ACTIVITY REPORT OF THE SUPREME COURT 2 Table of contents

A word from the President 5

Trading places 9

Creating precedent 13

Towards precedent 17

Extraordinary remedies 21

Developments in society and precedents 25

2017 – Cases in brief 28

The year in brief 32

Fifteen years on the Supreme Court 35

Statistics 37 4 word from the President When – for lack of mark and not, for example, a reef. sea marks – unfa­ Moreover, conversations around miliar waters are the judicial tillers are facilitated if difficult to navigate, the sea marks can be readily articu­ one must seek out lated and understood. This is no a passage between the islands and less true in discussions involving skerries while avoiding the rocks and the Supreme Court. reefs. When the journey is shared, The notion of identifying legal everyone keeps watch. “There’s the cases by means of associative names Western Point, so mind the shoals!” is not new. Yet, in Sweden, it has The law is often like unfamiliar not been so common. It is only in waters. Various roles are brought recent years that the Supreme Court to bear in the quest for navigable has begun referring in its judgements passage. When adequate direction to certain legal cases by name. As a cannot be gleaned from legal sources, rule, this has only involved important one relies on scholarship to determine precedents. It happens that a decision what is known and to seek guidance. has already been christened in the Practicing lawyers argue points of legal literature, but it happens also law and judges assess the arguments that the Court names previous cases and explain in their judgments how in its findings. The novelty is that they reached their conclusions. A the Supreme Court now often supreme court – to the extent of its proposes a name as early as when ability and subject to the prevailing rendering its decision in a case. conditions – establishes new sea marks. But these names are not set in As I mentioned in last year’s Report, stone. In legal discussions, one is the collaboration of various jurists is free to ignore a suggestion made by akin to a discussion, whether great the Supreme Court and refer to the or small. Words are necessary to give case by another name – or use none > meaning to a discussion. And those words should make clear in the most efficient way possible what is meant to be said. Last year, the Supreme Court began naming certain cases. The Court has done so to aid discussions in the legal realm. As a rule, most people find it far easier to associate a case with a name like “Swedish Scapegoats” than an acronym and some numbers such as “NJA 2017, p. 75”. In our maritime analogy, legal precedent should be likened to a sea

5 at all. The Supreme Court uses these text should meet certain linguistic names solely to signal its ambition; requirements. However, all statements not merely in an attempt to be open ultimately serve a single purpose: and reasonably thorough in its to help the reader understand the account of the reasons under­­lying Court’s reasoning without any a decision, but also to endeavour unnecessary linguistic barriers. to make its underlying reasoning Rulings affect people. They can as accessible as possible for the change lives. In this way, all courts readership. wield power. A precedent will typi­ The audience is diverse. Yet – other cally have consequences that stretch than jurists with at least some famili­ far into the future and have an impact arity with the legal area addressed by on many people, not just the parties the decision – there are few who will before the Court. A supreme court is find pleasure in the fact that cases thus particularly powerful. All power are referred to by name. Nonetheless, should be the subject of review in­ it is better to help a few than to help cluding, naturally, normative power no one at all. of this brand. In order to satisfac­ Making the Court’s rulings intelli­ torily achieve this, it is critical that gible, and thereby accessible, might every court exposes itself to review be considered a ceaseless mission. by means of candid, clear and readily While many small steps have already intelligible reasons for its findings. been taken – e.g. regarding arrange­ Against this background, ascrib­ ment, headlining and numbering of ing a name to a case may seem like paragraphs – there is much left to a small thing. Yet, there is value in do. Accordingly, taking into account any measure which eases the shared the interest of the parties in obtain­ voyage through the difficult waters ing a concrete, substantive decision of the law. Whatever their role in the and the societal interest in proactive journey, all travellers can contribute. judicial progress, a balance must be Small improvements should not struck amongst many conflicting in­ be belittled. They are the engine of terests, e.g. being technically precise evolution and, in my view, evolution yet generally intelligible and being in any part of society equates to thorough yet concise. Above all, it human progress. must be kept in mind that intelligi­ bility is for the reader. Indeed, as a Justice once put it, the grounds for stefan lindskog a ruling should be regarded as a president of the supreme form of literature – implying that the court of sweden

