. A few district courts also published decisions on the internet.

The administrative courts:

Judicial decisions from The Supreme Administrative Court and some decisions from courts of appeal are available on the internet.

Part II: Evaluation of the judicial decision

Question12

Is a system of evaluation of quality of justice in force in your country?

Questions of evaluation of quality of justice are discussed in Sweden. The government and some authorities work with these questions.

Question 13

Does this evaluation include/envisage the evaluation of the quality of judicial decisions?

The work that is proceeding includes the evaluation of the quality of judicial decisions.

Question 14

If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:

    · legal basis:

    · identification of the agencies that are responsible for the process:

    · parameters that are evaluated:

    · methods by which each parameter is evaluated:

Question 15

What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?

    · advantages:

    · disadvantages:

Question 16

In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?

Question 17

Is a system of evaluation of quality of each of the following in force in your State:

· professional performance of police? yes □ no □x

· professional performance of public prosecution services? yes □ no □x

· professional performance of lawyers? yes □ no □x

· enforcement of judgements? yes □ no □x

· efficiency of ministry of justice services in general? yes □ no □x

· quality of legislation? yes □ no □x



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