ACTIVITY REPORT OF THE SUPREME COURT OF SWEDEN 2 Table of contents A word from the President ___________________ 5 New Justice _________________________________ 9 New Administrative Director _________________ 13 Digitalisation in the Supreme Court __________ 14 The Council on Legislation and the Supreme Court _________________________ 29 Referral leave and fast-track leave ____________ 33 Cases in brief ______________________________ 36 The year in brief ___________________________ 42 Statistics __________________________________ 42 4 word from the President This last year, all ac- deal with sensitive information which tivities in Sweden and might come up in the cases. the rest of the world With these adaptations, with flexibility A have been affected by and the positive mindset of all employ- the pandemic brought on by the coro- ees, the work has, as mentioned, pro- navirus. Of course, this also applies to ceeded well. The quality of our activities the Supreme Court. Like other organi- has been maintained. Yet, there is abso- sations, we have implemented various lutely no doubt that face-to-face meet- safety measures in order to limit the risk ings make things easier when exchanging of contagion. views and discussing complicated issues. Each year, the Supreme Court has a In 2019, we initiated an intensive number of main hearings and other court effort to digitalise our activities in order sessions that parties attend. Yet, the fact to make all case materials available in is that the vast majority of cases brought digital form. Physical files are on their before the Court are decided solely on way out. We launched this change in the the basis of written proceedings. Com- beginning of March 2020, i.e. shortly be- pared to many other courts, this has had fore the pandemic was upon us. Clearly, the natural consequence of making it this profoundly contributed to our abili- easier for us to adapt our activities to the ty to deal with the emerging situation as new conditions. The challenges facing well as we did. the district courts and courts of appeal The Court’s digitalisation work has have been substantially more difficult many aspects. As you will see, digitalisa- given that hearings at which the parties tion is also a subject we address specifi- physically appear are much more of a cally in this year’s Activity Report. rule than an exception in these courts. The coronavirus pandemic has also had Accordingly, with a number of adjust- an impact on the year in other ways. We ments, the work of the Supreme Court have been able to pursue very few other in many respects could be carried on as activities during the year due to our com- usual. The principal difference relative to mitment to keep the activities running in previous years has consisted of the fact combination with the restrictions on pub- that we have used, where needed, digital lic gatherings and travelling. It may be participation in the presentation of said, quite simply, that less has happened reports and deliberations. Justices who in 2020 than is normally the case. have needed to work from home have Among other things, this has meant been able to do so through digital par- that the study-visit project which the ticipation via audio and video and with Supreme Court has organised in re- full access to the same documents as the cent years has now been put on hold. Justices who were physically present. In This project was described in the 2018 a similar way, other employees such as Activity Report. The project involves Su- judge referees and court clerks have been preme Court visits to district courts and able to work remotely when required. courts of appeal throughout Sweden. Through our technical systems, we have The purpose is to describe our activi- been able to ensure that we can securely ties and specifically explain our work 5 procedures in producing precedents in One thing that also should be men- various legal areas. During our visits, tioned is that we have decided a case district courts and courts of appeal can in plenum during the year. This means also describe their activities, and it is that all sixteen Justices participated in an opportunity to discuss various issues the ruling. It is far from every year that and address shared points of interest. the Court makes a plenary decision. The The study-visit project will be reinstated grounds for an examination in this man- as soon as possible. ner in certain cases are found in Chapter The pandemic has also largely brought 3, Section 5 of the Swedish Code of all international cooperation to a stand- Judicial Procedure. In somewhat simple still. As regards the Nordic countries in terms, the provision entails that, where particular, there is close and relatively it appears in a case addressed by five extensive cooperation between the Justices that there is a majority which di- supreme courts. A variety of legal issues verges from a legal principle or an inter- frequently arise at roughly the same pretation of statutes previously adopted time in these countries. Often, these by the Supreme Court, a decision may be involve questions relating to the Euro- taken that the case is to be examined by pean cooperation and rulings from the the Court in plenum. The background of European Court of Justice or the Euro- the provision is that the Supreme Court, pean Court of Human Rights. Accord- as a main rule, is bound by its previous ingly, the possibility to hold discussions precedents and that it is accordingly with Nordic colleagues is very valuable. necessary to carry out an examination Considering the great similarities of our by means of this special form in order to legal systems and, in many ways, also deviate from a legal principle which was our societies in general, such exchanges established by an earlier precedent. are particularly rewarding. The plenary case examined this year Nonetheless, there have been some involved the question of whether there activities during this year. The Supreme was cause to deviate from the findings Court was joined by a new Justice, Johan of the Supreme Court in a ruling from Danelius, who will be presented in great- 2007 (NJA 2007, p. 993). Specifical- er detail in the Activity Report. ly, the issue in the case was whether We have also been joined by a new a person who had been the subject of administrative director. In a court such a restraining order could procure an as ours, the administrative director plays examination of the restraining order a highly central role. Since I am involved notwithstanding the fact that the term of to a high degree in the judicial activity the order had expired. of the Court as its President, the admin- The result of a plenary examination is istrative director performs a number normally a reference to the case in the of tasks which are carried out in other customary manner in the New Legal Ar- courts by chief judges or senior judges. chive series (NJA). However, the new le- The new administrative director, Ma- gal principle which has been established ria Edwardsson, is presented in greater by virtue of such a ruling is also noted in detail in the Activity Report. a special memorial book at the Court. 6 We have described in previous Ac- of the utmost importance that the Su- tivity Reports the exchanges between preme Court is afforded good opportu- the Supreme Court and Supreme Ad- nities to contribute to legal developments ministrative Court. Since 2017, it has in all branches of law. been possible for a Justice from one of I hope you will find this year’s Activity these courts to serve on the other. This Report informative and that it will pique so-called criss-cross service can occur in your interest. I wish you good reading. respect of both single cases and for ex- tended periods of time. In 2020, Justice ANDERS EKA Svante O. Johansson served during the JUSTICE AND PRESIDENT OF THE spring on the Supreme Administrative SUPREME COURT Court, and Justice Erik Nymansson served during the corresponding period of time on our Court. This possibility for an exchange is valuable in many ways and also exemplifies the close coopera- tion between the Supreme Court and the Supreme Administrative Court which is a regular feature in several areas. In one article of this Activity Report, Justice Johnny Herre addresses the spe- cial procedural tools which are usually referred to by their popular names, re- ferral leave and fast-track leave. In brief, referral leave entails a possibility for the district courts and courts of appeal to get an issue which is of precedential value examined by the Supreme Court while the case is still pending before the lower court. Fast-track leave provides the Supreme Court with a possibility to grant leave to appeal for an issue which is of precedential value notwithstanding that the court of appeal has decided not to grant leave to appeal regarding the ruling of the district court. As described in the article, the background of these provisions is principally the fact that the number of civil cases which reach the Supreme Court has declined over the years. Provisions of this type improve the Court’s possibilities to provide guiding rulings also in the area of civil law. It is 7 Johan Danelius Born 1968 Law degree awarded from Stockholm University, 1993 Associate Judge of the Svea Court of Appeal, 2000 Service in the Ministry of Justice, 2000-2009 and 2012-2015; Legal Expert, Deputy Director, Senior Adviser and Director Positions in law firms, 1993 – 1994, 1996 and 2009 – 2012 (most recently as attorney and partner at Hamilton Advokatbyrå) Temporary Director for Legal Affairs, Ministry of Justice, 2015–2016 Director-General for Administrative Affairs, Ministry of Justice, 2016–2020 8 ew Justice A new Justice joined the Supreme Court in 2020.