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FALQs: Sweden’s Pre-Trial Detention Laws

Picture of Kronobergshäktet, Stockholm, Source: Kriminalvården, Press Pictures, used under a non-commercial license. (https://www.kriminalvarden.se/imagevault/publishedmedia/8g2pwpyro9qdo0lx7rvs/2013_141.jpg) Press Picture policy at https://www.kriminalvarden.se/om-kriminalvarden/press/pressbilder/#page=2&q=&c=[2]&s= (non-commercial)).

The Swedish detention system has been in the news over the last few weeks, including calls to change its detention system. Swedish media has also reported that the Swedish government is considering amendments to its pre-trial detention rules. So, what are the current rules?

1. Who can be detained?

Pre-trial detention is regulated in chapter 24 of the Criminal and Civil Procedural Code (Rättegångsbalken (RB) SFS 1942:740) and by the Detention Act (Häkteslag (SFS 2010:611)).

Pre-trial detention is decided by the court (one judge and three lay judges) (24 kap. 5 § RB; 1 kap. 3b § RB).

The Criminal and Civil Procedural Code provides the following:

1 §   [A person] who is, on reasonable grounds, suspect of a crime, for which a prison sentence of one year or more is prescribed, may be detained, if, considering the nature of the crime, and the suspect’s situation, or other circumstances, there is a risk that [the suspect]:

  1. will abscond or in any other way evade legal proceedings or sentencing,
  2.  will remove evidence or in another way hamper the investigation, or
  3. continues to engage in criminal activity.

If the crime carries a minimum sentence of two years imprisonment, pre-trial detention must take place, unless it is obvious that reasons for detention are missing.

Pre-trial detention may only be used if the reasons for the measure outweigh the invasion or other injury that the measure causes the suspect or any other competing interest.

If it can be assumed that the suspect will only be sentenced to a fine, detention may not take place.

2 §   A person who is, on probable cause, suspected of a crime may be detained, irrespective of the nature of the crime,

1. if he is unknown and refuses to provide a name and residence, or if the information provided can be presumed to be untrue, or

2. If he lacks a residence within [Sweden] and there is a risk that [the suspect] by leaving the country, will evade legal proceedings or sentencing. (All translations by author.)

Thus, a person who is a foreigner and lacks a permanent abode in Sweden is a presumed flight risk and can always be detained regardless of the crime.

2. Can minors be detained pending prosecution, trial, and sentencing?

Persons who have reached the age of criminal responsibility (Swedish: straffmyndig), being at least 15 years old, but who are not yet 18 may also be detained. However, in order for minors to be detained there must be extraordinary reasons (synnerliga skäl) to do so (24 kap. 4 § RB, 23 § Lag med särskilda bestämmelser om unga lagöverträdare [Act with Special Provisions on Young  Offenders](SFS 1964:167).) Extraordinary reasons are determined by weighing the age of the suspect against the seriousness of the crime (Swedish Supreme Court, NJA 2015 s 649.)  For example, a 16 year old who is suspected of murder may be detained but not a 15 year old suspected of aggravated robbery (NJA 2015 s 649 and RH 2004:61.) In 2018, a total of 150 minors were detained in Sweden.

3. What is the maximum time someone can be detained?

Swedish law does not place a time limit on pre-trial detention. However, if the prosecutor has not brought charges within 14 days a new pre-trial detention hearing must take place. (24 kap. 18 § 3 st RB.)

Sweden’s pre-trial detention rules have been criticized by both the United Nations Committee Against Torture and the Council of Europe (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)). In a report from 2016, the CPT noted that the “widespread use” of restrictions connected to pre-trial detention in Sweden results in “an almost total absence of organised activities, with most remand prisoners spending up to 23 hours per day alone in their cell, with hardly anything to occupy themselves.” (¶¶ 50-53.) The CPT has called upon EU member states generally to order less-invasive measures than detention, such as confiscating the passport if the suspect is a foreign national.

In Sweden, in 2018, 53% of all persons who were released or transferred from detention to prison had spent more than a month in pre-trial detention, one-third had spent more than two months, and 15% spent more than four months in pre-trial detention. Also in 2018, 65% of all people detained had at least one restriction placed upon them at the time of their initial detention, after one month that number was reduced to 61%. In total, close to 2,000 persons were subject to pre-trial detention in 2018.

