Swedish Supreme Court Research Articles

A case study on War Poses

Abstract This article delves into Sweden's evolving legal response to international crimes, notably focusing on the 2021 War Poses case before the Swedish Supreme Court. The case involves an Iraqi asylum-seeker charged with violating the personal dignity of several persons, presumed to be deceased, during a 2015 non-international armed conflict in Kirkuk, Iraq. A key contention is whether deceased individuals can be considered “protected persons” under Swedish war crimes legislation. The article examines the Swedish Supreme Court's decision, which deems deceased individuals as protected persons, drawing on the Rome Statute's Elements of Crimes. It examines the complexities surrounding the application of international humanitarian law (IHL) to cases involving the deceased and explores potential misinterpretations arising from the Court's brief and ambiguous reasoning. As Sweden grapples with the complexities of international criminal law, the article advocates for clarity and comprehensive discussion to ensure that justice is served while upholding accurate and harmonized definitions of fundamental concepts of IHL.

Can criminal justice be predicted? Using regression analysis to predict judges’ decisions on petitions for new criminal trials

Predictability of legal decisions is usually considered a prerequisite for the rule of law, following the maxim ‘like cases should be treated alike’. Yet, this presupposes that the case outcome can be predicted based on the merits of the case, rather than other factors. The purpose of this study was to test whether and to what extent legal decisions on petitions for new criminal trials can be predicted on the basis of other fairly superficial criteria that one could access without even reading the case file, e.g. which Court decided, whether the applicant had legal representation etc. To this end, all petitions for new criminal trials submitted to the Swedish Supreme Court and the six Courts of Appeal in the time period 2010–2020 (n = 3915) were reviewed. This data formed the basis of a regression model which was then used to predict decisions regarding petitions in 2021. On the basis of access to legal representation and crime type, the regression model predicted accurately 100 % of the decisions made in 2021. This raises questions about the evidentiary basis for the decisions and also the role of judges in situations where their decisions are fully predictable.

'Nevertheless, She Persisted': Gender and Dissent on the Swedish Supreme Court

'Nevertheless, She Persisted': Gender and Dissent on the Swedish Supreme Court

Girjas Reindeer Herding Community v. Sweden: Analysing the Merits of the Girjas Case

For the first time in the Swedish Supreme Court, a small Sami reindeer herding community has won an important victory affirming the community’s small game hunting and fishing rights. Because of protracted use and the concept of immemorial prescription, the Court recognised the community’s exclusive hunting and fishing rights, including the right to lease these rights to others. Such leases have long been prohibited by legislation and the State has retained its powers to administer such leases. This case signifies a considerable development in the area of Sami law. In its decision, the Supreme Court made some adjustments to the age-old doctrine of immemorial prescription, and provided insights into how historic evidence should be evaluated when the claimant is an Indigenous people. A common motivator for these adjustments is an enhanced awareness of international standards protecting Indigenous peoples and minorities. Even ILO Convention No. 169 – the only legally binding convention concerning Indigenous rights, but which Sweden has not yet ratified – is relevant when it comes to evaluating Sami customary uses. The Court addressed the problem of gaps in the historical material and used evidence from other parts of Swedish Lapland and adjacent time-periods, making reasonable assumptions to fill in these gaps. The Court imposes on the State the burden of proof regarding the extinguishment of already established Sami rights, as well as proof that extinguishment by legislation or expropriation, is “clear and definitive”. These conditions were not met in this case.

AG Szpunar advises CJEU to rule that car leasing companies making available vehicles with built-in radio systems are not ‘users’ that perform a communication to the public

Opinion of Advocate General Szpunar in C-753/18 STIM and SAMI v Fleetmanager Sweden AB and Nordisk Biluthyrning AB, EU:C:2020:4, 15 January 2020 In his Opinion in STIM and SAMI, Advocate General (AG) Szpunar considered that car leasing companies are not ‘users’ that communicate works to the public within the meaning of Article 3(1) of Directive 2001/29/E (InfoSoc Directive) and Article 8(2) of Directive 2006/115/EC (Rental Rights Directive). The role of car rental companies merely consists of providing cars equipped with radio receivers that have been pre-installed by the respective car manufacturers. In 2018, the Swedish collective management organization STIM and the Swedish Artists and Musicians’ Interest Organization, SAMI, brought separate proceedings against two companies that operate in the automobile leasing/renting industry. Both cases ensued from missed payment (since 2014) of yearly licensing fees to STIM and SAMI. Following an appeal to the Swedish Supreme Court, this stated that, according to the case law of the Court of Justice of the European Union (CJEU), it is apparent that a communication to the public may take place—in the manner envisaged by Article 3(1) of the InfoSoc Directive—when transmissions are made by means of technical equipment to a nearby public (e.g. in a hotel, café, rehabilitation centre or a spa). Furthermore, the CJEU has held that hotel operators carry out a communication to the public under Article 8(2) of the Rental Rights Directive when hotel rooms are equipped with phonograms available in digital or physical form and which can be played or intercepted (Case C-162/10 Phonographic Performance Ireland, EU:C:2012:141). Nonetheless, the CJEU has also come to the opposite conclusion regarding transmission of phonograms in a dentist’s waiting room (C-135/10 Società Consortile Fonografici, EU:C:2012:140). The Supreme Court was unsure of how to treat the providers of rental cars. It, therefore, decided to stay the proceedings and ask the CJEU to clarify the scope of communication to the public. In particular, the Swedish Supreme Court asked the Court of Justice to answer the following questions:

