The following brief sketch of the Swedish legal history and the court system may serve as an introduction to the Swedish answers to the questionnaire.

Transcription

1 1 THE STATUS OF ADMINISTRATIVE JUDGES IN SWEDEN by Lars Wennerström and Annika Brickman, Justices of the Supreme Administrative Court The following brief sketch of the Swedish legal history and the court system may serve as an introduction to the Swedish answers to the questionnaire. The Kingdom of Sweden can be said to have emerged toward the middle of the Viking period, around the year A modern unified nation did not emerge until the early 1520s under the Swedish King Gustav Vasa. The consolidation of the powers of the central government was achieved during the reign of Gustav II Adolf who fundamentally reorganized the judiciary during the early 1600s. Under 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. Among the appellate courts were courts in Finland, which was regarded as a major province, and in Estonia. The first professorship in Swedish law was established in Specialized courts arose in the early and mid 1600s and included the Court of Chambers (Sw. Kammarrätten), war and admiralty courts. 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 (Sw. Regeringsrätten) was formed in 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. At the core of the contemporary court system are the courts of general jurisdiction (Sw. allmänna domstolar) and the administrative courts (Sw. allmänna förvaltningsdomstolar). 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 two kinds of courts with distinct rules on subject matter jurisdiction and different procedural rules.

2 2 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 the community and individuals or companies. An administrative case will normally start as an appeal against a decision by a public agency in areas such as taxation, social security insurance, social welfare, compulsory care and licensing. In 2006 there were about criminal and civil cases brought to the district courts and cases brought to the county administrative courts. The total number of judges employed in the two court systems is approximately Many cases in the general as well as the administrative courts are tried by professional judges together with elected laymen. In addition to the general and administrative courts, there are a few specialized courts and tribunals. Some of these, such as the environmental and the land courts belong to the structure of the general courts while others, such as the Labour Court and the Market Court, are independent. The migration courts form parts of the three largest county administrative courts and the Higher Migration Court is a part of the Administrative Court of Appeal in Stockholm. 1. Are there judges specialised in administrative matters? Answer: Judges in the administrative courts are specialized in the legal issues handled by these courts such as for example tax law and social security law and in the specific procedural rules to be followed in administrative cases. They are specialized by professional legal training, most often acquired by on the job training and through courses arranged by the Swedish National Courts Administration (NCA), an authority under the Government which is empowered to support the court system in administrative matters such as budgetary issues, computer technology, payroll administration and training. 2. Is there one or several corps of judges in charge of the functions of administrative judge? Do members of the supreme administrative court and other members of the administrative jurisdiction belong to the same corps? Is there a special corps in charge of Public prosecutor's duties? Answer: All judges in the general and administrative courts, irrespective of the level of the court, belong to the same corps. A public prosecutor represents the state in criminal cases (in the general courts) and the Public Prosecutors Office is a special agency, totally separated from the courts. 1. The recruitment and training of the administrative judges. a) Academic and professional background Who is recruited? Students? Law students specialized in public or administrative law or rather generalists? Civil servants with a first significant experience? If the answer is positive, from which services are they recruited? are they working as civil servants, in governmental agencies, or for local authorities? are they civil servants with a particular specific experience: legal experts or specialists such as experts in town planning, tax litigation or public procurement law, etc.?

