Rule of Law
Sweden: no paragon of justice
In 2010/11, 24% of Sweden’s prison population was in pre-trial detention. That same year, the amount in England and Wales was 10%.
Gottfrid Svartholm Warg "Anakata" a Swedish information activist and founder of The Pirate Bay, who was ’kidnapped’ from Cambodia to Sweden after he was rendered stateless in practice by Sweden, his rights were violated in the process, and he spent months in isolation in a Swedish remand prison in 2012. This picture was smuggled out of Mariefred prison, where he remained awaiting trial, on 2 March 2013.
Fair Trials International: Julian Assange and Detention Before Trial in Sweden - FAQ"***
- Due process in criminal proceedings
- Justice Chancellor: criminal justice system requires urgent reform
- Police conceals evidence, receives bribes
- NATO, extraordinary rendition, torture
Due process in criminal proceedings
Over the past decade or so numerous Swedish jurists, including former Chancellor for Justice (JK) Göran Lambertz, have denounced the gradual undermining of due process in criminal investigations and judicial proceedings, especially in cases of rape and sexual assault.
- In 2006, fifteen lawyers signed an open letter to the Minister of Justice Thomas Bodström (partner in the law firm representing the two complainants against Julian Assange). The letter condemned the fact that in Sweden many men are convicted for sex crimes they have not committed in word-against-word trials:
"Over the past 20 years many innocent men have been convicted to long prison sentences and permanent dishonour. The Supreme Court itself has recognised the fact that innocent men have been convicted because it has granted retrials since the 1990s. These are only the tip of the iceberg. Despite this Sweden’s courts of law continue to adjudicate in the same way that has led to past miscarriages of justice."
"This recurrence starts at the very first questioning all the way through to the trial, which as a rule is held behind closed doors, and does not allow outside scrutiny."
"The complainants’ unverified information is soon turned into truth. In practice the burden of proof is routinely placed on the accused to prove his innocence, which offends the principles of the legal systems of every civilised country."
- Pelle Svensson, a former olympic wrestler and renowned jurist, openly criticised favouritism and networks of influence beween lawyers, prosecutors and judges in Sweden in the 1980s, which made him unpopular in his professional circle. He also denounces the travesty behind closed doors in Swedish rape and incest trials, where the accused have been stripped of due process. Read his articles in English, here
- Per Lindeberg, a journalist who specialises in the Swedish justice system (he wrote an investigative book on the da Costa case) criticises every step of the justice ’chain’: unprofessional police investigations, dubious expert witnesses, biased prosecutors, and politically appointed Lay Judges in criminal proceedings. Perhaps the Assange case, says Lindeberg, will finally bring the long-standing problem of serious failings in the Swedish justice system to the forefront of public debate. Lindeberg also criticises the Swedish press coverage of criminal trials. The press is less interested in reporting gaps of due process than in going into details of violent crimes, which in turn affects Swedish public opinion on the cases. (Media climate in Sweden)
- Therese Juel published a book in 2010: ’Convicted for Sexcrimes’. The book explored the breakdown of due process (rättssäkerheten) in Sweden over the past decade through an analysis of ten cases in which innocent men were convicted for rape and other sexual offences. The study found a growing trend of adjudications in favour of the alleged victims in trials that involve sexual offences or rape, especially those cases where there was no supporting evidence and the trial came down to word-against-word. The Swedish system has no effective review mechanism for such cases, unlike the UK, Norway and Denmark. This is a point that was forcefully raised by the former Chancellor for Justice, Göran Lambertz. (More about the Swedish media’s reaction to Juel’s book in Media climate in Sweden.)
- Therese Juel’s argument that there is a bias against men in cases concerning sexual offences is corroborated by a recent doctoral thesis about psychological mechanisms in the judicial process by Angela S. Ahola, at the University of Stockholm. The research found that Sweden’s prosecutors, lawyers, police officers, and law students, regardless of their own gender, evaluated male defendants more harshly than women defendants.
Justice Chancelor Lambertz and Sweden’s Rule of Law
’Wrongfully Convicted’ Report
The Chancellor for Justice Göran Lambertz (2001-2009) commissioned a critical report on wrongful convictions (2006). The report analysed eleven cases of wrongful convictions - eight of which were trials concerned rape and sexual abuse. It identified the failures throughout the process, from the investigation through to the trial, and which authority bore the responsibility of miscarriage of justice in each case.