A Day in the Life: Aryanization Before the Swedish Supreme Court 1941–42

AbstractThis article examines the jurisprudence of the Swedish Supreme Court during WW2 in disputes between exiled Jewish business owners and the Nazi-appointed administrators of their companies over the rights to the enterprises’ assets in Sweden. Contrary to assertions in previous scholarship, this article argues that the judgments of the Supreme Court were dictated neither by moral indignation in the face of the treatment of Jews in the Third Reich, nor by political considerations in a time of war. Instead, they were based on principles of private international law that predated, and outlived, the Third Reich. The outcome of the cases hinged upon whether the claim to Swedish assets arose before or after the date when the enterprise was placed under forced administration. If before, the claims of the Jewish owners were in principle successful; if after, they were not. This reasoning was well in line with both previous and subsequent case law on confiscations effected abroad. The article therefore concludes that the Swedish Supreme Court's judgments on Jewish assets in Sweden should be viewed not as outflows of extrajudicial considerations, but rather as failures to recognize political or ethical responsibility.

Swedish Supreme Court holds that painting based on prior photograph is new and an independent creation

Swedish Supreme Court holds that painting based on prior photograph is new and an independent creation

Swedish Case Note on the Penalty Clause Decisions by the UK Supreme Court

Abstract: The UK Supreme Court has recently decided two interesting cases on harshremedies for breach of contract (the penalty doctrine). I will give approximate-descriptions of the cases and compare the outcome in the UK Supreme Courtwith the likely outcomes and reasonings as if the cases were tried by the SwedishSupreme Court. My conclusion is that the outcomes would be similar. The reasoningswould differ slightly, but not much. The applicable types of sources of law, however, differ considerably.

Swedish Supreme Court defines scope of freedom of panorama

Swedish Supreme Court defines scope of freedom of panorama

Legal Assessments of Child Victims of Human Trafficking for Sexual Purposes.

The present study investigated how Swedish district court judges assessed child victims' credibility and the reliability of their testimony in cases of alleged human trafficking for sexual purposes. Court files from 12 different cases, involving 16 alleged child victims (aged 13-17 years old), all of them girls, were qualitatively analyzed with particular attention paid to how the judges described credibility and reliability. Results indicated that, although the judges' assessments to a large extent were based on the Swedish Supreme Court's criteria for credibility and reliability, they were applied somewhat arbitrarily and subjectively. They were also applied as if obvious and grounded on shared experiences, although their meaning was never explored. The way that credibility was assessed may also reinforce gender and victim stereotypes. Moreover, there seems to exist a confusion surrounding the credibility and reliability concepts, as they were sometimes used interchangeably despite the intention that they are two different assessments. Overall, an apparent need exists to increase judges' awareness that their subjective impressions should decrease when legitimizing judicial decisions. Copyright © 2016 John Wiley & Sons, Ltd.

The legal basis of Sami reindeer herding rights in Sweden

This article discusses the basis of the Sami right to pursue reindeer herding, and how that right has been regulated in law. Two aspects of this right are particularly significant: establishing which land areas are covered by the reindeer herding right and clarifying what the right entails. The legal institution of ‘immemorial prescription’ has long been considered highly significant in judicial trials concerning the reindeer herding rights. In the wake of a ruling by the Swedish Supreme Court, that picture has now changed. Keywords: Sami reindeer herding, customary law, immemorial prescription, occupation, Swedish Supreme Court. Citation: Arctic Review on Law and Politics, vol. 4, 1/2013 pp. 43–61. ISSN 1891-6252

Masculinities, Violence and Self-defence in Swedish Supreme Court Cases

This article concerns the interaction between masculinity norms expressed in case-law from the Swedish Supreme Court and the legal construction of the right to self-defence in Swedish criminal law ...