3 3 are they local representatives or former members of parliament? Former lawyers? Specialists in other fields? If the answer is positive, do they come from the private sector, from societies working with the public sector? b) The recruitment procedure: Are judges recruited: following a procedure normally applied: application form, exams and interviews? via a competitive examination: after they passed a special examination? Or is it a professional orientation offered to them after a general final exam? after a professional examination opened to persons with a specific diploma or a particular experience? are they appointed in a discretionary manner: by the Minister of Justice, the executive or legislative power? is there only one of these procedures used or are they combined? In the latter case, how are they combined (different procedures for each jurisdiction, depending on the seniority, etc...)? can judges be recruited via a secondment procedure or via a temporary transfer from other public authorities or employers? If it is the case, under which conditions can these temporary arrangements become long-term arrangements? are there special recruitment procedures for civil servants who are bound to have a short-term career? is there a probative period when the magistrate takes up his duties? Answers to questions 1 a b: The judicial career for judges in the administrative courts as well as in the general courts can be described as follows. A professional judge must have a Master of Law degree (LL.M.), which will normally take four and a half year's of university studies. Many of the law graduates subsequently serve as law clerks in a district court or county administrative court. These services are limited to a period of two years. Since the degree of LL.M. is purely academic, service as a law clerk constitutes a vital practical supplement to studies. This training is undertaken irrespective of the area of law in which the law clerk intends to specialize in the future. The law clerk assists the judges in various respects. Towards the end of the term of service, he or she is also competent to adjudicate in uncomplicated cases. A number of the law clerks subsequently apply to become reporting clerks at a court of appeal or administrative court of appeal for a period of twelve months. After that he or she may serve for at least two years as an assistant judge at a district court or county administrative court. The assistant judge is competent to deal with all but the most complicated cases.

4 4 After a period of probation in the court of appeal or administrative court of appeal lasting about one year, during which time the junior judge is co-opted to the bench, he or she is approved as an associate judge. Assistant and associate judges are referred to as non-permanent judges. An associate judge may also serve as non-permanent judge at a district court or county administrative court or as a judge referee to the Supreme Court or Supreme Administrative Court. 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. In recent years, partly due to the increasing difficulty for the judiciary to compete with salaries in the private sector, the way to appoint judges has been discussed. Some argue that the field of potential candidates should be widened. c) Nature and content of the training Nature of the training: Venue: What is the ratio between initial training and continuing education? What is the ratio of academic education compared with work experiences in other jurisdictions (judiciary ones, ECJ, ECHR) or other lawyers' offices (barristers, advocates specialised in pleading before the Supreme Court)? Are judges trained in specialized schools? In special institutes within the jurisdiction? Are they trained by fellow judges? By invited professors? Content of the training: Procedures, substantive law, handling of litigation files, human resources management procedures? Degree of professionalization of the training: Answers to question 1 c: Is there a specialized service? Is there a minimal training procedure for each newly appointed judge, irrespective of his initial training or rank? Is there a possibility to choose to be trained on a specific subject relating to the profession? Swedes believe in learning by doing. There is no law or regulation stipulating a specific training scheme and there is no specific training institution for judges. Still, judges undergo continuous training during the whole career. By and large the training is carried on in line with a scheme worked out by NCA and most courses organized outside the courts are administrated by NCA. The associate judges are, throughout the approximately five years in this position, continuously reviewed by their superiors, who can not, however, interfere with their authority to rule

5 5 independently. While the main focus is on the practice of adjudication, the need of judicial training is increasingly recognized. Associate judges should normally be able to participate in a one-week course approximately every six months. These courses are led by experienced judges, but external lecturers, often from the university or a ministry, are also used. The courses cover different aspects of courts proceedings in courts of first instance and appeal courts and also certain areas of Swedish criminal, civil and administrative law, EC law and human rights issues, court administration and media contact. For newly appointed permanent judges there is an initial two weeks course. After that, on-going training is offered with the aim that every judge shall undergo training regularly. Most of the inservice training is provided by NCA. These courses focus on leadership issues, effective case management and sociological aspects, such as ethnicity. There are also optional shorter seminars on specific topics. Normally, seminars are designed for either the courts of the general jurisdiction or the administrative courts. Judges also attend seminars and courses arranged by private enterprises and open for everyone on a commercial basis. NCAs most important partners in the field of judicial training are the Swedish universities. A considerable number of courses and seminars engage university professors and lecturers. NCA works also with the Swedish Bar Association. Lawyers occasionally act as teachers in courses for judges, but more often they are asked to attend seminars where the perspective of a private practitioner can be beneficial. NCA cooperates with the European Institute of Public Administration, Antenna Luxembourg, and with the European Academy of Law (Trier). Swedish judges also participate in seminars abroad, for example through the Grotius programme of the European Commission. 2. Career development and profiles a) Assessment of professional skills How formal is the assessment procedure? Is there a formal rating procedure? How often does it occur? Is there a formal assessment procedure? How often does it occur? Are the two procedures combined? Answer: There is a procedure of continuous rating and assessing of law clerks and reporting clerks and they are assessed at the end of these services. A formal rating and assessing of a nonpermanent or permanent judge will take place only when he or she applies for a new position. What are the criteria of assessment: quantitative ones, qualitative ones (observance of deadlines, quality of the investigative work..,)? Answer: Both quantitative and qualitative criteria will be used. How are the goals assigned to the jurisdiction in general applied to each of its members? What are the main goals assigned to the judges depending on their function (rapporteur, advocate general, presiding judge, president of a court...)?

