Response to interpellation 2025/26:571 on legal certainty within the justice system
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
M considers the independence of the judiciary to be central to the rule of law and that courts and authorities must follow rules regarding objectivity, impartiality, and conflict of interest 1. M argues that the right to a fair trial applies to everyone regardless of profession and that it is natural for judges to be lawyers 2 3. M emphasizes that the Parliamentary Ombudsman exercises supervision to satisfy the people's right to insight 2. M considers that the Swedish democratic rule of law stands strong 4. M considers that there are good reasons to strengthen the right to judicial review and wants people to receive a legally secure review in court in cases concerning the individual 4.
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)
Madam Speaker! Elsa Widding has asked me if I have made any analysis of whether it is legally secure and compatible with the principle of objectivity in the constitution and the Administrative Procedure Act, and the grounds for disqualification specified therein, to let only lawyers, without the insight and participation of non-lawyers, judge and exercise supervision in cases and matters concerning lawyers in the general courts, the Special Prosecution Office, the Swedish Bar Association, and the Chancellor of Justice.
The independence of the judiciary is completely central to our democratic constitutional state. In a constitutional state, it is fundamental that every citizen can have their case examined in a fair trial by independent and impartial courts. It follows from the constitution that authorities and courts, in their activities, shall both observe everyone's equality before the law as well as observe objectivity and impartiality. Authorities and courts shall also follow rules on conflict of interest. If someone does not follow these requirements, it can ultimately ground a liability for misconduct in office. As I stated in my response to a similar question from Elsa Widding in February this year, the requirements for objectivity and impartiality as well as the conflict of interest rules naturally also apply in cases and matters where lawyers examine issues concerning other lawyers.
It follows from the constitution that there shall be regular judges in our courts. In certain cases, such as family law disputes and criminal cases, the court consists of both professional judges and lay judges. In some other cases, including in administrative courts, special members or economic experts may also participate.
In criminal cases, it is the prosecutor who acts on behalf of the state, and it is the prosecutor who decides whether charges shall be filed. Prosecutors are independent in their decision-making. No one can control how an individual prosecutor shall decide in an individual case. Suspicions of crime directed against police officers, prosecutors, judges, Members of Parliament, and other special office holders are handled by the Special Prosecutors Office. It is a requirement for legal certainty that that activity is conducted uniformly and separately from ordinary police and prosecutorial activity.
The supervision of lawyers is exercised by the Swedish Bar Association. The Bar Association's independent supervisory role expresses the independent position that lawyers have and should have in a democratic society. Individual cases can be appealed to court. In parallel, the Chancellor of Justice is tasked with exercising supervision over the Bar Association's disciplinary activities. Through this system, the independence of lawyers is protected while the society's need for transparency and scrutiny is met.
Finally, the Parliament's ombudsmen, namely the Parliamentary Ombudsman, have the task of exercising supervision over public activities and auditing, among other things, authorities and courts.
The Swedish democratic rule of law stands strong – something that is also confirmed in a number of international surveys. At the same time, it is welcome that these important issues of legal certainty are discussed in the public debate.
Elsa Widding (-)
Madam Speaker! I hope that this question will be a little easier for both Madam Speaker and the Minister to understand the connection to.
To create the best possible legal certainty within the justice system, it is obviously most fundamental that there are legal procedures that provide optimal conditions to prevent the risk of bias, conflict of interest, and corruption. But the Minister's answer shows that the justice system in Sweden rests on naive hopes.
In a constitutional state, it is important that everything and a little more is done to prevent all forms of legal uncertainty within the justice system. That is certainly something we completely agree on. Legal uncertainty can lead to serious damage both for the person affected and for the general trust in the justice system, whose representatives must never be allowed to stand above the laws that apply to other citizens and companies or be allowed to act in a way that is not compatible with the general perception of justice in society.
The rules on impartiality, which belong to some of the most central rules in the Administrative Procedure Act, have been added to guarantee objective and impartial conduct on the part of the administrative authorities.
In the Instrument of Government, Chapter 1, Section 9, the same principle of objectivity exists, which is expressed as follows: "Courts, administrative authorities and others performing public administrative tasks shall in their activities observe everyone's equality before the law and observe objectivity and impartiality." This is therefore about everyone's equality before the law. Unfortunately, it is completely impossible to achieve as long as only lawyers are allowed to review and judge their colleagues, that is to say, other lawyers.
Based on the principle of objectivity in the Constitution and the Administrative Procedure Act, and the grounds for disqualification specified therein, it can obviously not be considered an impartial and legally secure procedure to let only lawyers, without insight and participation from lay members or other non-lawyers, review and judge professional colleagues. Why? Yes, for the simple reason that the judges may have personal and professional relationships or common professional interests, or that other circumstances may prevail that make it inappropriate for a lawyer to judge another lawyer.