The most common restrictions that detained persons face are restrictions on receiving visitors, using electronic communication, receiving packages, and spending time together with other detainees. This has led organizations to criticize Swedish detention as de facto isolation.

Time spent in detention will usually count towards a prison sentence, and may also count against a monetary fine, such as day-fines (dagsböter). Upon the completion of the trial, the court decides whether to release or continue to detain a defendant while it awaits the judgment of the court (24 kap. 21 § RB).

4. Can one post bail instead of being detained?

There is no possibility of posting bail for anyone in Sweden, regardless of whether you are a citizen or not.

In fact, the use of bail is uncommon among European Union member states, but there has previously been discussions about creating a European-wide bail system.

5. Are there alternatives to pre-trial detention?

Even when the conditions for pre-trial detention are met, a travel ban or reporting duty may be used as an alternative to detention (25 kap. 1 § RB). The two measures may also be combined (25 kap. 2 § RB). If a travel ban is ordered, the court may order the suspect to be available at his or her home or workplace during certain hours.

6. When does Swedish pre-trial detention cease to be proportional?

Although there is no time limit on how long a person may be detained, the detention of a person must be proportional and a lengthy detention period speaks against the detention being proportional (24 kap. 1 § 3 st RB). Thus, the Supreme Court has held that the detention must be reasonably proportional in relation to what may be gained from it (NJA 2015 s. 261) and the injury to the defendant.

For instance, in 2015, the Supreme Court, when it approved, the continued in absentia pre-trial detention of Julian Assange, explained that although it approved the continued detention, the prosecutor now had a duty to move the case forward.

In 2019, when the district court again reviewed whether a detention order in absentia of Assange was proportional, it found that it was not, arguing that because Assange could be heard without detaining him (even though he was still a flight risk) it was not proportional detain him, as the goal of the detention could be obtained with less invasive measures.

7. What if you are wrongfully detained?

If the court does not convict the accused of the alleged crime, or if a person is detained and the prosecutor does not file charges, the individual has a right to be compensated for financial losses incurred because of the detention. (2 § Lag om ersättning vid frihetsberövanden och andra tvångsåtgärder [Act on Compensation for and Deprivation of Liberty other Coercive Measures])(SFS 1998:714).) The law does not set a cap on the level of compensation.

8. Can government ministers or public officials intervene in court cases?

Government ministers are legally prohibited from intervening in court cases and in agency decisions. Such intervention is called ministerstryre. The Prime Minister and the Swedish King also do not have the legal right to, alone, pardon crimes. However, the government (Regeringen) may collectively decide (by simple majority at a government meeting) to pardon a crime (nåd) that has been adjudicated (12 kap. 9 § RF). This means that the government may relieve a person from serving a prison sentence or shorten the sentence in certain cases. The government cannot set aside any damages owed to a victim.

In addition, the government, when there are extraordinary reasons, may decide that a criminal act should not be further investigated or prosecuted (referred to as abolition under Swedish law). For example, the government decided that the terrorist attack on the West German Embassy in Sweden in 1975 should not be prosecuted.

By law, the government must consult the Swedish Supreme Court or the Swedish Administrative Supreme Court, if there are special reasons to do so. (Lag om handläggningen av nådeärenden (SFS 1974:579).) Medical reasons are the most common reason for granting clemency.

9. Are there any legal developments with regards to pre-trial detention in Sweden?

In 2016, the Swedish government published a government report (SOU 2016:52) on the topic of reducing the number of persons in pre-trial detention and a reduction in the use of isolation. Among other things, the report suggested adopting a cap on the time spent in pre-trial detention, being six months for adults and three months for minors. Those suggestions have yet to be proposed in a bill. On July 23, 2019, Swedish media reported that the Swedish government is looking to propose changes to the pre-trial detention rules, especially as they concern minors.

Sweden must also adopt the EU Directive 2016/800 on the on procedural safeguards for children who are suspects or accused persons in criminal proceeding, which includes rules on pre-trial detention of minors, and is in the first stages of doing so (SOU 2017:68).

10. Where can I find additional information in English?

Online

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