6 6 Answer: There are no explicitly formulated goals assigned to judges of any functions, but there are goals set by the Government for the courts, which the presidents and the presiding judges will normally see as their mission to accomplish. Is some of the remuneration result-oriented? Answer: No. b) Rules of promotion and of retirement Rules of promotion Promotion procedures: promotion by seniority? By selection? By a combination of both procedures (according to whether the promotion is from grade to grade or from step to step within the same grade)? Is there a promotion list? If so, what are the criteria used to constitute them? How are they linked to the assessment procedure? Are the recommendations for promotion made public? How centralised are the promotion procedures (are they dealt with at the national, regional level or within each court?). Irrespective of the degree of centralisation of the promotion procedures, is there an organ in charge of the administration and coordination of the corps? Do the profession representatives take part in the promotion procedures? Rules of retirement Is there an age limit? If there is a pension plan, what are the requirements to be eligible: age, minimum period of pensionable service? Can a judge be allowed to work after he has reached the retirement age? Can retired judges be appointed to certain functions? c) Lifelong mobility (location and functions) Rules of appointment to each post - competent authority - ways in which the profession representatives can intervene in the appointment procedure / decision Rules concerning the transfer within the profession Rules concerning the secondment/detachment outside the profession (and practical application) Answer to questions 2 b-c: There is no promotion list. A permanent or non-permanent judge who wants to obtain a higher position has to apply for it. Permanent judges are appointed by the Government on the proposal of a special board. Most of the members of this board are judges and the chairman is the President of one of the Supreme Courts. The trade unions that organize court personnel are also represented. Only objective factors such as the merits and competence of the candidates are considered. Swedish citizenship is needed to be appointed a judge. The suggestions of the board are made public. Judges of the supreme courts and judges in some other

7 7 senior positions are appointed by the Government without prior application. It follows from the letters of appointment of a permanent judge that he or she is irremovable (exceptions below under 3). It follows also that he or she in principle has to accept changes in the location of the office/services if, for example, the court system is altered, courts are closed etc. A judge has to retire at the age of 67, but can choose to do so from the age of 65. A position as permanent judge can not be upheld after the age of 67, but retired judges are frequently appointed as extra judges by the different courts when the personnel situation so requires. They are also allowed to take any other position in the private or public sector. 3. Rights, guarantees and duties a) Legal framework: origins of the rights and guarantees Customary law? Statute law Level in the hierarchy of legal norms: Constitution, law, regulation etc.? Are these provisions specific to the judges or shared wholly or partly with all the civil servants? b) Nature and extent of rights and guarantees List of rules protecting the judges' independence Irremovability? Promotion by seniority only? Arrangement of the disciplinary regime? Is the jurisdiction directly involved in the career development of the judges? Does an organ that belongs to the profession control inspect the courts' activity? Are there judges' trade unions? Are special organs representing the personnel? If so, what are the rules governing their appointment and who can be appointed? c) Professional ethics, standard requirements. Are there some mechanisms aimed at guaranteeing the judges' independence? Are there some mechanisms aimed at controlling the judges' integrity? Obligation of restraint in public expression and behaviour? Are judges bound by a secret on their deliberations? Relations with the lawyers How are the potential conflicts of interests due to the exercise of the judges' duties settled? What are the rules to leave the jurisdiction to the private sector? To the public one?