In essence, the report found that systemic failures in Sweden led to the conviction of innocent people. The problems lay in the police investigation, the prosecution, and the judges. It also concluded that these cases were just a small sample of the real number of wrongfully convicted people in Sweden, given that retrials are practically non-existent. The greatest systemic failures at the judicial level were:
- Convictions for serious crimes are often based on insufficient evidence.
- The fact that in Sweden it is practically impossible to get a retrial. Every year, only two or three cases are reviewed - less than 1 % of all review applications. (Lambertz in the documentary Rätten och Rättvisan, 2006.) Retrials are granted when there has been attorney misconduct, a mistrial, or an error which has led to an unfair trial.
To contextualise the issues in ’Wrongfully Convicted’ (Felaktigt Dömda), interviews were conducted with criminal lawyers like the veteran Ulf Lundman, a lawyer in Gothenberg. Lundman felt increasingly powerless as defence counsel because the principle of due process (rättssäkerheten) was being steadily eroded. Lundman estimated that 20 of the clients he had represented in the past 17 years had been wrongfully convicted. Lundman said that judges are often too subjective in assessing the credibility of evidence and are easily influenced by their own preferences and prejudices.
Bodström vs. Lambertz
One of Lambertz harshest critics was Thomas Bodström, the Minister of Justice at the time (and currently in the lawfirm Bodström&Borgström, which represents the two complainants against Assange). Bodström attacked Lambertz for his sweeping criticism of the Swedish judicial system. Bodström announced that there had been a profound conflict between him and Lambertz. He considered it impossible as Minister of Justice to have a Chancellor for Justice whose mission it is to harshly criticise the judicial system.
Lambertz defended his position: he had not noticed a profound conflict between himself and Bodström nor did he see a problem with the Chancellor for Justice’s mandate being independent of the government. Lambertz said that two senior officials had conveyed Bodström’s irritation at Lambertz’s statements that the police force is corrupt (see below) and that innocent people are convicted to prison in Sweden. After Bodström stepped down, Lambertz said that Bodström had put pressure on him to stop criticising the judicial system, and threatened to publicly distance himself from Lambertz.
According to Lambertz, Bodström had misunderstood the Chancellor for Justice’s mandate. Lambertz did not see his role as the ’government’s own attorney’ that defends the government and does as the government pleases:
"The client of the Chancellor for Justice is the state, not the government. It is more accurate to say that the Chancellor for Justice is the lawyer for the state."
Failing to criticise the system, argued Lambertz, would amount to contributing to its continued failure:
"In my view the current situation has been perpetuated by a long-standing silence both within the courts and in the police force."
Lambertz at the Supreme Court
Lambertz left his position as Chancellor for Justice in 2009. He became very unpopular, especially in the immediate aftermath of the release of the Wrongfully Convicted report. He was criticised by various jurists, including Christian Diesen and Madeleine Leijonhufvud, who said that his attacks on the Swedish justice system were unfounded and that he had confused his public role as Chancellor for Justice with his private views. Diesen and Leijonhufvud called for his resignation as Chancellor of Justice.
Lambertz is now a Supreme Court (Högsta Domstolen) judge. Since being at the Supreme Court Lambertz has adjudicated in trials that have set new legal precedents (prejudikat), like the recent case in December 2010 (B 2937-10) which freed a man because the evidence was insufficient to convict him. The decision raises the standards for reaching a conviction in criminal trials, reincorporating the substance of the principle of ’beyond reasonable doubt’.
Madeleine Leijonhufvud, a criminal law lecturer, legal commentator, and politician, who has proposed a mandatory expression of consent in the law (see Sexual Offences) denounced that the Supreme Court’s judgement in practice decriminalises sexual abuse of children.
A criminal defence lawyer, Charlie Tvärenvigg, defended the new legal precedent:
"It still is, and has been for a long time, incredibly easy for prosecutors to convict people who have been indicted for sexual offences. The reason for this is that Swedish courts base their judgements almost entirely on the story that has been given directly or indirectly by the complainant. This is something that the general public is generally unaware of. Factual or scientifically verifiable evidence is almost never present."
Swedish police force systematically withholds and misrepresents evidence in criminal trials, bribes
In 2008, two respected lawyers, Peter Althin and Nils-Eric Schultz, published an article in DN titled "Swedish police misrepresents evidence in criminal trials". The original article is no longer available on www.dn.se, but it is available in pdf format on the internet. This SvD article also talks about the article. In the original, Althin and Schultz write:
"Sweden fails the minimal requirements set by the European Convention of Human Rights for a state governed by the Rule of Law. Since the mid-1990s there have been hundreds of cases in which the police, often in collaboration with some prosecutors, have withheld evidence from the courts."