Game of Thrones: A Narrowing Immunity?

When international commercial arbitration is used between private parties and sovereign-related entities, the doctrine of sovereign immunity provides an additional barrier to enforcing any resulting arbitral award. This article focuses on three recent decisions (from the Swedish Supreme Court, the Singapore Court of Appeal and the Privy Council of the United Kingdom) regarding the enforcement of arbitral awards against, respectively, Russia, the Maldives and a state-owned entity of the Democratic Republic of the Congo. These cases demonstrate a shift towards the restrictive approach to sovereign immunity and, consequentially, the rising utility of international commercial arbitration.

The legal basis of Sami reindeer herding rights in Sweden

This article discusses the basis of the Sami right to pursue reindeer herding, and how that right has been regulated in law. Two aspects of this right are particularly significant: establishing which land areas are covered by the reindeer herding right and clarifying what the right entails. The legal institution of ‘immemorial prescription’ has long been considered highly significant in judicial trials concerning the reindeer herding rights. In the wake of a ruling by the Swedish Supreme Court, that picture has now changed.Keywords: Sami reindeer herding, customary law, immemorial prescription, occupation, Swedish Supreme Court.Citation: Arctic Review on Law and Politics, vol. 4, 1/2013 pp. 43–61. ISSN 1891-6252

The practical potential of the DCFR Judgment of the Swedish Supreme Court (Högsta domstolen) of 3 November 2009, Case T 3–08

The judgment of the Swedish Supreme Court made on 3 November 2009 introduces a path-breaking decision for the application of DCFR in the judicial practice. It is the first recognized judgment that has used its model rules as a gap-filler on the grounds of domestic private law system. The commentary deals with the theoretical basis of this reasoning, as well as with its further implications for the comprehension of the practical importance of DCFR. In this respect, special attention has been paid to the potential use of its non-binding content as an interpretative pattern, chosen solely imperio rationis by the European judiciary. Such a point of reference may be important both for the already existing domestic private law and EU legislation, providing a common set of concepts and values.

Experts' beliefs about child testimony: Do they match the research or the recommendations?

The present study examines prosecutors', child investigators', and plaintiff aids' (i.e., important actors during alleged child sexual abuse [CSA] investigations) beliefs about children's testimonies. More specifically, the aim was to examine whether these experts agree (a) with praxis from, for example, the Supreme Court regarding the use of certain credibility criteria when evaluating the reliability of CSA reports; and/or (b) with findings from research on issues of child testimony. The participants (n = 206) were asked to rate how detailed, consistent, and spontaneous they believe children are in their CSA reports; the effects of exposure to repeated abuse; and to indicate their opinion on the optimal number of child interviews. Due to the low response rate, results can only be discussed in terms of possible indications, however, it is interesting to note that the experts had similar opinions on the issues investigated, opinions that were also rather in line with research findings on children's testimony. Although they receive support from the research, some of these opinions are not in line with recommendations made by the Supreme Court or the “Pre-trial Order.” More research is needed to further examine: (a) the reliability of the credibility criteria recommended by the Swedish Supreme Court; (b) how frequently the Swedish courts actually refer to these credibility criteria; and (c) different experts' (with different functions in the legal process) opinions on these criteria.

Proper Notice: Common Problems in Interpreting Article V(l)(b) of the New York Convention in Light of the Lernmorniiproekt Decision of the Swedish Supreme Court

Once viewed as a peripheral issue, challenging arbitral decision on the basis that a party did not receive proper notice has seen increased activity in arbitrations, particularly concerning final awards rendered pursuant to the rules of Eastern European arbitral institutions. These challenges are not accidental – they arise in response to a Russian procedural tradition where the judge makes a preliminary ruling on the sufficiency of the submissions prior to commencement of arbitration proceedings. Whereas the New York Convention sought to harmonize national differences, the silence of the New York Convention on what constitutes proper notice provides room for confusion. The article underlines such anomalies as they become evident in Lernmorniiproekt, a Swedish Supreme Court decision from 2010, where the enforcement courts applied the forum’s standard of due process to review the proper notice requirement in respect to national litigation standards. This practice is not unique to Sweden and the problematic issues emerging from these decisions could be easily remedied through a uniform standard, which incorporates an examination of a shifting burden of proof, the presence of time limits and the extent of deference afforded to the conduct of the arbitration under the rules to which the parties have agreed. In relying on the confidential nature of commercial arbitration, the article takes a strong position against the overreliance of domestic litigation standards to review whether proper notice was given and the use of the forum’s standard of due process.