6 7 8 rading places For three months I hadn’t considered leaving the in the spring of University to become a judge. 2018, Justice Kerstin Calissendorff What are your views on the division will serve on the between courts of general jurisdiction Supreme Administrative Court while and administrative courts? Justice Kristina Ståhl will serve on Kerstin: The separation feels natural the Supreme Court. By allowing the since it has always been this way, Justices to trade places, the Courts – but I can see the advantages of a both of which have the chief task of single court system or at least a single establishing judicial precedent – are Supreme Court. I think the drawbacks taking the first step towards coop­ are mostly practical and passing in erative judicial activities which were nature. Merging the two Courts into made possible by a change in law in one would probably require a divi­ the summer of 2017. sion into two chambers; one that principally handles cases under the How did you become Supreme Administrative Court Procedure Act Court Justices? (as does the Supreme Administrative Kerstin: I wanted to become a judge Court) and one that primarily han­ as early as when I finished my clerk­ dles cases governed by the Code of ship in the courts, and I was also Judicial Procedure (as does the accepted to the judicial training Supreme Court). program. However, at that time, Kristina: I do not have a definitive I was also offered and accepted a view on the matter. There are obvious position at a law firm. I very much advantages with a single Supreme enjoyed my time at the firm prac­ Court. A separation entails a risk tising business law and intellectual that the Courts will render conflict­ Kerstin property law but, when I was asked ing decisions on issues concerning Calissendorff if I wanted to be appointed Justice both Courts. There are disadvantages Justice of the of the Supreme Court, I was already as well, and the separation should Supreme Court thinking about becoming a judge. be maintained if there is concern since 2003. So, when I was asked the question, that merging the two will jeopardise Law degree the decision was easy. the quality of judgments. A division > conferred 1981. Kristina: Back then you didn’t Court clerkship, apply to become a Justice. One of the 1982-1984. Justices of the Supreme Administra­ Associate and sub- tive Court asked me if he could add sequently Member my name to the discussions about of the Swedish Bar candidates for a new Justice. I was Association and delighted when I received the offer partner of a law six months later, and I accepted it firm, 1984-2003. without hesitation. Prior to that,

9 10 into chambers as contemplated by also look forward to getting to know Kerstin could be the solution to such my new colleagues. a problem. Kristina: I also expressed my interest when the issue was brought up. It In what ways have you come across struck me as fun and exciting. It is legal areas that fall within the sphere already becoming clear to me that of the other Court? the Courts plan and structure their Kerstin: While it is certainly unusual­ work differently. that cases based on administrative law make their way into the Supreme What are your expectations? Court, it is my experience that it has Kerstin: I’m curious about how the become more common. For exam­ cabinet system works in the Supreme ple, the Court has been called upon Administrative Court in which some to address various issues concerning cases are handled by a group consist­ value added tax in civil cases. Cases ing of one Justice and several judge involving land and the environment referees. For various reasons, the can also involve administrative law Supreme Court previously decided issues. The Courts also have in com­ not to introduce a similar system, but mon issues related to the European much has changed and it might be Convention on Human Rights. something for us. I also hope to be Kristina: I think this is more com­ involved in some tax cases. mon in the Supreme Administrative Kristina: I’m very interested in the Court. Tax cases in particular tend to process of writing judgments and involve aspects of civil law, and they hope to learn more about how it make up about a third of our cases. works in the Supreme Court. I do The same is true in cases involving not believe you can obtain adequate public procurement. insight in any way other than direct participation. I hope to be able to Kristina Ståhl Why did you apply to serve in take away something that can be put Justice of the other Court? to use in the Supreme Administrative the Supreme Kerstin: The question came up during Court. I also hope to participate in Administrative a meeting attended by all of the the main hearing of a criminal case. Court since 2008. Justices, and I immediately expressed Law degree my interest. I am interested in how Do you have any reservations? conferred 1988. the Supreme Administrative Court Kerstin: No. There will probably be Doctor of Laws conducts operations and how admin­ lots of work, but I’m quite used to conferred 1996. istrative procedures are applied in it. There will also be new colleagues Docent of financial practice. I am quite familiar with the and a new workplace. This can be law, 1998. Supreme Court’s operations, and I challenging, but it will all sort out. Professor of believe I have a handle on the upsides I believe I will enjoy myself. financial law, and downsides of each Court’s way Kristina: I agree with Kerstin. It’ll be 2005-2007. of operating. On a personal level, I hard work but also a great deal of fun.

11 12 reating precedent The Supreme Court’s by the party bringing the appeal. main objective is to The drafting law clerk or the judge provide legal guid­ referee puts together a brief basis for ance when the law is assessment and a proposal for a de­ unclear. The Court’s cision. When the issue of whether to decisions (precedents) are used not grant leave to appeal is straightfor­ only by the lower courts when ruling ward, the case is assessed by a single in similar cases but are also relied on Supreme Court Justice. In these types by anyone who needs to apply the law. of cases, a decision is normally made A well functioning society requires within one month of the date the not only rules but also a court sys­ case was received. tem that can efficiently determine Appeals which are characterised by whether or not those rules have been more compelling reasons for granting followed. District courts are the leave to appeal which require more courts of first instance for criminal extensive review and research are matters and cases involving disputes assigned to a judge referee. The between individuals. A district court judge referee does extensive research decision may be appealed to a court as a basis for the assessment and of appeal, the primary tasks of which makes a proposal for a decision. are to ensure that the ruling of the When the issue of leave to appeal is district court was correct and to more challenging, the assessment is rectify any errors. carried out by three Justices. In these Unlike a district court and a court cases, the issue of leave is normally of appeal, the Supreme Court must determined within three months of not only apply the relevant legal the date of receipt. > rules, but also clarify the meaning and effects of those rules. This is apparent in that the right to a review by the Supreme Court is subject to the requirement that leave to appeal is granted – i.e. permission must be given for the appeal to be considered. The Supreme Court examines only cases which demonstrate a need to clarify the meaning of a legal rule or, in exceptional cases, cases in which the lower courts have committed an error or new evidence justifies a new trial. The Supreme Court receives some 5,000 appeals per year. The issue of leave to appeal is decided on the basis of the arguments asserted

