Response to interpellation 2023/24:133 on anonymous witnesses
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
The debate concerns the introduction of anonymous witnesses to combat serious organized crime and a culture of silence. M believes that the government is working purposefully to break the culture of silence 1 and advocates for anonymous witnesses to protect individuals in vulnerable situations 1. M argues that it is legally sound and necessary to explore new paths 2, where anonymity is guaranteed through confidentiality and false information is punished 1. M emphasizes that a Swedish model creates justice in the information 3 and that the court can weigh anonymous evidence lower 3. MP considers the proposal absurd 4 and creates legal uncertainty 5. MP intends to vote no 6.
Written by AI in advance and may contain errors. The numbers lead to the speech a statement builds on; check against the text below.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Rasmus Ling has asked me whether, in my contacts with my Nordic counterparts, I have received the impression that the measure to introduce a system with anonymous witnesses has been groundbreaking, given the extremely few cases it has concerned.
He has also asked me if I share the fear that the willingness to testify openly may risk decreasing further when the possibility to testify anonymously is introduced for some, and if I, in that case, intend to take any measures.
He has also asked me if I can guarantee that the identity of an anonymous witness is never revealed and, if that is not the case, whether I will take any initiatives to clarify the state's responsibility in such cases.
Finally, he has asked me if I see any risks that the system of anonymous witnesses could lead to more false testimonies but that it will be difficult to prove, and if so, how I intend to act to reduce those risks.
Let me first state that the government is working purposefully to push back organized crime and restore safety in Sweden. It is about striking against gross violence, strangling the criminal economy, and breaking the recruitment of children and young people.
In that work, we are dependent on people daring to tell the police, prosecutors, and the court what they have been involved in, heard, or seen. But a system-threatening culture of silence has grown too strong. Today, there are many who, out of fear of threats and violence from criminal networks, do not dare to testify or at all speak with the justice system. This complicates criminal investigations and thus the justice for crime victims. It also jeopardizes trust in the rule of law and, in the long run, irreplaceable parts of our democracy.
Sweden is one of the few countries in Europe that has no possibility of guaranteeing anonymity for a witness who risks being subjected to threats and reprisals during the legal process. Systems with anonymous witnesses exist in, among others, Norway, Denmark and Finland.
As Rasmus Ling points out, the possibility in these countries to testify anonymously has not been used to any great extent. But the social development in Sweden differs to a large extent from that in our Nordic neighboring countries. In Sweden, the gross organized crime has taken hold of society in a completely different and more profound way. The structures and the culture of silence that surround this crime must be broken. Several measures are required to break these patterns. One important measure is the introduction of a system with anonymous witnesses in certain cases.
In October, I received the partial report from the Inquiry on Anonymous Witnesses (SOU 2023:67). In the report, the inquiry proposes that a system with anonymous witnesses should be introduced in criminal cases. The possibility of testifying anonymously shall, according to the proposal, be limited to serious crimes, and for anonymity to be granted, there must be a tangible risk that the witness or their relatives will be subjected to serious crime if he or she testifies in the case.
In most cases, it will therefore not be possible to testify anonymously. It is therefore important to also take measures to increase people's willingness to testify even in normal cases, i.e., in all situations where witnesses will not be able to be protected by anonymity. The Government will therefore take a broad approach to witness issues, including through various initiatives to increase people's knowledge of what rights and what protection witnesses have.
I also want to mention that the Inquiry into Anonymous Witnesses also looks at other issues of importance, such as crown witnesses, early interrogations and various confidentiality issues regarding preliminary investigations. The Government is also prepared to tighten the penalties for those who threaten or in other ways attempt to silence witnesses. Those issues are included in the large review of criminal law that is currently underway.
The central issue in a regulation of anonymous witnesses is, of course, that anonymity can be guaranteed for those persons who have been given a promise to provide information anonymously. In order for a witness to feel secure that the anonymity remains throughout the entire legal process, the investigation therefore proposes that the same rules shall apply during the preliminary investigation and in court. Information regarding witnesses' identities will, according to the investigation's assessment and proposal, be protected by secrecy.
Finally, I want to emphasize that for the trust in our legal system, it is also important that society intervenes with powerful measures against witnesses who deliberately provide false information. In that context, it is clear that witnesses who are heard anonymously are subject to the same criminal liability as other witnesses. On July 1, 2022, the provisions on perjury were amended so that more cases can be assessed as serious and thus lead to significantly harsher penalties. At the same time, the penalties for various forms of false accusations were also tightened. The Government will follow the outcome of that reform very closely.
