- Over 200 lay judges in Sweden have been the subject of criminal investigations.
- In recent years, 25 lay judges who have been sentenced in criminal cases have subsequently judged in Swedish courts. Aftonbladet, 20 February 2012
- Professor Marcello Ferrada-Noli, ’Sweden: Politically appointed lay judges to judge Assange’
The Swedish legal system features lay judges who are appointed because of their political affiliations to adjudicate in criminal proceedings. They have no formal legal training.
The Swedish legal system differs substantially not only from common law systems but also from most civil law systems. There is no strict division of the judicial and executive branches.
Criminal records of Swedish Lay Judges
Swedish tabloid Aftonbladet began an ongoing series of articles on 20 February 2012 based on the discovery that many of Sweden’s lay judges have criminal backgrounds. There is also a growing and tangible apprehension that organised crime may have gained a foothold in the Swedish judicial system. This story is breaking (21 February 2012).
Currently the following articles are available in Swedish from Aftonbladet.
Aftonbladet: Dömda får döma andra
Aftonbladet: Politiker som struntar i lagen
Aftonbladet: Dömda ska inte få döma
Aftonbladet: Deras krav - kontroll
Aftonbladet: Finns inte på kartan att ett parti skulle lämna från sig makt
Aftonbladet: Kändisadvokaterna kräver ny kontroll
Aftonbladet: Bristerna ger grovt kriminella möjligheten att påverka domstolen
Aftonbladet: GW Persson: Det här funkar inte
The following articles covering the story are available in English from Rixstep.
Rixstep: Sweden’s Lay Judges: Their Criminal Records: Background
Rixstep: Sweden’s Lay Judges: Their Criminal Records: The Splash
Rixstep: Sweden’s Lay Judges: Their Criminal Records: The Crimes
Rixstep: Sweden’s Lay Judges: Their Criminal Records: Politicians Who Defy the Law
Impartiality and independence of Swedish Lay Judges (nämndemän)
Julian Assange’s defence team argued in the February Hearing that he would not face a fair trial in Sweden because he would not be judged by an independent and impartial tribunal. This is a necessary requirement under the European Convention of Human Rights definition of a fair trial (article 6.1).
In a trial in Sweden, Julian Assange will be judged by three non-professional judges and one professional judge. The non-professional judges are appointed by political parties. Julian Assange’s defence team is concerned about their neutrality, especially in this case where the Swedish media has been hostile. On top of this the trial would be held in secret, with no possibility for the public to hold the court accountable to standards of impartiality.
The district court judge did not accept the argument put forward by Julian Assange’s lawyers that he would not face a fair trial because of Sweden’s system of lay judges. The judge’s reasoning was:
"I know that there will be three lay judges in any trial in Sweden. Despite the suggestion that they are selected for their political allegiances, there is simply no reason to believe that they will not deal with the case on the evidence before them[my emphasis]. Any earlier impression of the merits of the case, whether favourable or unfavourable to this defendant, will play no part. The jury system... is robust." (p. 25 of the Judgement).
But the system of lay judges is not robust...
Unlike a jury system, where laymen are selected from a cross-section of society, Swedish lay judges differentiate themselves with regards to age, gender, profession and income from the rest of the population.
A poll in 2008 by the SOM Institute in Gothenberg revealed that 37% of Swedish people consider the competency of lay judges to be low.
A poll in 2011 by Swedish state television revealed that 60% of the professional judges have no confidence in the lay judge system.
The dangers of having lay judges from a xenophobic party (SD) deciding in court cases became a hotly discussed issue in September 2010. The debate came about after the Sweden Democrat party (SD) soared in the Swedish general elections. Asylum determination cases were cited as an example in which party bias could compromise the outcome of the trial.
Christian Diesen, Lecturer in Procedural Law at Stockholm’s University, said:
"It is possible that the SD [Sweden Democrat party] lay judges can influence the atmosphere in court and eventually create a harder climate, especially for migrants. If this happens it won’t be discernible in the reasoning of the court, but it will be visible through longer term statistics of legal decisions... with Ny Demokrati [another extreme right party in the 1990s] one could see a pattern: their lay judges made more reservations than the other lay judges from other parties, and their dissenting opinion had to do with giving migrants from outside Europe harsher sentences than the rest. They also wanted to combine the sentence with deportation to a greater degree than the other judges... there are good reasons to carefully monitor what happens with the SD (Sweden Democrat party) lay judges."
In 2008 a lay judge for the Moderaterna party, Cecilia Uggla, was forced to resign. She was judging at the Arboga murder trial. Uggla stated to the tabloid Expressen that she believed that the person who was accused in the trial she was adjudicating in was guilty, while the trial was still ongoing.
In 2010 a lay judge for the district court in Örebro, Katrin Tensmyr, revealed to the magazine Misstänkt that she wasn’t so much interested in the evidence produced in the proceedings as she was in studying the body language of the defendants.
Concerns about independence and impartiality
Several Swedish jurists share Julian Assange’s concerns about Sweden’s standards of due process, including the independence and impartiality of the lay judges (see Fair Trial for Julian Assange?).
There should only be professional judges, just like we have professional doctors. No one should have to accept being operated on by a medical team that consists of several lay doctors. - Sven-Erik Alhem, former senior prosecutor.
These concerns were explored in a documentary from 2006, Rätten och Rättvisan (Justice and the law). Christian Diesen, Lecturer in Procedural Law at Stockholm’s University said:
"The lay judges see themselves as spokespersons for their political parties in the courtroom. And that is a complete misunderstanding, because when one is in the courtroom, one has to be objective, impartial and neutral, and that is a contrast and paradox - They have misunderstood their mandate if they think they are there because of some mission from parliament... With this political party recruitment, there is a risk that it becomes purely a political party arena in cases that are politically contentious."
Former Chancellor for Justice (JK) Göran Lambertz was also critical:
"With this political party recruitment, there is a risk that it becomes purely a political party arena in issues of strong political antagonism...in many ways it would be better if it was not politicians... or people who had been exposed to politics, who sat there and judged, because questions always arise about why it should be people who belong to a certain party who should judge."
Laymen as judges: lack of understanding of basic legal principles
Christian Diesen’s report Lekmän som Domare (Laymen as Judges) found that lay judges’ political bias and insufficient understanding of basic legal principles was undermining the individual’s right to a fair hearing. In the documentary Justice and the Law Diesen illustrates:
"The judge says this is not enough evidence to reach a conviction - and then the lay judges say, well then he should be fined. And that’s a completely wrong reasoning, because first one has to prove them guilty."
A survey carried out by Diesen tested the legal knowledge of the lay judges:
Most lay judges were unfamiliar with fundamental legal principles. In the knowledge test on important legal questions, similar to those that the lay judges encounter in the courtroom, 63% of lay judges answered the questions incorrectly.
Many acknowledged that their political views determined their decisions in the courtroom.
50% said they wanted to judge according to their political views.
30% claimed to do so.
25% of lay judges considered that if the evidence is weak, one can still convict, albeit with a lighter sentence.
Rixstep: Sweden’s Lay Judges: Their Criminal Records
Aftonbladet: Dömda får döma andra
Henrik Alexandersson, Justice and the Law - Rätten och rättvisan
Christian Diesen - SD lay judges jeopardise the rights of new immigrants
Sven-Erik Alhem - Alhem Calls for an End to Lay Judges
Oisín Cantwell - Do Something About Our Miserable Judicial System
Beatrice Ask: Lay judges can be on their way out
SVT survey: Jurists reject lay judges
Mårten Schultz: Lay judges have outlived their usefulness