13 When the Supreme Court assesses a a main hearing, and are examined by request for leave to appeal, it does five Justices. Following presentation, not consider how the lower courts deliberations get under way with evaluated the evidence or applied the each Justice presenting his or her views legal rules. The issue of leave to ap­ on the issues in the case. Thereafter, peal addresses only if there is a need one of the Justices (the reporting for legal guidance or, in exceptional judge) drafts a proposed decision cases, whether a new trial is justified. which is thereafter discussed. When If leave to appeal is granted in a the Justices have concluded their case, the parties have the possibility discussions – often requiring multiple to argue the issues to be adjudicated deliberations – the final judgement and present the evidence they wish is rendered. Cases for which leave to to adduce. The judge referee con­ appeal has been granted are nor­mally ducts a thorough examination of the decided within one year after the rules and precedents relevant to the registration of the case. case (judicial enquiry) and proposes a ruling. Cases are decided following an oral måns wigén presentation or, in certain cases, after administrative director

14 15 16 owards precedent Leave to appeal – precedents. The Justices also follow i.e., permission to and participate in the legal discussions have a judgement taken up in articles and by organi­ reviewed by the sations. In this way, the Court can Supreme Court – gain insight into what issues should may be granted if a resulting judge­ be addressed in the development of ment would produce important the law. guidance for the application of law The Court’s own experiences are (that is, to create legal precedent). also of great importance. A decision Of the approximately 5,000 appeals to grant leave to appeal is made by made to the Court annually, leave to three Justices following presentation appeal is granted in approximately by a judge referee. Together, they 100 of those cases. bring to bear many years of expe­ What, then, is the basis for con­ rience from various legal fields and cluding that guidance is necessary? professions with the related ability The wording of a statute may leave not only to see the big picture but room for various interpretations. In also to discern the details that may addition, the legislature may leave a need to be addressed. question of law to be determined by Accordingly, what are the consider­ the judicial process. Or, a legal issue ations for granting leave to appeal? may involve a situation to which no Fundamental to this equation is that legislation is applicable. It is impor­ there exists a general interest in estab­ tant to examine past cases in order to lishing guidance for future cases, understand their reach and determine while responsibility for the outcome whether additional commentary is in individual cases essen­tially rests needed from the Court in order to with the district courts and courts specify and/or advance the law. Often, of appeal. the legal literature sheds light on the The case must involve a legal prob­ issues that remain unresolved. lem in need of further explanation, One may also detect indicators or the need for a new step forward > or other facts in a case that suggest the need for guidance. The court of appeal or district court may make reference in their reasoning to the fact that there is a dearth of precedential rulings. Sometimes the parties to a case submit information that suggests that case law lacks uniformity. In recent years, the Supreme Court has arranged meetings with repre­ sentatives from various parts of the judicial system in order to discuss

17 in the development of the law. and distinct, which makes certain The issues may differ considerably demands of the case and the manner in character. in which the parties pursue the process In some cases, they may trigger before the Supreme Court. If the case overarching constitutional or is extensive and also raises questions European law assessments, in others of no principle interest, the preceden­ they pertain to more widely held tial issue may be overshadowed­ or, in legal principles. These are issues any case, the cumulative effort com­ which confront all courts, but it mitted by the Court to the case may is not infrequently the case that be disproportionate to its value as the Supreme Court bears special precedent. Ultimately, the assessment responsibility for developing the law. must always be made taking into In other situations, a more specific account the chief task of the Supreme decision may be needed on a narrow Court: to establish precedent. issue. The practical implications become clear when considering a grant of leave to appeal. gudmund toijer The legal issue must also be clear justice of the supreme court

18 19 20 xtraordinary remedies Among its many a court and no party has filed an tasks, the Supreme appeal within the stated time limit. Court is responsible This is referred to as res judicata. for adjudicating The principle is that these decisions issues regarding should stand and not be able to be new trials, grave procedural errors, modified so that that parties know and restoration of lost time. These the final outcome of the case and can types of adjudications are usually act accordingly. The possibility for referred to as extraordinary remedies. a new trial, the correction of grave Cases of this kind involve decisions procedural errors and the restoration that have become final and cannot of lost time are exceptions to this be appealed. key principle. With a request for a new trial, a These exceptions exist because it party may ask for a review of whether would otherwise be offensive or grave­ a case – one in which the judgement ly objectionable if incorrect decisions can no longer be appealed – may be could not be corrected. In addition, retried by the court which issued the it would be unacceptable if a decision most recent judgement in the case. remained unchanged if important legal A new trial may be granted, for safeguards were disregarded during example, where new, important administration of the case. evidence or critical facts have come Many requests are made every year to light. for a new trial, to remedy a grave pro­ Some mistakes made in the handling cedural error or for a restoration of of a case may rise to the level of what lost time. Only a few of them succeed. is referred to as a grave procedural Here are three examples of cases in error. When this occurs in a case in which the request did succeed. which the decision can no longer be appealed, the decision can be set new trial in the “kalamark aside and the case retried. One exam­ murder­ ” (decision of the ple of grave procedural error is when supreme court of 29 december one of the parties has not been given 2016 in case no. ö 5257-15) access to material that was important In 2005, a man was sentenced to life to the adjudication of the case. in prison for murder and aggravated > Restoration of lost time means that a party can be afforded additional time to appeal a decision. If the party failed to appeal a decision on time for a valid reason (a “legal excuse”), additional time may be granted to appeal the decision. As a general rule, decisions are final if a case has been decided by