If we do as we have done so far, we can assume that it will also go as it has gone so far. That is not an option for this government. The culture of silence must be broken, and we are prepared to try new ways to achieve that.
Rasmus Ling (MP)
Mr. Speaker! Thank you for the detailed answer, Minister!
Let me start with a small clarification. I will link it to this issue. But I cannot help but, in this context, bring up the statement that the Minister for Justice made the other day, when he opened up for withdrawing citizenship and making people stateless. It is a completely absurd proposal and statement. We will have reason to return to it, but there is a bit of a queue before one can get answers in the chamber. But it may also come to be discussed in the Committee on the Constitution.
Mr. Speaker! I want to bring this up because it shows that the compass that Gunnar Strömmer previously had regarding legal certainty and the rule of law principles has been thrown very far away. It is said that the lines never blur. But in this case, they appear to have done so. The fragment one can see when it comes to the issue of anonymous witnesses is that the organization Centrum för rättvisa, which Gunnar Strömmer formed once upon a time, is included on the otherwise rather short referral list. It feels more like a sting of conscience than anything else.
The issue of anonymous witnesses is incredibly important, and I view the fact that the preparatory process is not being handled better very seriously. Two months is far too short a time for one to be able to fully turn this over and around, and important actors are also missing.
Mr. Speaker! The Government argues that the use of anonymous witnesses would be pattern-breaking. When one looks at how this has been used in our neighboring countries, one can observe that it is extremely little. In Norway, which has had this system for 20 years, there is not a single person in the Norwegian justice system who can remember a single case where it has been used. In Finland, it is under 12-13 times on one occasion, and in Denmark a couple of times during the same period. At the same time, the Government and the Minister for Justice argue that this would be pattern-breaking. What is meant by pattern then? Is it a pattern with one or two cases in 10 years and no cases during 20 years - in any case, no cases that anyone remembers?
Of course we have worse problems in Sweden, but it has not always been that way. Denmark has had a worse situation than Sweden; despite that, this has not been something that has been used with any particular frequency.
Mr. Speaker! If we do as we have done so far, we can assume that it will go as it has gone so far, said Gunnar Strömmer at the end of the speech. I want to mean that if one has a problem and takes measures that worsen the problem, one will not reverse the development. If we had problems with more injured in traffic, I do not think that Gunnar Strömmer or any colleague of his would propose the abolition of seat belt laws and believe that it would reverse the statistics. One must take measures that lead in the right direction.
Had this proposal led to a small but positive effect, I would have been open to it. But it will lead to negative effects, because it will create an expectation among people to be able to testify anonymously when they will not be granted that except in extreme cases.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! I note that Rasmus Ling is now ramping up the rhetorical tone without supporting it with particularly strong factual arguments, regardless of whether the question concerns anonymous witnesses or citizenship.
I would still like to start with the anonymous witnesses, which is the main issue for today's debate. One might wonder, since Rasmus Ling points out what he considers a lack of empiricism regarding the arguments for anonymous witnesses, on what empirical basis he draws such confident conclusions about the negative effects it would have. It would be interesting to hear which study of experiences in Finland, Denmark, and Norway lies to the foundation of these absolute claims.
My firm opinion is this: We can see from our Nordic neighboring countries that they, unlike Sweden, have an opportunity to meet witnesses in an extraordinarily vulnerable situation - under threat, due to very serious crime - and in that context offer an opportunity to testify anonymously. The motives for that are very strong.
It is about the importance of being able to protect people in a very vulnerable situation and ensuring a channel into the justice system so as not to undermine the trust in the relationship between the citizens and the justice system, and also arranging it in such a way that it is both legally secure and effective. That it is possible to do it in a legally secure way, we know, based on the fact that other democratic states of law do so. We know it because the European Court of Human Rights has reviewed the issues. They have concluded that it is very much compatible with the right to a fair trial according to the European Convention to design such systems, provided that one does it in a legally secure way – and that is what we are doing.
We can learn other things from our Nordic neighboring countries. One concrete aspect, where I myself have been critical of the Norwegian model, is that the defendant's counsel there receives information about the witness's identity but is not permitted to disclose it to their client. As a former lawyer, I mean that would create an unreasonable situation regarding the relationship between the lawyer and the client. Our investigator has solved this by stating that neither the party nor the court shall have knowledge of the witness's identity, that is to say, everyone shall have access to the same information—neither more nor less—to guarantee legal certainty and also the fairness of the process.
