1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order
The judicial system in Sweden is normally taken to comprise the agencies responsible for ensuring the rule of law and legal security. The courts form the backbone of this system. The rule of law means that the administration of justice and other exercise of public authority must be predictable and consistent, and must be conducted to a high standard. Legal security means that private individuals and other legal entities must be protected from criminal attacks on life, health, freedom, integrity and property. It is crucial that the judicial system, together with society as a whole, works to prevent and combat crime, and to support those who have been victims of crime. In addition, legal security requires an easily accessible procedure for resolving disputes that arise in society.
The courts have an independent status within our Swedish constitution. Neither the Parliament (Riksdag) nor any other authority may decide how a court should adjudicate in a particular case.
1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts
The current constitutional role of administrative authorities goes back to at the least the consolidation of the Swedish state in the 17th century. Under King Gustav II Adolf, the traditional local courts, from which appeal could only be made to the King, were supplemented by appellate courts that adjudicated in the name of the King who in practice still had final authority.
Specialized courts arose in the early and mid-1600s and included the Court of Chambers, war and admiralty courts. King Gustav III established a number of new state institutions including, in 1789, the Supreme Court. Through major constitutional reforms in 1809, a pivotal period in Swedish history when Finland was lost and the Bernadotte dynasty was founded, the Supreme Court effectively achieved independence from the King.
The jurisdiction of the Supreme Court and the courts of general jurisdiction did not encompass administrative cases which were ultimately decided by the Government. To ease the burden on the Government, the Supreme Administrative Court was formed in 1909.
Major governmental reforms were undertaken in the 1960s. Both the police and prosecutors were reorganized and made part of the national state. National district courts were established to replace the local city and country courts. Despite the formation of the Supreme Administrative Court, the Government retained a large sphere of administrative competence that has only gradually – and still not completely – disappeared. The status of the Supreme Administrative Court was markedly improved in 1974, when a system with three instances was introduced and the Court was able to focus on selecting cases of precedential value.
The current central fundamental law, which forms the core of the constitutional system, is the 1974 Instrument of Government. The law is in force since 1975. The procedure in the administrative courts are regulated in the Administrative Court Procedure Act from 1971.
1.3. Criteria of competence of the administrative jurisdiction
At the core of the contemporary court system are the courts of general jurisdiction and the administrative courts. Both kinds of courts have three levels: local courts of first instance, regional courts of appeal and a Supreme Court. There is a clear division of responsibility between the general and the administrative courts with distinct rules on subject matter jurisdiction and different procedural rules.
The courts of general jurisdiction handle criminal cases and civil disputes while the administrative courts resolve a wide variety of cases, typically involving disputes between public authorities and individuals or companies.
2.1. Key founding texts
Like most other democratic countries, Sweden has a written constitution. The Instrument of Government sets out the way in which these State bodies shall work. The opening article prescribes that public power shall be exercised under the law. This affirms the age-old principle that all exercise of power must be in conformity with the law. This applies not just to courts and public administration but also to Government and Parliament. It applies equally to local and central government.
The Instrument of Government’s regulation of the judiciary and public administration are found in chapter 11 and 12. It is stated that the judicial tasks of the courts and the main features of their organization and legal proceedings must be decided by law. Certain provisions are principally intended to support and protect the independence of the judiciary and the administrative authorities. The Parliament may for example not perform any judicial or administrative tasks except to the extent laid down in fundamental law or in the Parliament Act. In addition, no public authority, nor the Parliament or the Government may intervene in court decisions regarding particular cases or in decisions made by authorities in relation to individuals or local authorities, or regarding the application of law.
2.2. Organisation and competence of the administrative jurisdiction
2.2.1. General organisation of the administrative jurisdictional order
Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts?
The administrative courts handle cases relating to disputes between individuals and public authorities and are arranged under a three-tier system; the administrative courts, the administrative courts of appeal, and the Supreme Administrative Court. There are in total twelve administrative courts and four administrative courts of appeal.
The Administrative Courts of Stockholm, Gothenburg, Malmö and Luleå are migration courts that hear alien and citizenship cases as the court of first instance. The Migration Court of Appeal, which is the highest instance for such cases, is a part of the Administrative Court of Appeal in Stockholm.
A case that has been tried by an administrative court could, with some exceptions such as tax cases and cases regarding compulsory care, be tried by an administrative court of appeal, only if the court has granted leave to appeal. Further, leave to appeal is required in almost all cases brought before the Supreme Administrative Court.
Furthermore, the Supreme Administrative Court may upon request review administrative decisions of the Government, if the decision concerns a civil right and cannot otherwise be tried by a court. If the Court finds that the decision is incompatible with a legal provision, the decision may be revoked.