The 2011 Swedish Supreme Court Ruling: A Turning Point for Saami Rights

In 1998 a lawsuit was filed at the Umea District Court, Sweden, by 120 landowners in Nordmaling against the three Saami villages of Ran, Vapsten and Umbyn. The complaint concerned the entitlements to lands in the territory of Nordmaling, owned by the plaintiffs but habitually accessed by the Saami as winter pasture for their reindeer. The question was whether the Saami villages fulfilled the legal requirements of use over rime and had the right to herd according to customary right. In 2006 the landowners lost their claims in the District Court, which ruled in favour of the Saami, establishing the Saami villages' customary fight in the disputed territories. The landowners appealed to the Court of Appeals in Ovre Norrland, but lost again in 2007. The case was then appealed to the third and highest legal instance, the Swedish Supreme Court, which reached its verdict on 27 April 2011, ending the 14-year-long legal process. The Supreme Court upheld the previous verdicts, ruling that the Saami reindeer herders are entitled to graze their animals in the territory of Nordmaling according to the principle of customary rights. This is the first major legal victory for the Saami after decades of defending their right to herd reindeer on privately owned lands. Had the three Saami villages lost access to these winter pastures, the herders would have had to choose either to stop their herding practices overall, or to reduce significantly the number of animals, putting at risk the survival of their livelihood and culture as pastoralists over the long term. Besides granting herding rights in Nordmaling to the herders of Ran, Vapsten and Umbyn, this final ruling provides important guidelines about Saami land rights more broadly. The court confirmed that customary fights form the strongest legal principle for herding rights on winter pastures, and defined herding rights as collective rights that apply to the whole Saami reindeer herding population, and cannot expire. These new legal guidelines represent a call for a redefinition of state responsibilities in these matters, as well as stronger political measures to understand and solve the periodical local conflicts between Saami herders and landowners. Legal Precedents to the Nordmaling Case The Saami victory in the Nordmaling case needs to be understood against the long list of similar cases that preceded it. The first major legal process where Saami villages claimed stronger rights to land and water was the Altevatn case, tried in the Norwegian Supreme Court and closed in 1968. In that instance, Swedish Saami herders obtained confirmation of their 'immemorial' land rights (sw. Urminnes havd) to summer grazing in parts of Norway. The Altevatn victory sparked a similar legal contest for land rights in Sweden, known as the Taxed Mountain case (sw. Skattefjallsmalet) which closed in 1981. The Saami asked for confirmation of their user rights and possibly even ownership rights Coased on 'immemorial right'), over specific contested northern territories that are used year-round for herding purposes. The Supreme Court ruled against the Saami claims, but confirmed that a nomadic population could acquire ownership rights to land and water through 'immemorial use', defined as occupation and use gained so far back in time that no one knows or can remember when their ancestors first came to be there. The ruling for the Taxed Mountain case also established that the burden of proof for immemorial right rests with the Saami and must be secured in court for each contested land area. The Saami have since been fighting for their rights to use lands for grazing through drawn-out and costly legal processes, which they have most often lost. In the 1990s a number of forest companies joined seven hundred landowners in a lawsuit against Saami herders in what came to be known as the Harjedalen case. The land owners claimed that the Saami lacked customary rights to herd their reindeer 'below' the border of the defined year-round grazing areas2 in the territory of Harjedalen, and accused the reindeer herds of damaging newly planted tree saplings. …

Proper Notification: A Crucial Element of Arbitral Proceedings

Everyone experienced in international arbitration knows how important it is to ensure that the respondent is properly notified of the arbitration. No mistakes can be afforded at this crucial stage of the proceedings. Should the notification fail, the arbitral award cannot, and should not, be enforced. If the notification is inadequate, and the respondent fails to take part in the arbitral proceedings (so-called ex parte proceedings), there will unquestionably be difficulties in enforcing the arbitral award if the respondent chooses not to comply with it. It is very rarely that Swedish courts deny recognition and enforcement of foreign arbitral awards. However, in a recent case from the Swedish Supreme Court, enforcement of an award was denied in Sweden due to lack of proper notification. The case clearly illustrates how critical and important proper notification is in cross-border disputes. Moreover, the case raises questions about the arbitral institutions’ responsibility and practices in this regard.

Swedish Court Decisions on Arbitration, 1999 to 2008

During the ten years that followed the enactment of the Arbitration Act 1999, the Swedish Supreme Court and courts of appeal have rendered a number of decisions in arbitration-related matters. This article comments on selected cases of particular interest to the international practitioner, including, inter alia, the Swedish doctrine of assertion, the law applicable to an agreement to arbitrate, arbitrability of competition law issues, review of arbitrators’ fees, confidentiality, reasons in arbitral awards and the jurisdiction of Swedish courts in international matters.