The police claims that it does this to protect informers and assets, but it is done completely outside of the law:
"What the police fail to recognise is that this same practice potentially conceals instances of perjury, serious misconduct within the police department, perverting the course of justice and false certification [by the police]."
The Parliamentary Ombudsman for Justice, Mats Melin, said that in this respect, Sweden is ’the Wild West’. The Chancellor for Justice, Göran Lambertz, described the police as a "state within the state".
Althin and Schultz write:
"The belief that a trial involving the ’Swedish method’ would hold up in the European Court of Human Rights is, in our understanding, non-existent. Who would want to represent the [Swedish] state in an ECHR hearing and explain that in Sweden withholding information - about informers and provocative measures - from suspects, their defence counsel, and the court, is considered to comply with either Swedish law or article 6 of the ECHR?...
A trial at the European Court of Human Rights would probably draw attention to Sweden - and change perception that has prevailed internationally of Sweden as a state governed by the Rule of Law. The perception of Sweden as a lawless country of the Wild West as the Parliamentary Ombudsman for Justice described it will spread in the international media and law journals. It would take many years to wash away that label.
Perhaps there should be a truth commission to investigate and wash away the dirt. Yet another investigation that merely declares that there are many illegalities in the fight against criminality - like the Ombudsman for Justice’s report - is not enough. If the finding that the conduct of the police chief amounts to ’lawlessness’ has no consequences, it means that they can all go on with their ’unconventional methods’" (Althin and Schultz, DN, 26 October 2008)
- The cover-up system that was in place allowed Göran Lindberg, who was a chief of police at the time and a high-ranking campaigner for women’s rights and equality in the Swedish Police Force, to bury evidence against him in a rape investigation of a 17-year old girl in 2007. The investigators had ample evidence of the identity of the perpetrator: a description by the victim, DNA samples, two mobile phone numbers of Lindberg’s and practically the full number plate of his car. But the preliminary investigation was terminated. Police chief Lindberg was jailed for rape, pimping and procuring in August 2010 for several cases (two involving 14 year-old girls) and a commission was set up to determine whether Lindberg could have been stopped earlier.
Swedish police are easy and cheap to bribe. - Olle Wästberg, former Expressen Editor in Chief
- Expressen and Aftonbladet, Sweden’s two evening tabloids, regularly bribe the Swedish police for information regarding open investigations. A legal commentator, Mårten Schultz, has compared the News of the World scandal in the UK with the apparent complacency in Sweden regarding the very same unethical and illegal practices.
NATO, extraordinary rendition, torture
A number of other concrete examples of Swedish actions also challenge its reputation as a beacon for human rights and the Rule of Law:
- The furtive accession to NATO: Sweden is not a member of NATO, but it is indistinguishable from other NATO members. Its de facto accession has never been approved by parliament. Already in 2005, an official of the Swedish Defence Ministry observed that Sweden is so deeply involved in USA/NATO that no one could tell that it was not officially a member.
- Sweden has been criticised by the UN, Amnesty International and Human Rights Watch for its participation in the United States’ outsourcing of torture by transferring two recognised refugees under its protection to Egypt. The refugees were tortured in Egypt. Afterwards, they were not allowed to return to Sweden. The case of extraordinary rendition and torture was brought to the UN Committee Against Torture and the UN Human Rights Committee in 2006. Both found that Sweden had breached the Convention Against Torture.
- A complaint was filed against Thomas Bodström (of the law firm representing the complainants against Assange) to the Constitutional Committee (Konstitutionsutskottet or KU) for his role in authorising the rendition. Bodström was Minister of Justice at the time. The complaint came after Eva Franchell, the press secretary of the late Minister of Justice Anna Lindh, published a book. She accused Bodström of blaming Lindh for the extraordinary rendition decision after her assassination. Bodström had falsely claimed that he was unaware of the decision. Bodström responded: "the decision was taken collectively by the government and no single person is more guilty than the rest". The Swedish Chancellor for Justice, Göran Lambertz, was one of the harshest critics of Thomas Bodström in the extraordinary rendition case.
Newsmill, Conflict of Interest in the Socialist Government Commissioned Investigation into CIA Rendition Flights English, Swedish - (17 January 2012). The article critisises Sweden’s internal investigation into its complicity in CIA rendition flights. The director of the flight authority carrying out the investigation had himself been the director of one of the airports at the time of the rendition flights.