Certain cases, concerning e.g. legal review of a closed case are tried by an administrative court of appeal if the contested decision has been taken by an administrative authority or by an administrative court and then, if granted leave to appeal, by the Supreme Administrative Court. If the contested decision has been taken by an administrative court of appeal or by the Government, the case is tried only by the Supreme Administrative Court.
2.2.2. Internal organisation of administrative courts and composition of the bench of judges
Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)?
In accordance with the general rule, a legally trained judge and three lay judges adjudicate in the administrative courts. A large number of cases are also determined by a single judge.
In the administrative courts of appeal, a case is adjudicated by three legally trained judges if leave to appeal is granted. In certain cases they are joined by two lay judges. When deciding whether leave to appeal should be granted or not, two judges is suffice of their decision is unanimous. Otherwise it has to be decided by three judges.
The Supreme Administrative Court examines cases appealed from one of the four administrative courts of appeal. It also examines appeals from the Council for Advance Tax Rulings. The majority of appeals require leave to appeal, which is granted only if it could be of importance as a precedent, i.e. provides guidance on how other similar cases are to be determined, or if there are pressing reasons to do so (extraordinary leave). Only a small percentage of the cases referred to the Supreme Administrative Court are granted leave to appeal.
The Supreme Administrative Court operates in two divisions. The Court is properly constituted with five Justices on the bench or with four, if three of them are unanimous. In certain cases of simple nature, the Court is constituted by three Justices on the bench. Questions concerning leave to appeal are generally decided by one up to three Justices.
If a division of the Court intends to diverge from a judicial principle or an interpretation of the law previously laid down by the Court, the matter shall be referred to a plenary session of the Court.
2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?
The courts themselves only have judicial functions. However, the Justices of the Supreme Administrative Court occasionally serve at the Council on Legislation which is consulted by the Government to give a statement on important legislative proposals before they are presented to the Parliament. The Council scrutinizes the proposed legislation from the legal view-point and may suggest modifications. Its opinion is not binding to the Government.
2.2.4. Tools and documentary resources available to judges
Judges has access to a library and a wide range of databases.
2.3. Status of administrative judges
How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence?
Permanent judges are appointed by the Government following proposals by the Judges Proposals Board. A professional judge must have a Master of Law degree (LL.M.), which normally takes four and a half years of university studies. Many of those appointed as judge have undergone a special programme for training judges, including service at the court of appeal or administrative court of appeal and district court or administrative court. After successfully completing the service period, the candidate is appointed to the position of associate judge at a court of appeal or administrative court of appeal. It is not unusual for an associate judge to serve outside the judiciary, for example as legal advisor in one of the ministries or as permanent secretary in a government committee of enquiry. Such additional qualifications are in fact often necessary to qualify for a position as a permanent judge.
Most appointed permanent judges in the various courts have followed the career described above. Judges may also be recruited among, for example, lawyers, academics or public prosecutors.
Independence of judges are found mainly in the Swedish Constitution. As briefly described above, no public authority, nor the Parliament or the Government, can determine how a judge shall adjudicate or apply a legal rule in a particular case. Furthermore, no judicial or administrative function can be performed by the Parliament unless provided for by the Constitution or the Parliament Act (which regulates the internal work and inner life of the Parliament).
Statutory obligations by which the judges are bound are mainly found in the Constitution and in codes of judicial procedure for general and administrative courts. There is however no specific code of conduct for judges adopted in Sweden. The Parliamentary Ombudsmen and the Chancellor of Justice supervise all civil servants, including judges.
A permanent judge may be removed from office only if he or she has committed a serious crime or repeatedly neglected his or her duties and thereby shown themselves manifestly unfit to hold the office. Should the decision to remove a judge from office have been made by another authority than a court (in practice by the National Disciplinary Offence Board), the judge concerned may call upon a court to review the decision. A Supreme Court or Supreme Administrative Court justice can only be removed from office if the Supreme Court assents to a request for removal by the Chancellor.
A judge is not subordinated to any other judge or official in his or her adjudication of justice. He or she fulfils this task under constitutional law and other laws. In certain administrative matters the chief judge has the competence to take decisions concerning his or hers duties in general.
3.1. Types of plea
What kind of petition may applicants file before administrative courts? May administrative courts rule on compensatory claims?
Most cases before the administrative courts are lodged by an appeal against a decision taken by an administrative authority. There are two main categories of appeal. The first category encompasses disputes between public authorities and private individuals, such as tax cases and cases regarding social security benefits. The ruling of the court will then relate both to legality and the appropriateness of the appealed decision and the ruling of the court will supersede the decision reached by the administrative authority. This type of appeal aims to control the application of the law by the administrative authorities and to protect individual rights. The second category of appeal encompasses decisions taken by local or regional authorities that operate within the municipal self-government sector. On petition by any individual living in the municipality or region involved, a decision by these authorities can be reviewed by an administrative court. Such an appeal is however limited to assessment of legality of the decision.