It is not possible to say, when the minister, in general terms, briefly refers to the fact that authorities and courts must, based on the constitution, the Administrative Procedure Act, and the Code of Judicial Procedure, observe everyone's equality before the law, objectivity and impartiality, and follow the rules that exist regarding conflict of interest.
Madam Speaker! The relevant question that must be looked at instead is whether in certain legal proceedings there is an inherent and obvious risk of bias, partiality, and corruption that makes that proceeding unsuitable and incompatible with what the constitution, the Administrative Procedure Act, and the Code of Judicial Procedure stipulate and express, and therefore should not be permitted. The procedure of letting only lawyers judge, without the participation and oversight of lay judges or other non-lawyers, is precisely such an obviously insecure legal procedure that should not be permitted within the Swedish justice system.
The Minister refers to the fact that there are oversight bodies that exercise supervision over the justice system. That sounds reassuring. But even in these cases, it is lawyers who are checking how professional colleagues have acted. There is therefore an obvious risk of bias.
In some cases, authorities exercising supervision also say that they lack resources for more extensive control. There is therefore a deficiency there as well. Even if there had been a more impartial and legally secure supervision, it would still not change the need to create legal systems and procedures that, to the greatest extent possible, already counteract bias, conflict of interest, and corruption with incorrect judgments as a result. This is especially important here when the affected party, the counterparty to these lawyers, cannot have their case reviewed by anyone other than lawyers. Many also cannot afford to have the case reviewed in a higher instance.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! A fundamental prerequisite for individual protection of rights is the right to judicial review. It is a constitutionally protected freedom and right. It applies regardless of whether one is a member of Parliament, a farmer, or a lawyer.
One has the right to have one's case examined in court, and in courts, judges pass judgment. In some cases, there are elements of lay judges, and it makes no difference whether the person who is the subject of the court review is a lawyer or not. The impartiality rules naturally also apply in these cases. If there is a personal relationship, one must not participate in judging such a case, regardless of whether the person who is the subject of a legal process works as a lawyer or has a personal relationship of some other kind. I mean that the regulatory framework we have naturally also applies when a lawyer is the subject of a legal review.
Overall, I conclude that what we can do to create legal certainty is to ensure that we have independent courts that are not subject to political pressure and that follow the legislation. If one does not do that, one should be subject to supervision. The Riksdag has also decided that the Parliamentary Ombudsman shall have that task because it was not appropriate for the Chancellor of Justice, i.e., an agency directly under the government, to exercise that supervision.
The Parliamentary Ombudsman is the people's ombudsman. It is the Swedish people's ombudsman. It is the Riksdag's ombudsman. In this way, we can satisfy the Swedish people's right to insight into the courts' activities. I also want to emphasize that this supervisory mandate is naturally much broader than just looking at processes where other lawyers are also subjects of legal reviews.
I feel very secure that the Swedish democratic rule of law functions well. To the extent that irregularities or abuses are uncovered, there are processes in place to handle them.
Regarding the very last question about the individual's ability to afford legal proceedings, which lies outside the main issue, I do, however, agree that there is much more to be done. Therefore, I am very pleased that during this parliamentary term we have had an investigation underway that has looked at the economic conditions for individuals to, for example, have counsel in the Court of Appeal or otherwise have access to the justice that the courts offer.
Elsa Widding (-)
Madam Speaker! I have great respect for the fact that I have a lawyer before me. Let me, however, go through the four parts of the justice system that this concerns, and correct me if I am wrong.
For example, in civil cases in general courts where one party consists of lawyers, only lawyers are allowed and no lay judges or other non-lawyers are permitted to participate and judge in the cases. Is that correct or not? For those who have the opportunity and the means, the courts', that is, the lawyers', judgments can be appealed up to the Supreme Court. But even there, only lawyers judge, and they can, without substantive justification, dismiss an application for review. Thus, the judgment becomes finally legally binding.
The Minister refers to the fact that JO has the task of exercising supervision over authorities and courts. But JO cannot change a judgment or a decision and is therefore not an instance that a prejudiced party can turn to in order to have a judgment reviewed. In order to create transparency and legal certainty in these cases, lay judges or other non-lawyers also need to participate and adjudicate in them.
For those who believe that judges or lawyers have committed crimes in the line of duty in general courts, these judges can be reported to the Special Prosecution Office, headed by the Director of Public Prosecutions. But in practice, an individual lawyer at the authority is allowed to decide whether a case should be dismissed or a preliminary investigation should be initiated. Is this what the minister calls legally secure?