When it comes to the empirical evidence, it is a reality that the reality we are now to handle, in light of the eight years that Miljöpartiet has been part of governing this country, is a reality where the culture of silence has gripped our society so tightly and created such a distance between the citizens and the justice system that we must be prepared to try new paths. We must, in short, be prepared to acquire our own empirical evidence, and we only do that if we dare to take the necessary steps.
Should it turn out in five to ten years that this has the unwanted effects that Rasmus Ling, without pointing to any empirical support for his claims, is now highlighting, then we must well be prepared to reconsider the issue. But to not dare to take new steps in this area, I would say, is irresponsible given the serious situation that Sweden finds itself in.
My direct question to Rasmus Ling is whether Miljöpartiet intends to vote no to a proposal that provides an opportunity to, in particularly vulnerable cases, in connection with particularly serious crime, offer an opportunity for witnesses to provide information anonymously to the justice system.
Rasmus Ling (MP)
Mr. Speaker! We have not seen the bill yet, but on the question of whether we will vote no to a system with anonymous witnesses, I can answer yes with considerable certainty.
Mr. Speaker! The issue of witness protection is incredibly important. I do not think it can be overemphasized, and I believe we are very much in agreement on that. It is a key to ensuring that more crimes can be solved and that more people who have committed crimes can be convicted. It is absolutely crucial, and I believe we are completely in agreement on that.
The Minister of Justice asked with what empirical evidence and certainty I say that this will have negative consequences. Well, I cannot say that there is any empirical evidence because no government previously in this tone has said that they are moving forward with such a proposal, that it is to be pattern-breaking, and that it is to have such effects. It has not been done previously. The empirical evidence is lacking – but it will come.
Mr. Speaker! I want to point out that this message has already been conveyed. Probably, the will to testify openly has already been damaged, for the reason that the government has promised that an opportunity to testify anonymously will be introduced.
I do not think that anyone who has been a witness to a crime thinks it is particularly comfortable to testify in court. It is not a pleasant situation. I do not think that Gunnar Strömmer would think that. I would not think that. I do not think that anyone in here would think that – especially not when it concerns serious organized crime, and not even in significantly milder cases. To testify against one's neighbor is not a pleasant experience. Nevertheless, it is necessary for the justice system to function that we, as citizens, are prepared to do it.
If the possibility of testifying anonymously is introduced for some, naturally everyone will want to do so. Even if the conditions are strictly set and it will involve few cases, most will think that the possibility exists and should also apply to oneself.
Mr. Speaker! Another aspect that is also very important is what happens in those cases where a witness has been guaranteed the opportunity to testify anonymously but still has their identity revealed. Confidentiality shall be guaranteed, says Gunnar Strömmer, and that is of course good. But what should be done in those cases where the witness's identity is still revealed? No one can reasonably guarantee that it will never happen? I would not believe that the Minister for Justice dares to guarantee it because the justice system consists of people – and people can make mistakes.
Mr. Speaker! I would like to have an answer. What happens in the cases where things go wrong? What will happen to persons who have been guaranteed anonymity but whose identities are revealed? How is the justice system to handle those types of situations?
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Rasmus Ling suggests that I have an elevated tone of voice. I would rather say that I have the same low-key and factual tone of voice that I usually have. On the other hand, I note that Rasmus Ling has elevated his normally very balanced tone of voice. For example, he demands empirical evidence from my side without being able to provide a single piece of empirical support other than his own speculations about what a system with anonymous witnesses—for which the investigation has already submitted its proposal—could have for harmful effects on the willingness to testify in the country. To be honest, it is not particularly impressive, and I also do not think it is on par with the high tone of voice that Rasmus Ling has regarding the risks he claims this system entails.
The investigation is now out for consultation in the usual manner. Thereby, we give various actors in the justice system and society at large an opportunity to submit their input on how this system might perhaps be calibrated and become even sharper than what the investigation proposes. The investigation being sent out contains both a solid review of how the issue has been treated in previous investigations and previous contexts in Sweden, and a solid review of experiences from other countries.
Against that background, the investigation emerges and submits a proposal for a Swedish model that largely rests on the models existing in our Nordic neighboring countries and other comparable democratic states of law. However, a number of wise adjustments are made so that the model fits Sweden, not least regarding the possibility of guaranteeing a fair trial where the accused or the accused's counsel has the same information as the court. That is the first thing I want to say. We therefore start from an established model in other countries and create a Swedish model that is even more legally secure and fairer. It is this that is now to be examined.