Besides the above mentioned judicial remedies, a case can be brought to the administrative courts through an application. In those cases, there is no prior administrative decision. Instead the authority makes an application at the court. This category includes cases involving compulsory care and psychiatric care.
Administrative courts do not rule on compensatory claims.
3.2. Emergency procedures
Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?
There is a general provision in the Administrative Court Procedure Act, which allows an administrative court to stop the execution of an administrative decision before the case is tried on the merits. It also allows the court to take other provisional decisions deemed necessary.
There are also special provisions in for example the Public Procurement Act which allows an intervention before a case is tried on the merits.
3.3. Procedural principles before administrative courts
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
The procedure in the administrative courts is regulated in the Administrative Court Procedure Act.
As a rule, proceedings are in writing although they may include an oral hearing if it can be assumed to be of benefit to the enquiry or could expedite a decision in the case. If an individual party who is presenting the case requests an oral hearing, this should be granted unless it is deemed unnecessary. In certain cases, e.g., the provision of compulsory care, an oral hearing takes place unless it is clearly unnecessary. If, in such cases, an individual requests such a hearing it should always be granted.
3.4. Reference standards for the control exercised by administrative judges
In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
It is necessary to distinguish between the full review of an administrative act in a particular case, both with regard to legality and appropriateness, and a review of the regulation or statute itself which has been applied in the case before the court. The review of the particular decision is delimited only with regard to the petitions made by the parties. These provisions are found in the Administrative Court Procedure Act.
As for statutes, the court has a certain right to in an individual case ascertain whether a statute meets the standards set out by superordinate provisions (like the Constitution or EU-law), so-called statutory examination. If a statute is found to be in conflict with a superior provision it is not applied. These rules are given in the Instrument of Government.
3.5. Scope and nature of administrative judicial review
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
Administrative acts which do not concern rights, obligations or interests of private or legal persons are on principle not open to review by the courts (with the exception of the legal review of decisions taken in the sector of municipal self-government). Decisions taken during the administrative procedure, e.g. to circulate a document for comment, are not open to review unless otherwise stated. Only the final decision may be the object of appeal.
In this context it should be mentioned that there are still some administrative issues where the Government will take the final decision and where there is no ordinary appeal to an administrative court. These issues are such where political considerations are predominant (e.g. city planning, the localization of railways etc.). When such decisions affect an individual’s civil rights he or she has the possibility to bring the decision under review by the Supreme Administrative Court. The review, so called Judicial Review, is strictly legal but takes into account not only the law applied but also general legal principles and the case-law of the European Court of Human Rights. If the Court finds that a legal principle has been infringed the Court may quash the decision. There is a time limit of three months from the day of the decision to apply for such legal review.
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
The Supreme Administrative Court has the power to annul or amend decisions by administrative authorities in individual cases and has the full jurisdiction to assess both facts and law. Decisions by municipal political authorities in individual cases may, however, only be annulled and never amended.
3.6. Dissident opinions
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
Dissenting opinions are allowed in all administrative courts and in all types of cases. In most cases the decision however is unanimous.
3.7. Alternative methods of dispute resolution
Are there alternative dispute resolution methods? Please specify.
There are no alternative dispute resolution methods in the administrative courts.
3.8. Digitised procedures
Is there a specific digital procedure for the submission of claims?
There is not a specific digital procedure for the submission of claims.
4.1. Powers of administrative judges
May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?
As mentioned above The Supreme Administrative Court has the power to annul or amend decisions by administrative authorities in individual cases and has the full jurisdiction to assess both facts and law. Decisions by municipal political authorities in individual cases may, however, only be annulled and never amended.
The Supreme Administrative Court is not empowered to amend administrative acts or to award damages but may issue orders or impose penalty payments to enforce the Courts' decisions, if that is provided by law.
4.2. Impact and authority of administrative judgements
To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two options?
It follows from the nature of the administrative procedure that most decisions are taken with regard to the present situation and therefore are relevant only for the future. Thus, res judicata is not common, but may appear e.g. in cases concerning taxes or a social security benefits for a given period in the past. There is no delimitation as to the possibility to apply for e.g. a license of some kind over and over again.
On principle, a judicial decision produces effects only for the parties.
Previous decisions in similar cases are not binding. The court is free to make a different judgment. Not even the precedents of the Supreme Administrative Court are formally binding, but in practice they are followed.
May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged?
Appeals against administrative decisions must be made within certain time limits, usually three weeks after the formal communication of the decision with the claimant. For tax cases and cases regarding social insurance a longer time limit applies. Authorities and courts are obliged to inform parties about time limits and other formal conditions for appeal.
A court cannot as general rule grant an extension of the time limit for appeal. However, there is a possibility to by an extraordinary means grant an extended time limit in cases where the complainant can prove that he or she could not make the appeal on time because of reasons beyond his or her control.
© AIHJA - IASAJ Copyright