21 robbery of two brothers who lived of Spain at the time the acknowl­ on a farm in Kalamark outside of edgement of receipt was signed. The Piteå, Sweden. The man had been in court of appeal rejected his account. prison since that time. The Supreme Court noted that the He twice petitioned for a new trial acknowledgement of receipt of service but was denied such trial. Among of process no longer existed, even other things, he argued that new though these types of receipts are to material showed that the key witness be saved for future purposes. There in the case had provided information was sufficient support in the case to that deviated from his previous testi­ establish that the defendant had not mony on several points. been served the statement of claim. The Supreme Court noted that the Accordingly, no default judgment information provided by the key should have been issued. The case witness had been critical to the find­ was retried by the district court. ing of guilt. The uncertainty relating to the credibility and reliability of his restoration of lost time testimony was important for the pro­ (supreme court decision bative value of his story. In this light, of 14 november 2017 there were extraordinary reasons to in case no. ö 3268-17) retry the case against the convicted In a matter involving the appoint­ man. The Supreme Court also took ment of an administrator for a man, into consideration the fact that the the court of appeal issued a decision defendant was serving a life sentence. on 23 May 2017. In its decision, Following the Supreme Court’s the Court incorrectly stated that the ruling, the case was retried in the decision could be appealed no later court of appeal and the defendant than 16 June 2017. According to was acquitted. law, the deadline for an appeal was 13 June 2017. The man appealed grave procedural error the decision. His appeal was filed as the court did not save after 13 June but before 16 June. evidence of service of process The court of appeal rejected the ap­ (case nja 2016, p. 189 iii) peal because it was filed too late. Upon the defendant’s failure to reply The Supreme Court observed that to a statement of claim, the district the failure to react to the error with court decided by default judgment respect to the appeals deadline was that the defendant was to pay a excusable. Accordingly, the man certain amount of money to a com­ had a legal excuse for failing to pany. The decision became final and timely appeal the decision of the binding. The defendant brought an court of appeal. Notwithstanding appeal in the court of appeal. He that the appeal had been filed too argued that someone else must have late, the case was admitted for signed the acknowledgement of consideration of whether leave to receipt of service of process which, appeal would be issued. according to the district court, proved that he had been served the statement of claim. He also pointed anders eka out that he was a permanent resident justice of the supreme court

22 23 24 evelopments in society and precedents The Supreme Court create reference points for how is a precedential the revised law should be applied court the object of and provided a basis for lawmakers which is to issue to determine whether additional judgments that serve changes to the legal regime were to guide not only the adjudication needed (the ruling was followed by process in the courts of appeal and a public debate). district courts but also other players In other cases, social developments in the field of law such as lawyers affect the need for precedents with­ and advisers. It may be said that the out changes to the law. Basically, new purpose of this activity, although questions arise when old laws are based on judgements in individual confronted with a “new” reality. The cases, is to be normative. To what need for precedents is then related extent do events outside the Court directly to those developments (social affect this process? The answer is, development need for guidance). quite a lot. A simple example of this is the Naturally, in many instances, social develop­ment of information tech­ developments give rise to changes to nology which has led to a need for legislation which, in turn, create a new precedents in different areas. For need for new precedent, e.g. because example, in case NJA 2015, p. 501, the new legislation can be interpreted the Supreme Court considered and applied in different ways. An whether a sexual act can be “per­ example illustrating such a devel­ formed with” a person on the other opment (social development new side of a webcam. (The case says that legislation need for guidance) is it is possible.) the decision handed down in Novem­ Recently, the Court also considered ber 2017 regarding a particularly whether the right to a domain name serious felony weapons charge can be forfeited (judgement of the Su­ (judgment of the Supreme Court of preme Court of 22 December 2017 > 7 November 2017 in case no. B 3130- 17, the “Five Automatic Rifles” case). In that case, social changes – i.e. greater access to weapons for criminal gangs – caused the legislature to modify the rules regarding illegal possession of firearms which, in turn, prompted new questions for which answers were needed. The Supreme Court found that, although the crime in question was a serious felony, it should not be considered an especially serious felony. The ruling helped

