Swedish Courts Research Articles

Limiting bureaucratic discretion? Analyzing the design and exercise of administrative judicial review in the welfare sector

AbstractThis article develops a framework for understanding how the design of administrative judicial review can circumscribe the discretion of different bureaucratic actors. The framework proposes that bureaucratic discretion is limited to a great extent if courts can (i) overturn bureaucratic decisions on substantive grounds, (ii) review decisions associated with high economic costs, and (iii) issue detailed instructions for how rulings are to be implemented. Applying the framework to the Swedish case, we first show that the legislative design of the judicial review process allows administrative courts to greatly limit the discretion of senior officials and street‐level bureaucrats. Second, we show that Swedish courts defer to the expertise of bureaucratic actors in the welfare sector by sparingly overturning decisions. However, when courts actually overturn decisions, they frequently limit bureaucratic discretion by issuing detailed judgments in high‐cost cases, possibly undermining the conditions for good governance.

When digitalization hit the court: Strategizing to turn turbulence into opportunities

Abstract During Covid-19, the pace of digitalization in industry and society increased. This article zooms in on the court system in Sweden and its response to this rapidly changing context. During the pandemic, the courts had encountered new expectations, and digital technologies had been implemented at speed. Suddenly online trials and digital delivery of court services became a reality. When the pandemic eased questions arose whether to return to business-as-usual or to continue on the new digital path. This article builds on a series of strategic workshops performed at the Swedish courts 2020–23 (with a total of 200 professionals attending). We found that digitalization had affected core work processes as well as the mindset and culture for further change. However, strategic alignment of different organizational components to fit the new reality is still needed in order for the courts to keep, and develop, the largest gains from digitalization: flexibility, efficiency, and accessibility.

Between street and digital capital? A qualitative study of judicial sentencing of persons convicted of online drug dealing in Sweden

PurposeDrug sales facilitated through digital communication on the surface web and on darknet cryptomarkets have increased during the past two decades. This has resulted in an increase in drug law enforcement efforts to combat these markets and a subsequent increase in judicial sentencing of people selling drugs online. The aim of this study was to analyze how Swedish courts describe sentenced sellers and how the courts apply case law.Design/methodology/approachThe empirical material consists of 71 sentencing documents produced by Swedish courts in cases of online drug selling between January 1, 2010 and January 1, 2020. In total, 99 sentenced persons occur in the documents. Using a qualitative research design, the authors analyzed the material through thematic text analysis.FindingsOverall, in their descriptions of online drug sale operations, the courts’ characterizations of the concepts of street capital and digital capital show a dichotomy. These forms of capital are situationally described as both aggravating and mitigating aspects in the application of case law, indicating that it may be fruitful to view both street and digital capital as resources used on contemporary drug markets in general.Originality/valueVery little research exists into how judicial systems describe and perceive the developing phenomenon of online drug sales. Using a relatively large sample from a decade of sentencing, the authors provide an analysis of how Swedish courts view and valuate capital forms in the online drugs trade.

Swedish Courts' Evaluations of Interpreter-Mediated Child Investigative Interviews.

Children can need the help of an interpreter if they are victims of a crime and need to be forensically interviewed in another language. Recent findings from practitioners raise concerns about the state of interpreter-mediated interviews with children. The current study aimed to explore how Swedish criminal courts reason when assessing interpreter-mediated and interpreter-absent (with children who are not fluent in Swedish) child investigative interviews. We conducted qualitative and descriptive analyses of written court verdicts involving 108 child victims who were evaluated to need an interpreter during their investigative interview. The courts frequently discussed issues regarding possible misinterpretations, language difficulties, and confusion. These perceived deficiencies in the interviews were often mentioned as a cause for assessing the child's testimony with caution and, in some cases, as lowering the evidential value of the child interview. Possible implications for children's legal rights are discussed.

Republic of Italy v Athena Investments A/S Before the Swedish Courts: Is There Still a Life After the CJEU’s Decision in Komstroy and PL Holdings?