8 8 Under which conditions can a judge participate in political life? Can he work in the private sector? What are the rules governing the relations between the private life and the professional activity? Answers to question 3 Rules concerning the independence of judges are found mainly in the Swedish Constitution. The independence of the courts is guaranteed. No public authority, nor the Parliament or the Government, can determine how a court shall adjudicate or apply a legal rule in a particular case. The same kind of independence is guaranteed for public agencies. It follows that a minister must not instruct the authorities on how to act in a specific case concerning the exercise of public power over a private subject. On the other hand, a minister will not be held formally responsible for mistakes made by an authority. Still, there may of course be political consequences. Furthermore, no judicial or administrative function can be performed by the Parliament unless provided for by the Constitution or the Riksdag Act (which regulates the internal work and inner life of the Parliament). Legal disputes between private subjects may only be settled by courts unless otherwise provided for by law, as for example in the case of private arbitration. Arbitration tribunals are often used to settle disputes in the business sector. A decision by a court must normally not be reviewed or set aside outside the appeals procedures provided for by law. There are certain possibilities for judicial review by the highest courts in extraordinary cases. There is also a possibility for the Government to issue clemency or reduce sanctions in criminal cases. In exceptional circumstances the Government can also order that no further action be taken to investigate or prosecute a criminal act (abolition), but these powers have not been used since the 1960's. 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 are regulations in labour laws that apply to judges in the Public Employment Act and in a special Act on Public Employment for certain appointed officials. There are also general provisions in criminal law and tort law that apply to judges. Judges are bound by secrecy on their deliberations. The Criminal code contains provisions about certain crimes committed by a civil servant or a judge while performing his duties: breach of duty (or malpractice/malfeasance), corruption and breach against professional secrecy. Only the Supreme Court can deal with a case against a justice of one the supreme courts. The Parliamentary Ombudsmen and the Chancellor of Justice share the exclusive competence to prosecute in such a case. Cases concerning other judges are dealt with by one of the general appeal courts. In tort cases the State is responsible even for pure financial loss when damage is caused negligently by a public agency, a court or a judge in the exercise of power.

9 9 A permanent judge may be removed from office only if he has committed a serious crime or repeatedly neglected his duties and thereby shown himself manifestly unfit to hold the office. Should the decision to remove the 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 that 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 presiding judge can not hold any other office, though he or she could sometimes also work as an expert for the Government or governmental agencies etc. in judicial matters. A judge can also take part in for example political and trade union activities. The system for promotion is described above under the answers to questions 2 b-c. There is one trade union that organizes a majority of the judges. The disciplinary system concerning judges is regulated in the Public Employment Act. Detailed instructions on day-to-day routines in the courts are found in regulations decided by the Government, by NCA or by the court itself. There is no specific code of conduct for judges adopted in Sweden. The Parliamentary Ombudsmen and the Chancellor of Justice supervise all civil servants, including judges. They can criticize a civil servant in public for his behavior and act as prosecutors in cases of serious malpractice. The Ombudsmen and the Chancellor do not comment on the judge in his adjudication of justice concerning a specific case, unless there is an obvious procedural error. A judge is not subordinated to any other judge or official in his adjudication of justice. He fulfils this task under constitutional law and other laws. In certain administrative matters the chief judge of his court has the competence to take decisions concerning his duties in general. The impartiality of a judge can be called into question by the parties or the judge himself ex officio, according to rules set out in Swedish codes of judicial procedure for general and administrative courts.