25 in case no. B 2787-16, the “Domain courts. Together with a later ruling Name Forfeiture” case). According on the possibility of using coercion to law, property can be forfeited, to establish a person’s age (case NJA but should a domain name be legally 2016, p. 1165), the case has also classified as property? (The answer provided clarity for lawmakers: if we is “yes”.) Another question that may want a law which allows a person’s require guidance is the determination age to be determined by physical of where a crime committed on the examination, new legislation is nec­ internet has actually taken place essary (and such legislation has since (for example, could a statement pub­ been adopted). lished through a server in Australia Another consequence of multi­ be considered to have been made culturalism is that the law may be in Sweden?). confronted with phenomena that Migration is another social devel­ are difficult to assess under a legal opment that has created a need for framework that was not made with legal guidance. For example, the such phenomena in mind. There was, question of determining a person’s for example, the question of how to age has historically received little treat a mahr agreement between two attention from the courts. In Sweden, individuals who married in Iran. The personal identity numbers assigned Supreme Court concluded in that to a person have always provided case (case NJA 2017, p. 168) that a the relevant information. Today, the mahr agreement should be likened to situation is different. We do not a preliminary agreement for a future always know a person’s age, and partial estate distribution. Since these the question becomes how to deal kinds of agreements can only be with that uncertainty when age is made prior to an imminent divorce, relevant for legal purposes. If the age the mahr agreement in question of criminal responsibility is 15, can a could not be considered valid. person who is probably 15 years old There are numerous other exam­ be convicted? The answer is “no”. ples of precedents that arise from According to case NJA 2016, p. 719, social developments, even though the requirements are more stringent they are not always as obvious and when it comes to the age of criminal easy to spot. responsibility. It must be clearly In conclusion, law is a social established that a person is old matter. The law decides the rules of enough to be convicted. However, the game and settles conflicts, and age estimates are generally sufficient is thus strongly influenced by social when it comes to sentencing issues developments. This is no less true affected by the age of the person. for the Supreme Court. This ruling has not just provided guidance for prosecutors and judges petter asp in the courts of appeal and district justice of the supreme court

26 27 2017Cases in brief

Calculating damages long after the A creditor’s duty to investigate a crime was committed debtor’s insolvency in a recovery case (Supreme Court decision of 24 Novem- (Supreme Court decision of 21 Novem- ber 2017 in case no. T 4435-16, the ber 2017 in case no. T 5435-16, the “Referred Compensation Issues” case) “Railway Operator’s Insolvency” case) In a case involving the sexual exploi­ In conjunction with recovery in tation of a minor, such a long period bankruptcy pursuant to Chapter 4, of time had transpired that the com­ section 5 of the Bankruptcy Act, pensation levels for the violation and the subjective requirement that the for pain and suffering had changed contracting party should have been between the time of the harm and the aware of the debtor’s insolvency at time at which the compensation was the time of the transaction in ques­ to be established. At a plenary session tion is deemed to entail a duty of of the Supreme Court, the major­ investigation on the part of the con­ ity found that compensation for a tracting party in situations in which violation should be calculated based the circumstances create suspicions on the rules applicable at the time that the debtor is insolvent. the compensation was determined, while compensation for pain and A municipality’s liability for suffering should be calculated based erroneous information on the rules applicable at the time (Supreme Court decision of 14 Novem- the harm was incurred. The assess­ ber 2017 in case no. T 5170-16, the ment took into account, among other “Municipality’s Erroneous Informa- things, the fact that compensation tion” case) for a violation does not relate to any specific harm that can be separated In a telephone call with the head from the appraisal of the act that of the municipal planning office, occurs at the time of the assessment a con­struction company, which and that the intended function of the intended to purchase and develop compensation may be best fulfilled some properties, was informed that if the amount of such compensation the properties were not covered is allowed to evolve in harmony by the Shore Protection Act. After with prevailing community values. the company had purchased the However, in compensating pain and properties, it came to light that this suffering, no appraisal is made of the information was incorrect and that tortious act. the properties were in fact subject to

28 shore protection. The Supreme Court can constitute a negotiable instru­ found that the municipality was ment. According to the Supreme liable in damages for the errone­ Court, an electronic promissory note ous information. The Court stated, issued to a particular individual or among other things, that where a order may be deemed to be nego­ representative of a municipality has tiable provided that the debtor who provided an individual with unam­ makes payment by electronic means biguous but incorrect information is afforded the same protections as with respect to a certain matter, the when acknowledgment of payment assumption should normally be that is written on a physical promissory this constitutes an error or omission. note or when the physical promissory Accordingly, it is incumbent upon the note is returned to the debtor. municipality to adduce circumstances according to which, notwithstanding A partner who was an alternate the erroneous information, no error member of the board of a limited or omission was committed by the liability company was not con­sidered public authority. an actual principal of that firm (Supreme Court decision of 4 October Classification of crime and sentencing 2017 in case no. B 1981-16, for smuggling migrants the “Partner’s Liability” case) (Supreme Court decision of 8 Novem- ber 2017 in case no. B 6041-16, Two individuals owned 50 percent the “Lernacken” case) each of a limited liability company that sold wholesale newsstand goods. A man who had helped two migrants One of the owners served as a board illegally enter the country at Lernac­ member and the other as an alter­ ken in Malmö was charged with the nate member. The board member crime of smuggling migrants. Howev­ perfor­med the financial and admin­ er, the Supreme Court found the crime istrative tasks while the alternate to be a misdemeanor and sentenced board member primarily delivered the man to day fines. Smuggling mi­ goods to the company’s customers. grants should typically be classified as Both were prosecuted, among oth­ a misdemeanor unless it can be estab­ er things, for accounting crimes. lished that it had occurred more than The Supreme Court found that the once, involved more than just a few alternate board member could not migrants, was done for compensation, have exercised controlling influence and that other circumstances support in the company. In other words, he another assessment. was not an actual principal of the company. The charges against him Electronic promissory note were dismissed. (Supreme Court decision of 2 Novem- ber 2017 in case no. Ö 5072-16, Noncustodial parent acquitted of the “Collector’s Electronic Promissory child abduction Note” case) (Case NJA 2017, p. 557, the “Child in Norway” case) An individual took a loan from Collector Bank AB and electronically A 12-year old child voluntarily signed a document entitled “Loan stayed with a noncustodial parent Application/Promissory Note”. The following the expiry of visitation case concerned, among other things, rights. The custodial parent knew whether such an electronic document where the child was and could both