The second thing I want to say is that we can observe that the reality we are now to proceed from is not a reality where one hundred percent of the citizens in the vicinity of the criminal networks are standing in line to testify but now, in light of an investigation that came in October, suddenly say that they do not want to come. The reality we are to handle is that around the criminal networks there exists a monumental culture of silence that makes people not dare to speak with the police, not dare to speak with prosecutors, and not dare to appear in court. It is those patterns we must break. It is therefore not a matter of moving from a situation where the sun is shining to a situation where some rain showers and clouds appear in the form of proposals to introduce the possibility of testifying under the protection of anonymity in certain specific cases. I also want to emphasize that we have a duty to testify in the country, that is, an obligation to testify.
We will strengthen witness protection in various ways. It is part of the mission of our authorities to strengthen the protection for witnesses. We are prepared to invest in that protection. We are prepared to invest in the police's capabilities to protect witnesses in a very concrete and tangible way in particularly vulnerable situations, including witnesses who are not affected by this proposal. We are prepared to toughen the penalties for those who threaten or in other ways silence witnesses. It is clear that this is a whole. We need to dare to do everything to be able to break the patterns that, in addition to making it harder to solve serious crimes, undermine the citizens' trust in relation to the justice system in a way that is, in the long run, extraordinarily serious.
When it comes to the risks of anonymity being revealed, I want to emphasize that our courts, our prosecutors and our authorities handle extraordinarily sensitive information about individuals every day and have extraordinarily great experience in handling confidentiality issues. I have very great confidence in the justice system's ability to handle confidential information even in situations where people provide information under the protection of anonymity.
Rasmus Ling (MP)
Mr. Speaker! To begin with, I do not think it is an exaggerated tone. On the other hand, I think that this issue should be taken with the utmost seriousness and is of the utmost importance, and that there is therefore reason to get to the bottom of the different perspectives we have.
Mr. Speaker! I also have great confidence in the judiciary, with all the confidential information that is handled daily. Nevertheless, mistakes are sometimes made. It happens, and Gunnar Strömmer, I, and everyone else know that. No one can guarantee that the identity would never be revealed to someone who is to have anonymity. I do not believe that the Minister for Justice can guarantee that it will never happen. I would not dare to do that in any case.
Mr. Speaker! Another issue concerns the aspect of legal certainty. The possibility of testifying anonymously will result in a lack of legal certainty. The person who is indicted will have someone testifying against them without knowing who it is that is testifying. That is the very point. Nor will those who judge in court know if there is a conflict between the person testifying and the person involved, and if there are debts or injustices involved. This is a major problem, Mr. Speaker, if this system is to be used somewhat frequently. I do not think those aspects have been sufficiently highlighted either.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! I thank you for the opportunity to discuss this important issue this morning.
I want to emphasize that the questions regarding legal certainty in the process itself are of great importance. I myself have previously been very skeptical of anonymous witnesses precisely because, for example, the Norwegian model did not make me feel secure regarding the fairness and equality between different actors in the legal proceedings; the lawyer has access to information that they are prohibited from sharing with their client. I have not been able to see how it would be possible to create such an arrangement. It is not possible in Sweden, at least, where the lawyer, for very good reasons, shall have a single loyalty, namely towards their own client.
What I find elegant, if I may use that expression, in the model that the investigation proposes is that one has adapted this model and created a legally secure order for Swedish conditions by ensuring that neither the court nor the party knows the identity of the anonymous witness. There is thus a fairness in the information—what is on the table is what is on the table. There is no underlying or background information that the court has but that the party does not have access to. Thus, one of the most important issues of justice has also been addressed in a very good way.
Without anticipating the referral response, I can give a second example of how the investigation has conducted a solid analysis of the issue. According to the investigation's proposal, it is the court that shall subsequently assess the significance of the evidence. One cannot rule out at all that an anonymous witness statement in the concrete case will be assigned a lower evidentiary value than open evidence. But that in itself is not a legal certainty problem, but rather on the contrary a way for the court to handle evidence in a legally certain manner.
I am strongly convinced that Swedish courts, with their way of handling evidence, will be able to handle this as well in an extraordinarily good way for the benefit of both the individual's justice and the possibility of clearing up more serious crimes.
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.