Sweden

The National Court Administration, the agency responsible for the overall management of the courts, is not formally independent from the political branches of power; it reports to the government. In its 17 March 2023 report, the Committee of Inquiry, a body set up by Swedish government in February 2020 to suggest ways of strengthening formal safeguards of judicial independence, recommended replacing the Administration with a more independent agency. The Committee suggested establishing a new agency, and securing its independence in the following ways:

•  Giving courts significant influence over the agency, by letting them nominate its board members and by giving sitting or former judges the majority of seats in the board.
• Making parliament and government members and employees ineligible for membership in the board of the Agency.
• Making it difficult for the Parliament to remove the Board members by setting a high decision-making threshold.
• Getting the board of the Agency – rather than the government – to appoint and remove its director.
• Requiring that the government to provide a justification for deviating from the new Agency’s draft budget.

Despite acknowledgment of the problem, entry into force of legislative amendments concerning the nomination and composition of the new court administration agency is not foreseen until 2027.

Politicisation of the judicial appointments process could potentially endanger the independence of Sweden’s judges. When appointing professional judges, the government has to take into consideration the advice of the Judges’ Proposal Board. The intention behind involving the Board is to help minimise undue political influence over judicial appointments. The Board has a majority of judges among its members, proposed by judges (five out of nine), but Board members (including judge members) are appointed by the political branches – seven by the government and two by the parliament. The presence of the Proposal Board constrains the government, but the government could, in theory, select a candidate not included in the proposal. Notably, since 2011, when the current system came into force, the government has always followed the Board’s proposal in practice.

In 2022, civil society organisations (CSOs) emphasised:

• The independence and representativeness of bodies advising the government on judicial appointments should be regulated and secured in the constitution, rather than ordinary legislation, as it currently is, so that a political majority is unable to change its features easily.
• That appointments of judges should take place following a binding proposal from the Board, and selection and appointment should be merit-based.
• The constitution should specify a maximum number of judges to be appointed to Supreme Court, rather than the minimum, so that new governments do not seek to seize control of the justice system through appointing extra judges and forming a friendly majority.

In its 17 March 2023 conclusions, the Committee of Inquiry on Strengthening the Protection of Democracy and the Independence of the Judiciary established by the Swedish government suggested enhancing the position of the Board along the line of CSO suggestions. The Committee proposed targeted changes to the current system of appointing judges, by providing in the constitution that judges are appointed by the government, following the proposal of a body with a majority of sitting and former judges. Furthermore, according to the Committee, in contrast to the existing model, the government should only appoint a person proposed by the Judges Proposals Board as a judge.

Another challenge relates to the appointment of lay judges. In Sweden, lay judges (those without a law degree) exercise judicial power alongside professional judges. At first instance courts, three lay judges participate, under the direction of a professional judge. At courts of appeal, there are two lay judges and three professional judges. Lay judges are on equal footing with professional judges when deciding a case – each has one vote. Lay judges have a say in all aspects of the case, including matters of law.

While the role of a lay judge is apolitical, the process of nominating and electing lay judges is politicised, in the sense that politicians are in charge and political considerations prevail over considerations of merits. Lay judges are nominated exclusively by the political parties represented in municipal and regional councils, and elected by the assemblies of those councils for four years. Political parties mostly nominate party members. The expectation is that lay judges will not be influenced by politics in their decision-making. Research suggests that lay judges are passive during the deliberation process and that verdicts in which they outvote the professional judges are very rare. In practice, therefore, political considerations might not have a significant bearing on case outcomes. The appearance of the politicisation of lay judges can still affect the level of public trust in courts, however. The Judges Association and the Bar Association believe that the lay judges should be nominated without the involvement of political parties, and advocate for changing the current system. Efforts to reduce the number of lay judges nominated by political parties put forward in 2002 and 2013 were unsuccessful, however. In its 2023 Rule of Law Report, in view of the above-mentioned concerns, the European Commission urged the Swedish authorities to “ensure that the nomination system of lay judges safeguards their independence, taking into account European standards on judicial independence.”

Currently, the National Disciplinary Offence Board is in charge of disciplinary proceedings against all judges (with the exception of judges of the two Supreme Courts). The Board members are appointed by the government. While some members must have judicial experience, there is no requirement of a judicial majority. Also, CSOs have expressed concern that the chancellor of justice, appointed by and reporting to the government, can initiate proceedings before the Board, and that this could potentially undermine judicial independence if an authoritarian government came to power. Hence, they proposed transferring the powers to an independent panel within judiciary, formed by judges and regulated by the constitution.

The Committee of Inquiry established by the Swedish government suggested in its March 2023 conclusions that the disciplinary system should not be linked to the executive power, as is currently the case, and that judges’ accountability ought not be primarily dealt with as a matter of labour law. The Committee stated that the Board should consist of a majority of judges or former judges.

CSOs have explained that Swedish legislation guarantees access to courts, but having rights on paper is insufficient in the absence of reasonable means to assert those rights in practice. High fees hinder access to courts. Access to legal aid is extremely limited. The rules on costs are calculated based on the assumption that the two parties involved are on equal footing financially. Due to the risk that the losing party has to pay the opposing party’s legal costs, individuals that have suffered discrimination and have limited resources might be reluctant to file cases against governmental agencies or employers with more experience and greater financial resources.

CSOs have insisted on reforming the legal aid system, including through setting a lower limit on the income individuals must have to qualify for legal aid, and improving the quality of the legal aid (since the low remuneration public defenders makes it difficult to get good lawyers). They have also called for repealing the “loser pays” rule.