29 visit and take the child home. The costs to be paid by the government as noncustodial parent was prosecuted a representative of public interests. for child abduction. The Supreme Court found that criminal liability A police officer’s unlawful use required that the offender had the of a police dog ability to remove any impediment (Case NJA 2017, p. 491, which prevented the custodial parent the “Police Dog” case) from reuniting with the child. Con­ sidering the age and maturity of the A police officer with a dog caught child in this case, the non­custodial two individuals spray-painting a parent could not be compelled to pedestrian underpass. At the officer’s turn the child over to the custodial command, the dog ran towards one parent. The charges were dismissed. of the individuals and bit him. The Supreme Court, which noted that Attempted arson the police officer released the dog (Case NJA 2017, p. 531, without suspicion of offenses more the “Bus in Östberga” case) serious than deliberately causing damage to property, found the of­ Four individuals broke the window ficer’s actions unjustifiable and found on the front door of a parked bus. him guilty of misconduct and liable They then poured diesel fuel into the to pay day fines. bus through the hole in the window. The element of attempt necessary for Intellectual property infringement conviction was deemed to be satisfied is not a felony although it had not been proved that (Case NJA 2017, p. 446, they had tried to light a fire using a the “Movie Theatre” case) match or any other source of ignition. Over a period of almost two years, Litigation costs in a case on a man uploaded 125 movies and TV property reallotment shows on a filesharing website. The (Case NJA 2017, p. 503) man also assisted in various respects in administering the website. The A property owner was granted Supreme Court found that intellec­ partial property reallotment by the tual property infringement does not Swedish Mapping, Cadastral and warrant a prison sentence when the Land Reg­istration Authority. An crime is less severe. In this case, the appeal by the County Administra­ penal value was six months in prison, tive Board and the municipality and the man received a suspended was dismissed by the Land and sentence and 100 day fines. Environment Court. The Land and Environment Court subsequently Photography as an invasion of privacy granted leave to appeal regarding (Case NJA 2017, p. 393, the litigation costs in the case and the “Escalator” case) dismissed the property owner’s cost claims. The Supreme Court found A man on an escalator put his that the legal or technical complexity cellphone up a woman’s skirt and of a case involving land parceling photographed her genitals. The and the substantial importance it Supreme Court concluded that the has for an individual may constitute action constituted sexual harassment extraordinary reasons for awarding since it had occurred in immediate such person compensation for legal proximity of the woman and was a

30 clear violation of her right to self-de­ mined that the agreement could be termination. likened to an agreement regarding a future partial estate distribution. As Notification obligation in conjunction such it was not valid under Swedish with unjustified termination law which applied in this case. (Case NJA 2017, p. 203, the “KRAV Milk” case) No sentence reduction due the defendant’s age Two brothers ran a farm and deliv­ (Case NJA 2017, p. 138, ered milk to a dairy. According to the “70-year-old” case) a special price agreement, the dairy would pay the brothers, in addition A man drove a car with a breath to base compensation for conven­ alcohol level of 0.85 milligram per tional milk, a supplement for or­ liter and his driving was extra­ ganic milk with the Swedish KRAV ordinarily reckless. The Prosecu­ certification. In December 2003, tor-General appealed the 6-month the dairy terminated the special sentence handed down by the price agreement and ceased making court of appeal and requested a supplemental payments for the harsher penalty. The Supreme Court milk. The termination was unjus­ reached the same conclusion as the tified. The brothers made demands court of appeal and did not reduce for the supplemental payments some the man’s sentence because of his 10 years later. This was too late ac­ age (70 years old). cording to the Supreme Court which found that, in order to preserve the An artist was allowed to use a right to the supplemental payments, photographic work in his painting the farmers would have had to notify (Case NJA 2017, p. 75, the dairy that they did not accept the “Swedish Scapegoats” case) termination. An artist used a photographic work The validity of a mahr agreement depicting a former suspect of the (Case NJA 2017, p. 168, murder of Prime Minister Olof Palme the “Mahr” case) for one of his oil paintings entitled “Swedish Scapegoats”. The photo­ A mahr agreement (a legal concept grapher argued that the artist had in Islamic law which has been trans­ infringed his intellectual property lated in legal literature as “Islamic rights to the photographic work. dower”, “dowry” or “bride price”) Following an overall assessment of was entered into in conjunction with the painting, the Supreme Court ob­ a marriage between two Iranian citi­ served that, rather than a compelling zens in Iran. According to the agree­ photographic portrait of a person, ment, the man would pay 1.5 mil­ the painting depicted an allegory lion Swedish kronor at the bride’s implying a critique of the mass request. One spouse resided in Swe­ media’s need for scapegoats. In other den while the other resided in Iran. words, the photographic work had The couple then moved to Sweden been transformed to such an extent together. After the couple divorced, that the artist had created a new and the woman demanded that the man independent work of art. His dispo­ pay her the money. The man argued sition of the painting thereby did not that the agreement was not valid in constitute infringement of the copy­ Sweden. The Supreme Court deter­ right to the photographic work.