The Swedish Court of Appeal considers the CJEU’s decisions in Republic of Poland v pl Holdings Sàrl and Republic of Moldova v Komstroy LLC regarding the validity of the arbitration clause included in Article 26 of the Energy Charter Treaty for intra-EU arbitrations, and recalls its request for a preliminary ruling in an ongoing challenge proceeding. Following up on our 2021 EILA Rev case-note, covering the parties’ submissions prior to the Court of Appeal’s request for a preliminary ruling, we further explore the parties’ recounts of the CJEU’s recent decisions and the implications under Swedish law. The Svea Court of Appeal is the first Swedish court to decide on the validity of Article 26 of the Energy Charter Treaty in intra-EU arbitration.

Letters of Friedrich Christian Weber to John Robeson from Russia, 1718-1719

The article examines the correspondence of the Hanoverian resident in Russia Friedrich Christian Weber over the period from January 1718 to the spring of 1720. The set of letters includes over two hundred reports written by the diplomate in French and currently deposited in the French Manuscripts collection of the Bodleian Library of the University of Oxford. The goal of this article is to present this source to the scholarly audience and to offer its preliminary analysis. Although Weber was formally a Hanoverian resident, he represented the interests of England, because the Elector of Hanover, since 1714, was also the monarch of Great Britain. The addressee of Weber’s letters was John Robethon, George I's diplomatic secretary. The article examines various aspects of Weber's diplomatic activities, including the methods he used to collect information in Russia and send it to England, such as bribing Russian officials, resorting to secret agents, ciphers, sending dispatches “under the cover, and others. The letters also reflect the tasks set before him by his government, first of all, investigating the nature of relations between the Russian court and the Jacobites and monitoring the progress of the Congress of Åland, including the views of the Russian and Swedish courts regarding the prospects of a separate peace treaty between them. The article also considers Weber’s approach to the analysis of the international situation and the political situation in Russia. He concluded that a separate treaty between Russia and Sweden was highly unlikely and sought to convey this to his addressee. In spite of this the British government continued to view the ongoing negotiations at Åland as a threat. Beginning in May 1718, the Court of St. James repeatedly instructed Weber to find ways to disrupt Congress. The set of letters shed light on the history of Russian foreign policy at the final stage of the Great Northern War on the eve of the conclusion of the Peace of Nystad.

Ordinary people, criminals, addicts and recreational users: Swedish court of law descriptions of persons sentenced for online drug purchases.

Background: The aim of this study was to analyze how Swedish courts describe persons sentenced for purchasing illicit drugs online. Methods: Qualitative analysis of naturally occurring data through 201 sentences that included 248 individuals sentenced for having purchased drugs online between January 1 2010 and January 1 2020. Results: The analysis resulted in the construction of four ideal types regarding the described characteristics of the sentenced persons; the ordinary person, the recreational user, the addict and the criminal. The courts operate with a notable dichotomy between traditional drug markets and online drug markets, that can be understood in relation to descriptions of Bourdieusian capital forms, specifically street capital and digital capital. Conclusion: Descriptions relating to street capital were of larger interest to the courts compared to digital capital, although there were examples of when the courts argued that uses of digital capital should be viewed as an aggravating circumstance. The courts largely held a dichotomous view of online and offline drug markets that focus on street-based criminality, which may have implications for how emerging digital drug markets are responded to by drug law enforcement and judicial systems.

The Principle of Proportionality, Article 8 of the ECHR and Swedish Care Orders in Cases of Neglect. A Sketch of a Theoretical Framework

This study conducts an analysis of the rights in article 8 of the ECHR and the application of the proportionality principle when Swedish care orders may be regarded as a necessary interference in family life. The study has been based on an interdisciplinary approach. Text documents were studied through socio-legal methods and perspectives, by combining knowledge from legal sources and social sciences research through a content analysis derived from formal and substantive legal certainty. The article concludes that reasoning in Swedish administrative courts should routinely consider proportionality in cases of neglect, and sets out to sketch a theoretical framework for the principle of proportionality in decisions on care orders. The results show that, since decisions in child welfare cases cannot be made completely uniform and predictable, the focus of decisions in social child welfare work must be to satisfy the objectives and values of substantive legal certainty, instead of unrealistically striving for formal legal certainty through equal treatment and predictability. The results also show that, by requiring those who exercise public authority to present their assessments based on proportionality, new demands are made for the quality and efficiency of involuntary out-of-home placements. Child welfare investigations should nowadays include impact assessments that clarify the advantages and disadvantages of the care in relation to the risk of harm from the original home conditions. Abuse and neglect in out-of-home placements will therefore be of growing importance in decisions on care orders in the future.