The procedure is clearly insecure regarding the rule of law. Even here, it is only lawyers who are permitted to review and judge reported judges or lawyers.
The government then refers to the fact that lawyers are under the supervision of the Bar Association. That is precisely the problem, because their self-regulation in disciplinary cases cannot be perceived in any other way than biased and insecure in terms of legal certainty. It can, in any case, do so.
The Minister also refers to the fact that lawyers are under the supervision of the Chancellor of Justice, but even here, there are major deficiencies in the rule of law.
The Swedish Bar Association is an interest organization for the country's lawyers and has the task of promoting and protecting their interests. Despite this, the lawyers in the Bar Association are permitted to exercise self-regulation regarding reported colleagues' violations of legal ethics and good professional conduct.
These crimes can be of a type that the Bar Association wishes to protect. The former chairman of the Swedish Bar Association was reported, for example, for having committed serious crimes against legal ethics and good professional conduct. The evidence was considered irrefutable, but the Bar Association chose to ignore this evidence. They refused to even comment on them and chose instead to acquit their former chairman.
To ensure legal certainty in disciplinary cases, a new order needs to be created so that the cases are decided by a majority that is not composed of lawyers. The majority should be entirely or substantially composed of non-lawyers. The handling of these cases may possibly continue to take place within the framework of the Swedish Bar Association's activities, but they must be transferred to another authority in the same way as has already been done in Norway and other European countries. Lawyers are in the minority when decisions are to be made.
Then we have the Chancellor of Justice, who, among other things, has the task of exercising supervision of the Bar Association's decisions in disciplinary cases. At the JK, only lawyers are permitted to review the Bar Association's decisions in disciplinary cases. If they find them incorrect, the HD may review them. This happens extremely rarely and only if the decisions have been so obviously incorrect that the media have noticed them and thereby prompted the JK to act.
JK also says himself that the authority's resources are so limited that it is not possible to carry out any more extensive supervision and must limit it to include those cases that can be of principal importance.
To create a more impartial and legally secure supervision of the Bar Association's decisions in disciplinary cases, non-lawyers should, of course, also participate in JK's supervision. More resources must be allocated so that JK's supervision becomes sufficiently comprehensive.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! Prosecutors are lawyers. Judges are lawyers. It is no stranger than that. The Bar Association does not try criminal cases; the Swedish courts do.
I think the short sentence of the long speech is that the core of a democratic constitutional state is that one has the right to a fair trial. One has that in courts. There, by natural reasons, there are judges who are judges. That right one has regardless of whether one is a lawyer or whether one is an agronomist, a civil engineer, or something else.
Elsa Widding (-)
Madam Speaker! The Minister therefore considers it to be legally secure to let only lawyers, without the insight and participation of lay judges or other non-lawyers, adjudicate in civil cases where one party consists of lawyers in general courts. Should it not be obvious that non-lawyers should also participate in these cases to reduce the risk of conflict of interest, bias, and incorrect judgments?
The Minister believes it is legally sound to let only lawyers in the Special Prosecutor's Office, without the oversight and participation of non-lawyers, review and judge judges, that is, lawyers, who are reported for having committed crimes in the performance of their duties in general courts. Should it not also be completely obvious here that non-lawyers also participate in order to reduce the risk of conflict of interest, bias, and incorrect decisions?
The Minister also considers it appropriate and legally sound to let the Swedish Bar Association conduct self-regulation in disciplinary cases. We are talking here about an interest organization for the country's lawyers that has the task of safeguarding and promoting its own interests. Cases are decided there, just as the Minister said, by a massive majority of lawyers, that is to say, professional colleagues of the reported lawyers.
Why not create a new order where lawyers are in the minority when these matters are decided? This has already occurred in, among other places, Norway. How in the name of all that is holy can the government consider it to be legally secure to let only lawyers, without the insight and participation of non-lawyers, perform the supervision of the Bar Association's decisions in disciplinary matters in the way that the Chancellor of Justice does today? Why is a new order not created where non-lawyers also participate in this supervision?
Justitieministern Gunnar Strömmer (M)
Madam Speaker! Thank you for the opportunity to discuss important issues of legal certainty today!
The Swedish democratic rule of law stands strong. There are good reasons to strengthen, for example, the right to judicial review. It is therefore why we have initiated such an investigation.
The big problem today in Sweden regarding the right to judicial review is that very many decisions that should be subject to judicial review do not become so. What people fight for is the right to come to a court and not have their cases decided by, for all intents and purposes, non-lawyers around the country, but actually receive a legally secure review in court in matters that truly affect the individual.
I am very pleased that we are moving the positions forward. It is a real rule of law issue, unlike a good deal of what Elsa Widding has highlighted in this debate.
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.