31 The year in brief

8 February On the same day, the Supreme Court The Justices of the Supreme Court and ventured­ onto Twitter (@hogsta_domstol) the Supreme Administrative Court met to as a step towards making the Court’s discuss, among other things, the possi­ work more visible to the public. The bility of using each other’s expertise and Court’s tweets pertain principally to experience and to exchange views on precedents and grants of leave to appeal. some common issues. 6–8 September 20 February The heads of the Nordic supreme Petter Asp became a new Justice of the courts met in Copenhagen. Among Supreme Court. He is a professor of other topics, they discussed how to best criminal law at Stockholm University. He identify cases which deserve a grant of has also written books on criminal law leave to appeal for precedential purposes. and participated as an expert on several The Supreme Court of Sweden was Government Committees. represented by President of the Supreme Court Stefan Lindskog and Vice Presi­ 28 February dent Gudmund Toijer. Justice Göran Lambertz retired. He was appointed Justice in 2009. 19 and 20 October The heads of a number of supreme courts 8 March in Europe met in Tallinn within the frame­ The Supreme Court held a meeting work of the Network of the Presidents of regarding the precedent-setting activities the European Supreme Courts. The topic of of the Court in commercial law disputes. discussion was the judicial independence Representatives from, among others, the of the supreme courts. The Supreme Court judicial system, academia, and various or­ of Sweden was represented by President of ganizations participated. Meetings of this the Supreme Court Stefan Lindskog. kind are held to gain an understanding of the issues for which various interested 25 October parties want guidance from the Court. President of the Supreme Court Stefan Lindskog and Justices Kerstin Calissen­ 3 July dorff and Petter Asp participated in the The Supreme Court launched a project Swedish National Courts Administra­ in which all district courts and courts of tion’s podcast (https://domstols­podden. appeal in the country will be given the podbean.com/). They discussed, among opportunity to either visit or receive a other things, the role of the Supreme visit from the Supreme Court at some Court and the creation of precedent. point over the next few years. First off are the courts in the northern Sweden 15 November (Norrland), which will visit or receive The Supreme Court organized another a visit from the Supreme Court in the meeting to discuss the Court’s precedent- spring of 2018. setting activities. This meeting included representatives from district and appellate 4 September courts in discussions regarding criminal, Malin Bonthron became a new Justice of civil and procedural law. the Supreme Court. She trained as a judge in the Svea Court of Appeal and most 31 December recently served as Director-General for Justice Ella Nyström retired. She was Legal Affairs at the Justice Department appointed Justice in 2002. since 2012.

32 33 34 ifteen years on the Supreme Court More than 15 years referred to the Justices for decision, ago, around the the judge referees do impressive work same time as I began in preparing and presenting prece­ serving on the dents, statements and relevant legal Supreme Court, literature applicable to the issues in a major renovation began on the the case. The research is compiled Bonde Palace. When everything was in a memorandum and appendices finished two years later, the entire along with a recommended ruling Court could gather under one roof and distributed to the Justices a instead of being split up into two week or two before the presentation. buildings. The renovation was a step As a consequence of this thorough towards creating a modern work­ preparatory work, views and sugges­ place and greater cohesion among tions on how the verdict should be the Court’s employees. phrased can be exchanged electron­ The biggest changes during my ically just a few days following the time on the Supreme Court have initial assessment in chamber. About concerned the way cases are pre­ a week later, the Justices gather again pared. It has become more important to review the draft judgment. The to as quickly as possible weed out Justice acting as chair makes the and decide cases that are clearly agreed adjustments directly in the not interesting from a precedential electronic document, and each Justice perspective. In reviewing incoming can view the document on a computer cases, the judge referees are assisted screen in front of them. As a rule, by drafting law clerks who are for­ this is when the decision is finalized. mer district court clerks who serve It should be noted that, during my for a few years before taking up first years here, the Supreme Court other positions in the field of law. was already using that system. In this The preparatory work is led by the respect the Court was a pioneer. > heads of the two drafting divisions who ensure that the cases are pre­ pared in the correct order and distributed evenly within the Court. The improved preparatory process is a major reason why the backlog of cases has been significantly reduced and processing times for most cases are short. The purpose is, of course, to facilitate the Court’s main task, i.e. to establish precedents. The work on the precedential cases, which are adjudicated by five Justices, is highly efficient. Before a case is