Prosecutors’ Habituation of Emotion Management in Swedish Courts

The article examines the professional emotion management underlying prosecutors’ work in court. Building on interviews and observations of forty-one prosecutors at five offices in Sweden, and drawing on sociological theories of emotion habituation, we analyze the emotion management necessary to perform frontstage (in court) professionalism as a prosecutor. We divide our analysis into three key dimensions of habituation: the feeling rules of confidence and mastering anxiety associated with an independent performance; the feeling rules of emotional distance and a balanced display associated with performing the objective party; and the playful and strategic improvisation of feeling rules associated with relaxed emotional presence. The routinization of feeling rules and the gradual backgrounding of related emotion management leads to habituation. Our findings enhance understanding of emotion management skills as part of tacit knowledge conveyed in the legal professions where emotion-talk and emotional reflexivity are little acknowledged. The article also contributes to the largely US-dominated previous research by adding a civil law perspective on prosecutorial emotion management.

Criminogenic problem gambling: a study of verdicts by Swedish courts

ABSTRACT This study explored the characteristics and consequences of criminogenic problem gambling in Sweden. All verdicts (N = 283,884) delivered by Swedish general courts between 2014 and 2018 were subjected to a key word search for the term ‘problem gambling’ and its synonyms. Verdicts that met the search criterion (n = 1,232) were inspected manually and cases in which problem gambling clearly was the main cause for committing crime (n = 282) were analyzed quantitatively. The most common types of crimes were fraud and embezzlement (67%). Each year around 400 individuals, companies, and organizations became victims of gambling-driven crimes, with nonprofit organizations being the most severely affected. Those convicted for such crimes were older, and to a greater extent female and first-time offenders, compared to national statistics on crimes in general. This suggests that in Sweden, middle-aged women are a high-risk group for severe gambling problems that should be monitored particularly closely by gambling companies for indications of problematic gambling. We conclude that although crimes driven by problem gambling are relatively rare in the justice system, they bring considerable harm to victims and the perpetrators themselves.

Drizzling sympathy: Ideal victims and flows of sympathy in Swedish courts

By connecting sociological perspectives on sympathy with the concept of ‘ideal victims’, this article examines how sympathy forms and informs legal thought and practices in relation to victim status in Swedish courts. In its broadest sense, sympathy can be understood as an understanding and care for someone else’s suffering and in many contexts victimization and sympathy are densely entangled. However, since ideals of objectivity and neutrality prevail in court, emotional norms are narrow and sympathy is met with suspicion. Drawing on ethnographic fieldwork conducted in Swedish courts, I argue that while sympathetic feelings are mostly backgrounded, they are still a central part of court proceedings and deliberations. The main findings suggest that prosecutors and victims’ counsel use ‘sympathy cues’ to evoke the judges’ concern for the complainants and to facilitate their empathic imagination of the complainant’s situation. In relation to this finding, judges engage in emotion work in order to not be affected by these sympathy cues. The study also shows that in encounters with ‘ideal victims’ who perform a playful resistance to their victimization, legal actors show sympathy more freely and accept moments of temporary relief from the normal interaction order in court.

Generalization in Legal Argumentation

ABSTRACTWhen interpreting a natural language argument that generalizes over a contextually relevant category, audiences are likely to activate the category prototype and transfer its characteristics onto category instances. A generalized argument can thus appear more (respectively less) persuasive than one mentioning a specific category instance, provided the argument’s claim is more (less) warranted for the prototype than for the instance (positive and negative prototype effect). To investigate this effect in legal contexts using mock-scenarios, professional and lay judges at Swedish courts evaluated the persuasiveness of arguments giving a generalized or a specific description of an eyewitness. The generalized version described the witness either as an alcohol-intoxicated person or as a child, while the specific version varied both the amount of alcohol consumed (two vs. five glasses of wine) and the child’s age (four vs. 12 years). To investigate the effect of legal expertise on argument selection, moreover, law and social science students evaluate the persuasiveness of both argument versions. Though we observed statistically significant prototype effects as well as expertise effects, results were mixed and sometimes ran counter to normative expectation.

