The Court of Appeal.

Transcription

1 There are six Courts of Appeal in Sweden. The Court of Appeal If you are dissatisfied with a judgment or a ruling reached in the District Court you can appeal to the Court of Appeal. The Court of Appeal tries criminal cases, civil cases and matters that have already been heard in the District Court. COURT OF APPEAL FOR UPPER NORRLAND COURT OF APPEAL FOR LOWER NORRLAND SVEA COURT OF APPEAL COURT OF APPEAL FOR WESTERN SWEDEN GÖTA COURT OF APPEAL SCANIA AND BLEKINGE COURT OF APPEAL 16

2 The Court of Appeal

3 If is a fundamental right to have your case tried by an impartial court of law. It is the task of the courts to deal with cases and other matters efficiently and in accordance with the rule of law. The general courts comprise District Courts, Courts of Appeal and the Supreme Court. These are the courts in which criminal cases, family cases and civil cases between companies or individuals are settled. Cases that are decided in the District Court can in the majority of instances be appealed to the Court of Appeal. The judgments and rulings pronounced by the Court of Appeal can in certain instances be appealed to the Supreme Court. Rulings by the Supreme Court offer guidance for the Courts of Appeal and the District Courts and cannot be appealed. Publisher responsible under Swedish law: Swedish National Courts Administration. Production: Swedish National Courts Administration/ARK-tryckaren, February Photos: Carl-Johan Ericsson. Printed by: ARK-tryckaren. Ref. No

4 What does the Court of Appeal do? If you are dissatisfied with a judgment or a ruling from the District Court, you can appeal to the Court of Appeal. The Court of Appeal hears criminal cases, civil cases and matters that have already been dealt with in the District Court. In many cases a decision is required known as leave to appeal for the Court of Appeal to hear an appealed case in full. In Sweden there are six Courts of Appeal that handle cases deriving from their geographical area. The Courts of Appeal have permanent judges, judges who are undergoing judicial training, court officers and administrative staff. A number of lay judges are also attached to the Courts of Appeal. The most common cases Many types of cases that have been heard in the District Court can be appealed to the Court of Appeal. The most common cases are: Criminal cases. If someone has committed an act punishable by law, the police and the public prosecutor can investigate what has happened. It is the task of the court to examine whether the prosecutor, with the aid of an enquiry, can prove that the accused has committed the crime alleged by the prosecutor. The crime in question could for example be a crime of violence or theft, involve drugs, or be a tax or traffic offence. Civil cases. If two parties fail to agree, a dispute arises. If the parties cannot resolve the dispute between themselves, it can be heard by a District Court. This is what is termed a civil case. The most common disputes are family disputes and disputes involving money. If the dispute is a family dispute (such as parents who are unable to agree on custody of their child, access to their child or where their child should live) this is known as a family case. Matters. Examples of what are termed matters include applications for adoption, appointment of a trustee, estate administrator and receiver. Supreme Court 6 Courts of Appeal 48 District Courts The Courts of Appeal are second-instance courts for appeals in civil cases, criminal cases and matters that have been decided in the District Courts. 3

5 What does an appeal involve? A person who is dissatisfied with a judgment or a decision in the District Court can in the majority of instances appeal to the Court of Appeal. An appeal is filed in writing and the judgment from the District Court contains details of the appeal procedure. An appeal does not automatically lead to a new hearing and a full examination in the Court of Appeal. Leave to appeal is required in less serious criminal cases and in all civil cases and matters. The appeal governs the trial by the Court of Appeal The appellant is the person who is seeking a change in a judgment reached by a District Court. The change can apply to the whole or part of a judgment. If the Court of Appeal decides to take up the case for a new hearing, it is the appeal that is the governing factor. This means that adjudication by the Court of Appeal does not necessarily apply to the whole of the District Court judgment. When does the Court of Appeal grant leave to appeal? Grounds for granting leave to appeal could be that the Court of Appeal is doubtful whether the District Court has ruled correctly or if a judgment in a higher court could offer guidance on how the District Courts should decide in similar cases in the future. If leave to appeal is not granted in a particular case, the District Court judgment stands and the case is concluded. 4