35 The way the Justices work on the (ne bis in idem). The Court subse­ pre­cedents has more or less remained quently reviewed a petition for a the same, but many of the questions new trial and concluded that it could currently addressed in cases reflect be granted in certain cases where changes in society. Over the past few an individual had been convicted of years, the Supreme Court has ruled tax evasion in violation of the pro­ on issues such as when an online hibition. Following this, the Court auction agreement could be consid­ reviewed a large number of peti­ ered to have been entered into, and tions for new trials in similar cases, whether an electronically signed which affected the Court’s work for promissory note can be classified a long period of time. The cases were as a negotiable instrument. Such handled by a special group of Justices issues were hardly on the agenda and judge referees. 15 years ago. The Supreme Court has gradually A European law on human rights become more outward-facing, which has become increasingly influential can be seen in a number of ways. for the Supreme Court’s rulings. For example, the Court typically 2005 was the first time the Court pub­lishes a post on its website as awarded damages to an individ­ soon a new precedent is established. ual from the state for non-financial These posts explain the rulings in damage when the charges against an accessible way. him had not been tried within a Deliberations can lead to heated reasonable time. That ruling was discussions and complete disagree­ influenced by precedents from the ment. Yet, there is no bad blood European Court on Human Rights. between the Justices during the daily Since then, several other cases have morning coffee break or when they covered compensation claims related go out to have lunch together. It is to violations of European law on difficult to imagine a more intellec­ human rights. tually stimulating legal environment In a plenary decision in 2013, the than the Supreme Court. The good, Supreme Court modified previous enjoyable collaboration with all of precedent and stated, primarily in my skilled and responsible colleagues light of a ruling from the European is yet another reason why it has been Court of Justice, that the Swedish a privilege to be a part of the Supreme principle of double sanctions in the Court for 15 years. form of tax penalties and criminal sanctions in two separate proceed­ ings is not compatible with the pro­ ella nyström hibition against double punishment justice of the supreme court

36 STATISTICS

37 Precedents 150 (number)

120 target 113 100 104 108 90 97 87

60

30

0 2013 2014 2015 2016 2017

Cases for which leave to appeal was granted * 150 (number) *Includes leave to appeal 139 granted by the courts of appeal. 120 126 120 109 90 95

60

30

0 2013 2014 2015 2016 2017

38 Processing times – cases requiring leave to appeal (75th percentile) 5 Approved cases: (months) Cases requiring leave 4.5 4.6 to appeal. 4

75th percentile: target The majority of cases. 3

*Total number 2.6 of cases: 2 5,068 1.8 1.7 Percentage decided by – one Justice: 93.6% 1 – three Justices: 6.1% 0 2013 2014 2015 2016 2017*

Processing times – time to approval for leave to appeal (median) 7 Median: (months) The normal 6.6 6.3 processing time. 6 5.7 5.6 5

4

3.2 3

2

1

0 2013 2014 2015 2016 2017

39 Processing times – approved cases (75th percentile) 25 (months) Approved cases: Cases for which leave 20 to appeal was granted. target 20.5 18 19.2 19.7 19.1 75th percentile: 15 The majority of cases. 14.7

10

5

0 2013 2014 2015 2016 2017

Processing times – extraordinary cases (75th percentile)

15 th (months) 75 percentile: The majority of cases.

12 12.5 *Total number of cases: target 10 929 10.2 9 Percentage decided by – one Justice: 83.7% 7.7 – three Justices: 10.9% 6 7.1 6.2 – five Justices: 5.1%

3

0 2013 2014 2015 2016 2017*

40 Total number of cases not decided 2000 (cases)

1742 target 1500 1505

1122 1000

833 768 500

0 2013 2014 2015 2016 2017

Budget 100 *Outcome: (msek) deficit of approximately SEK 300,000. 84 86 81 82 77 75

50

25

0 2013 2014 2015 2016 2017*

41 The Justices of the Supreme Court stefan lindskog, born 1951, justice since 2008, president since 2016 gudmund toijer, born 1956, justice since 2007, chairman of chamber since 2016 ann-christine lindeblad, born 1954, justice since 2002 ella nyström, born 1950, justice since 2002 kerstin calissendorff, born 1955, justice since 2003 johnny herre, born 1963, justice since 2010 agneta bäcklund, born 1960, justice since 2010 ingemar persson, born 1954, justice since 2010 svante o. johansson, born 1960, justice since 2011 dag mattsson, born 1957, justice since 2012 lars edlund, born 1952, justice since 2012 anders eka, born 1961, justice since 2013 sten andersson, born 1955, justice since 2016 stefan johansson, born 1965, justice since 2016 mari heidenborg, born 1961, justice since 2016 petter asp, born 1970, justice since 2017 malin bonthron, born 1967, justice since 2017 (not pictured)

42 3 Postal address: Box 2066 103 12 Stockholm Visitor address: Riddarhustorget 8, Stockholm