Article 17(3) of the EU Antitrust Damages Directive and the Possibility for National Competition Authorities to Assist in the Quantification of Harm

One of the explicit aims of the Directive on competition damages actions (the Directive) is to make the quantification of harm resulting from violations of European Union (EU) competition rules easier for damages claimants. One of the several ways envisioned by the Directive to achieve that aim is Article 17(3), according to which national competition authorities (NCAs) may assist national courts in quantifying the harm caused by anti-competitive conduct. In this paper, I focus on the transposition of Article 17(3) of the Directive in Sweden and make the argument that Sweden has not correctly implemented the Article in Swedish law. The topic is admittedly rather limited at first glance, but a discussion on the (non-)transposition of Article 17(3) of the Directive in Swedish law offers three significant insights which make pursuing it worthwhile. Firstly, it informs us about the nature and degree of interaction of the Swedish Competition Authority (SCA) with Swedish courts and tells us something about the relationship between the two. Secondly, it reveals some important procedural differences between private and public enforcement of EU competition rules in Sweden and exposes a certain tension between national rules of procedure, on the one hand, and the effective application of EU competition rules in Sweden, on the other. “Effectiveness” is a requirement that follows both from well-established case law of the Court of Justice of the EU (CJEU) and from the Directive itself. As a result, the second insight inevitably leads to a discussion on whether certain aspects of Swedish procedural law may be impeding the effective application of EU competition law. Thirdly, it explores different courses of action for Swedish courts and claimants that may find, like this author, that Article 17(3) has not been implemented correctly in Swedish law.

Extraterritorial Criminalisation and Non-intervention: Sweden’s Criminal Measures against the Purchase of Sex Abroad

This article considers the limits of extraterritorial criminalisation under international law in the context of a recent legislative proposal by the government of Sweden to impose criminal measures against the purchase of sexual services abroad. The article first presents the proposal and then a specific legal objection raised against it, namely that allowing Swedish courts to try purchases committed abroad irrespective of local law is inconsistent with the principle of non-intervention under international law. The substance of this objection is discussed against the background of general descriptions of the concepts of jurisdiction and non-intervention under international law. It is concluded that the meaning of the principle of non-intervention may have been overstated.

Impacts on efficiency of merging the Swedish district courts

Judicial courts form a stringent example of public services using partially sticky inputs and outputs with heterogeneous quality. Notwithstanding, governments internationally are striving to improve the efficiency of and diminish the budget spent on court systems. Frontier methods such as data envelopment analysis are sometimes used in investigations of structural changes in the form of mergers. This essay reviews the methods used to evaluate the ex post efficiency of horizontal mergers. Identification of impacts is difficult. Therefore, three analytical frameworks are applied: (1) a technical efficiency comparison over time, (2) a metafrontier approach among mergers and non-mergers, and (3) a conditional difference-in-differences approach where non-merged twins of the actual mergers are identified by matching. In addition, both time heterogeneity and sources of efficiency change are examined ex post. The method is applied to evaluate the impact on efficiency of merging the Swedish district courts from 95 to 48 between 2000 and 2009. Whereas the stated ambition for the mergers was to improve efficiency, no structured ex post analysis has been done. Swedish courts are shown to improve efficiency from merging. In addition to the particular application, this work may inform a more general discussion on public service efficiency measurement under structural changes, and their limits and potential.

Before and After the Weser Case: Legal Application of the Water Framework Directive Environmental Objectives in Sweden

Abstract The EU Water Framework Directive (WFD) prescribes environmental objectives and an adaptive water governance system. This article analyses the Swedish implementation of the WFD through a review of high-profile Swedish court cases regarding the application of the WFD environmental objectives in individual authorisation processes for water operations. The selection of court cases represents both the time before and after the Court of Justice of the European Union’s Weser case in 2015. The results indicate an inertial tendency in the legal application of the WFD environmental objectives in Swedish courts, including a reluctance to fully apply EU law as interpreted by the CJEU. The overall conclusion is that traditional legal certainty aspects often trump flexibility and a high level of environmental protection as desired in the adaptive water governance system of the WFD. This raises questions about judicial preconceptions and the procedural autonomy of the Member States vis-à-vis the ‘effet utile’ of EU law through judicial implementation.