6 Legal advice and costs in a case It is vital that a court remains objective and impartial and consequently the Court of Appeal is not permitted to provide legal advice. A law firm can provide advice on a range of legal issues and on how a case in the Court of Appeal can be handled. In the majority of instances a hearing is held at no cost to the parties. If you need to engage legal counsel this is a cost that you usually cover yourself. Legal support in conjunction with a criminal case A person who has been the victim of a crime the injured party* can receive help from counsel* specially appointed to act on their behalf. There is no cost to the injured party. As a defendant* accused of a more serious crime, you have a public defence counsel, i.e. a defence lawyer*. The cost of public defence counsel is met by the state although the defendant can, if he or she is found guilty of the crime, be obliged to repay the costs. Depending on his/her income, the defendant must repay either the whole or part of the cost incurred by the state for counsel for the injured party and for the public defence counsel. Even if a defendant is not entitled to public defence counsel, they are always entitled to be represented by a lawyer of their choice. In the case of private defence counsel, it is the defendant who pays the cost. Legal support in conjunction with a civil case In civil cases the party that loses the case is normally the one that pays the legal costs for both parties. In family cases, the parties generally pay their own costs. Payment to parties and witnesses Defendants and witnesses are entitled to some reimbursement for loss of income and for travel and subsistence costs. A similar payment can also be made to the defendant if he or she is found not guilty of the crime. Further information Further information about preparations, fees and costs in conjunction with a hearing can be found on the following websites: Swedish National Courts Administration Crime Victim Compensation and Support Authority Legal Aid * Who s who in court? See pages 8-9 5

7 Hearing in the Court of Appeal 6

8 Terms used in the Court of Appeal Main hearing What is commonly referred to as a trial. Parties The individuals who are affected directly by a case or a matter, such as the defendant, injured party, prosecutor, appellant and respondent. Witnesses and counsel are not classed as parties. Injured party The person who has been a victim of a crime. Defendant The person who has been charged in a criminal case. Plaintiff The person who has brought a civil action in the District Court, i.e. the person who has sued someone. Respondent The person who has been sued in a civil action the appellant s counterparty. Appellant and counterparty The party who has appealed a District Court judgment is known as the appellant. The counterparty is the other party in the appealed case. Counsel A person who has power of attorney to appear on behalf of a party, i.e. to represent the party in court. Counsel is often a lawyer or a person with legal training whose task is to provide the party in question with legal assistance. 11

9 Hearings in the Court of Appeal In a case in which leave to appeal has been granted, a new hearing often takes place in the Court of Appeal. In the majority of cases witnesses and plaintiffs do not need to be present, but if a person is summoned to a hearing he or she must attend. A hearing is a meeting where the court listens to the information presented by the parties, the examination of the parties and other evidence. In court this is known as the main hearing. The hearing is oral, which means that the parties involved present what is important in order for the court to try the case. Recordings of examinations are played back In a hearing in the District Court all examinations are video-recorded. If, for example, a criminal case is later appealed and reheard in the Court of Appeal, the plaintiff and the witnesses often do not need to go to the Court of Appeal. They have already given their testimony in the District Court and the court will instead refer to the recorded examinations. This means that the Court of Appeal bases its decision on the same material that formed the basis for the ruling reached by the District Court. The Court of Appeal may, however, deem that a new examination is required. In that case the court will summon the person for supplementary examination. In most cases witnesses do not need to attend All examinations in the District Court are videorecorded. If a case is appealed and is heard in the Court of Appeal, the recorded examinations are played back during the hearing. As a result, the plaintiffs and witnesses in the majority of cases do not need to be present again. Is it compulsory to attend a court hearing? Everyone who is required to take part in a hearing will receive a summons from the court and in that case they are obliged to attend. If a person fails to attend, the hearing may need to be postponed, which would result in significant costs to the community and problems for those who have come to court. If a person is summoned to a hearing and fails to appear, they could be ordered to pay a fine, i.e. a sum of money, and in certain instances they could be brought to the court by the police. In the Court of Appeal, parties in civil cases and the defendant in criminal cases must as a rule attend the hearing. In certain cases the injured party and witnesses will also need to attend. 7

10 Roles in the Court of Appeal in criminal cases 1 COUNSEL FOR THE INJURED PARTY. Counsel for the injured party provides the injured party with help and support and safeguards his or her interests. The counsel has legal training and is often a lawyer. 2 INJURED PARTY. The injured party is the person who is the victim of a crime. 3 PROSECUTOR. It is the task of the prosecutor to lead the preliminary enquiry, decide on the charges and present the case in court. The prosecutor works on behalf of the state LAY JUDGES. The lay judges adjudicate together with the legally qualified judges. Lay judges do not have legal training and have other professions. They and the legally trained judges each have a vote when the judgment is made. 5 COURT MEMBER. The court members (legally trained judges) are responsible for pronouncing judgment together with the presiding judge and the lay judges PRESIDING JUDGE. The presiding judge (a legally trained judge) presides over the hearing and is responsible for pronouncing judgment together with the other judges and the lay judges. 8

11 7 RECORDING CLERK. The recording clerk notes what has been said during the proceedings and is responsible for the technology used in the courtroom. 8 DEFENCE LAWYER. The defence lawyer assists the accused during the hearing. A public defence lawyer is a defence lawyer appointed by the court DEFENDANT. The defendant is the person who is accused of committing a crime INTERPRETER. An interpreter helps parties and witnesses who cannot speak Swedish or who have speech or hearing impairments. 11 GENERAL PUBLIC. In the majority of cases, court proceedings are open to the public. 12 EXPERT. Experts have specialist knowledge in a particular field related to the case. They could, for example, be a doctor or a psychologist WITNESS. A witness presents an account of something they have seen, heard or know and which could be of importance to the hearing. Judgment and sanctions When the case has been decided, the court sends the judgment by post to the parties. Sometimes the judgment is pronounced as part of the hearing. If a person is found guilty of a crime, a punishment is decided at the same time what is known as a sanction. This could take the form of a fine, a conditional sentence, probation or imprisonment. There are special sanctions for young persons and persons who are in need of care. 9

12 The rule of law for everyone The Swedish legal system is required to safeguard legal certainty for the individual. This means that everyone is equal in the eyes of the law. Concrete examples of the rule of law are that all hearings are conducted in the same way throughout the country and that they take place in Swedish with the aid of an interpreter if necessary. All persons involved in the hearing should be treated equally, regardless of social standing or origin. Open hearings offer insight The main rule is that hearings are held in public. Openness of judicial proceedings is one of the cornerstones of a democratic society and is a means of providing individual citizens with insight into the way the authorities operate. However, when classified information is being dealt with, only the judges and the parties are permitted to be in the courtroom. This is termed proceedings held in camera. Public access to documents The Swedish principle of openness of judicial proceedings also includes the right to request documents in all cases. However, certain information could be classified. Other languages in court Hearings in Swedish courts must be held in Swedish. In certain courts it is possible to plead your case in a minority language Sami, Finnish or Meänkieli. A person who is unable to speak Swedish is entitled to an interpreter. An interpreter can also be summoned if parties, witnesses or other persons involved have speech or hearing impairments. The cost of an interpreter is met by the court. Appealing a judgment Further fundamental aspects of the rule of law are the opportunity to appeal a judgment and to have a case reheard. The task of the Court of Appeal is to hear cases that have been decided in the District Court. Cases that have been decided in the Court of Appeal can in turn be appealed in the Supreme Court. In principle, the Supreme Court only hears cases that could offer guidance on how District Courts and Courts of Appeal should decide in similar cases in the future. In the vast majority of criminal cases and civil cases the Court of Appeal is the court of last instance. 10

13 Evidence and legal issues are the focal points We hear cases that have been appealed from the District Courts. These include criminal cases, civil cases and other matters. There are always several legally trained judges involved when cases are to be tried in the Court of Appeal, explains Ulrika Stenbeck Gustavson, Judge of Appeal at Svea Court of Appeal. For the Court of Appeal to hear a case, leave to appeal is often required. This applies in all civil cases, in all matters and in less serious criminal cases. The majority of criminal cases that are appealed do not require leave to appeal and must always be heard in the Court of Appeal. Leave to appeal how does it work? When we deal with the issue of leave to appeal, we first conduct a preliminary review of the case, Ulrika Stenbeck Gustavson says. If after doing so we are unsure that the decision of the District Court was correct, we allow an appeal to be filed and we hear the case in full. If we do not grant leave to appeal, the judgment of the District Court stands. We are generous in our assessment of whether or not to grant leave to appeal in civil cases. Leave to appeal is granted in approximately 40 per cent of civil cases. An essential aspect of the rule of law is that 12