Legal Silencing of Minority Legal Culture: The Case of Roma in Swedish Criminal Courts

The traditional Swedish monocentric and uniform legal model is challenged by an increasingly diverse contemporary legal situation associated with the development of a multicultural and pluralistic society. How Swedish criminal courts handle this in terms of understanding and framing minority legal culture is addressed by looking into what role is given to this culture in the courts’ construction of facts and in sentencing. A particularly interesting case in this regard is the national minority Roma, seen as an example of a Swedish group that brings other normative systems into the state legal system through their distinct legal culture. Through an investigation of written verdicts, it is demonstrated that accounts of Roma legal culture face ‘legal silencing’ by the court – it is either not given significance or is given a form of attention that essentializes and alienates the culture. An analysis into why this legal silence occurs and into the possibilities for taking legal culture into account is provided. It is argued that there are structural barriers hampering the courts from taking legal culture into account but also that these structures can be changed for betterment to ensure equality before the law and hence legitimacy in a multicultural society.

Tala tillbaka, tala som ”other” i domstolsnarrativ om våldtäkt

Like a prostitute, a married woman who charges her husband with rape has a special position in defending herself against doubts about coercion and at the same time vindicating her agency. This also applies to the woman who initially agrees with an unknown man to a sexual act which turns into a rape. This article investigates how women in such positions figure in historical and legal contexts, and how they have voiced/expressed themselves in courts in relation to dominant narratives about rape. Out of a larger sample of twentythree rape cases in Swedish courts, all attracting extensive media coverage, I have selected three cases for a detailed study. The examples are not representative, but they allow for in-depth discussions. The selected cases relate to the legislation that applied just before the 1998 Crime Committee and until the 2005 Act. The cases are from the late 1990s until 2007, a period of major societal changes that also affect perceptions of gender and violence. The study examines the presence in Swedish courts of two master narratives about sexual violence that, according to feminist research, dominate in the Western world, and how female plaintiffs respond to these verbally, by silence, and by bodily expression. The first, dominant since the 1980s, is “negate or blame”, that is, rape is understood to be either “just sex”, or the woman carries the blame. The second is “rape trauma”. The analysis relates to bell hook’s book Talking back. The perspective is widened with reference to Michael Bamberg, who argues that even though one always talks within dominant narratives, elements from these are picked up and an alternative speech is improvised. In different ways, women try to navigate against the dominant narratives of negate or blame and of trauma. They may not in full meet the criteria for talking back, but they are in different ways aware that their talk and performances are restrained, which is also a kind of resistance.

A bootstrapped Malmquist index applied to Swedish district courts

This study measures the total factor productivity (TFP) of the Swedish district courts by applying data envelopment analysis to calculate the Malmquist productivity index (MPI) of 48 Swedish district courts from 2012 to 2015. In contrast to the limited international literature on court productivity, this study uses a fully decomposed MPI. A bootstrapping approach is further applied to compute confidence intervals for each decomposed factor of TFP. The findings show a 1.7% average decline of TFP, annually. However, a substantial variation between years can be observed in the number of statistically significant courts below and above unity. The averages of the components show that the negative impact is mainly driven by negative technical change. Large variations are also observed over time where the small courts have the largest volatility. Two recommendations are: (1) that district courts with negative TFP growth could learn from those with positive TFP growth; and (2) that the back-up labour force could be developed to enhance flexibility.

Serving Two Masters: CJEU Case Law in Swedish First Instance Courts and National Courts of Precedence As Gatekeepers

The paper seeks to determine to what extent lower national courts are influenced by higher national courts in their application of CJEU case law. In doing so, we study and compare references to CJEU case law in the jurisprudence of Swedish courts of first instance and courts of precedent. We find that Swedish courts of first instance generally speaking identify and apply relevant CJEU case law independent of whether this has been dealt with by Swedish CoP or not. However, when these courts find and cite a Swedish court of precedent decision concerning an issue relating to EU law, they do not consistely consider relevant CJEU case law.