14 a person can have their case heard in a higher court. Leave to appeal can also be granted if a ruling could be of guidance in other similar cases. The same procedure as in the District Court? The difference between the District Court and the Court of Appeal is that the District Court examines the case in detail and ascertains what the parties wish to say and what evidence should be presented. Often these are oral hearings and a decision is pronounced in the form of a judgment or a ruling. The Court of Appeal tries a case in more or less the same way as in the District Court with the difference that the decision of the District Court is used as a starting point. As the investigatory work has already been done, the Court of Appeal has greater scope to concentrate on the evidentiary and legal issues of the case. Certain cases in the Court of Appeal do not require a hearing in the same way as in the District Court. Instead, a judge who is undergoing judicial training prepares the case, presents his or her legal examination and submits a proposal to the court stating how it should rule in the case. In a presentation of reports of this nature, the parties are not present. Nor is the presentation of reports made in public. Witnesses are normally not re-examined In most instances the Court of Appeal does not summon witnesses and injured parties for examination. Instead, video recordings of the examinations of these persons in the District Court are played back. This means that witnesses and injured parties do not need to attend the hearing in the Court of Appeal as the examinations have already been conducted. This could be a relief for witnesses and plaintiffs, who avoid having to be present in a setting that could make them feel anxious or uncomfortable. Use of video-recorded examinations means that fewer hearings are postponed as the testimony of the persons who have been examined is already available. An essential aspect of the rule of law is that a person can have their case heard in a higher court. Sometimes the court could rule that additional information is necessary, or that new witnesses need to be summoned for examination. This generally takes place at the request of one of the parties. Questions may need to be asked that were not asked in the District Court. In that case we summon persons to the Court of Appeal for examination so that they can respond to the supplementary questions. It could also happen that a completely new witness has emerged who was previously unknown and who was not examined in the District Court. 13

15 Court of last instance in the majority of cases When the hearing has been concluded, the court deliberates. There are more judges in the Court of Appeal than in the District Court. The court always comprises at least three legally qualified judges and in criminal cases lay judges also take part in deciding the case. With more judges there is a greater chance of discovering something that an individual judge might have missed previously, explains Ulrika Stenbeck Gustavson. It is good that we always have more colleagues to discuss the case with and that we can help each other to arrive at a well considered decision. If you wish to appeal a judgment from the Court of Appeal, this is done in the Supreme Court. The Supreme Court only hears cases that could constitute a precedent cases that offer guidance on how the District Courts and the Courts of Appeal should decide in the future. This seldom happens and in practice the ruling of the Court of Appeal is generally the final ruling. What would a normal day be like for you? There is no normal day. On some days we attend presentation of reports and we manage to bring a number of less extensive cases to a close in one day. Sometimes we can be involved in a case that could last a month; in some instances up to a whole year. But generally, each judge has several hearings during the course of a week. The Courts of Appeal have court attendants who keep order and who can answer visitors questions. 14

16 The court a safe and secure place Swedish courts are characterised by openness and accessibility. The Court of Appeal should be a secure and safe place for everyone parties, witnesses, the general public and employees. A hearing should be conducted calmly and factually. Good order is important for all those who are taking part, such as parties and witnesses. Safety during a hearing The majority of courts have attendants who are responsible for maintaining order in the waiting area outside the courtroom. If the situation requires, they can also be present in the courtroom during the hearing. In cases where there is a threat scenario, the hearing can take place with the support of various security measures, including security controls. This means that everyone who visits the court must pass through a security gate and their bags are x-rayed or examined to ensure no dangerous objects are taken into the courtroom. Waiting room for plaintiffs and witnesses All Courts of Appeal can offer a specially designated waiting room for injured parties and witnesses as an alternative to the large waiting area. The waiting room is a separate room where it is possible to prepare in peace and quiet. The court is open to the public Court hearings are generally open to the public. However, on certain occasions hearings take place in camera, which means that only the judges and the parties are permitted in the courtroom. Witness support If a witness or an injured party requires support, they can contact Witness Support. Witness Support officers work on a voluntary basis with informing and supporting people in conjunction with a hearing. 15