1. Lag (1994:1219) om den europeiska konventionen ang˚ende skydd för de ma˘nskliga rättigheterna och de grundla˘ggande frihetema (Act on the European Convention on Human Rights). The law (and the accompanying amendment to the Instrument of Government, Regeringsformen, hereafter RF) entered into force on 1 Jan. 1995. The law has been amended recently, with the incorporation of Protocol 11 (1998: 712). Possible conflictsare between the law which incorporates the Convention and another Swedish norm, not between the Convention as such and a Swedish norm. For the sake of simplicity, however, I will refer simply to the “Convention”.

2. I will not attempt to look at the British bill as such. See the special issue of the E.H.L.R. 1997Google Scholar, devoted to the incorporation issue. See further Gearty, C, “Human Rights in Practice: Some Preliminary Reflections on the Government's Human Rights Bill”, in Anderson, G., Rights and Democracy in Canada and the UK (1998).Google Scholar

3. Supreme Administrative Court cases regarded as more important are found in thereference (ref.) section, others in the note section.

4. In addition to these, there were a number of cases dealing with the lack of an oral hearing.

5. E.g. extradition/deportation cases concerning refusal to deport because of a family connection, N.J.A. 1996, s.365Google Scholar and N.J.A. 1997, s.172.Google Scholar

6. I make a complete survey in “Swedish Case Law on the ECHR Since Incorporation, and the Question of Remedies”, in Cameron, I. and Simoni, A. (Eds), Dealing with Integration, VoL.2 (1998).Google Scholar

7. See Cameron, I., “Sweden”, in Gearty, C. (Ed), European Civil Rights and Civil Liberties (1997).Google Scholar

8. See Cameron, I., “The Protection of Constitutional Rights in Sweden” (1997) P.L. 488.Google Scholar

9. Section 1 of the Human Rights Act 1988 (“the Act”) refers to Arts.2–18 and Arts.1–3 of Protocol 1 and Art.1 and 2 of Protocol 6. Unlike the UK, Sweden has ratified all the protocols to the Convention providing for additional substantive rights.

10. SOU 1993:40, p.126.Google Scholar

11. This is too large an issue to deal with in the present essay. See Cameron, op. cit. supran n.6.

12. See further Cameron, , op. cit supra n.8, at pp.502–512.Google Scholar

13. I make the usual reservations for EC law, post-Factorlame and, as a Scots lawyer, for the Treaty of Union.

14. On constitutional review see e.g. McWhinney, E., Supreme Courts and Judicial Lawmaking (1985)Google Scholar, Landfried, C. (Ed.), Constitutional Review and Legislation: An International Comparison (1988)Google Scholar, Brewer-Carías, A. R., Judicial Review in Comparative Law (1989)Google Scholar and Beatty, D. M. (Ed.), Human Rights and Judicial Review (1994).Google Scholar My way of categorising constitutional review follows that of Brewer-Carías, idem, pp.91–92

15. Prop. 1993/94 117, s.37. See also Ds 1997:25, s.49, produced as a result of the Holm case (infra n.35) where it is stated that ECtHR cases are a source of law to be applied by the Swedish courts.

16. See infra Section VIII.B.

17. Prop. 1993/94:117, s.37.

18. See e.g. Strömberg, H., “Hädiska tanker om religionsfrihet”, in Rättsfonden, Om vàra rättigheter (1980).Google Scholar

19. I would, however, argue that wearing a turban is a form of religious freedom ofexpression, and so protected by RF 2:1 p. 1. Certainly if wearing a swastika badge or armband is a means of expression (N.J.A. 1996, s.577), then so too is wearing a turban.Google Scholar

20. I will not repeat the criticism I have made elsewhere of the narrow approach taken in the travaux préparatoires to the RF and in some case law. See Cameron, , op. cit supra n.8, at pp.504–505.Google Scholar

21. Prop. 1996/97:22.Google Scholar

22. Funke v. France, 25 Feb. 1993, A/256–A, SOU 1996:116.Google Scholar

23. I will not go into the Ombudsman's handling of Convention issues since incorporation. For two recent examples of the Ombudsman examining the requirements of Art.8 in connection with telephone monitoring see J.O. 1995/96:29 and 97/98:115.Google Scholar

24. See e.g. Finska församlingen in Stockholm and Teuro Hautaniemi v. Sweden, app.no.24019/94, 85 DR 94 (1996).Google Scholar

25. This is a simplification. I will not go into the relationship between the concepts of material breach and State responsibility.

26. I will not go into the debate concerning the desirability of giving provisions of the Regcringsformen (RF) indirect Drittwurkung. There are, interestingly, explicit rights for individuals exertisable vis-à-vis other individuals set out in the TF and YGL.

27. It should be pointed out here that under s.36 of the Contracts Act there is a general power for the courts to set aside, or vary, an unreasonable contract term in a concrete case. The plaintiff must, however, invoke this provision. As the employees had already been dismissed it was not an issue in the present case.

28. 25 Apr. 1996.

29. McCann and others v. UK, 27 Sept 1995, A/324. For the Swedish reaction see Svenska dagbladet, 23 Feb. 1998.Google Scholar

30. The opinion of the dissenting minority in the Leander case (8 July 1987, A/116)Google Scholar concerning the inadequacies of safeguards on vetting checks by the security police was one of the factors behind the reform of the law made, eventually, in 1996. Cruz Varas (20 Mar. 1991, A/201)Google Scholar ted to an amendment of the Aliens Act (Chapter 8, s.10a) allowing the government toissue a stay of execution in deportation cases where the Commission had requested this.

31. See/ pudas, 27 Oct. 1987, A/125–AGoogle Scholar, Boden, 27 Oct. 1987, A/125–BGoogle Scholar, Tre Traktoˇrer AB, 7 July 1989, A/159Google Scholar, Allan Jacobsson, 25 Oct. 1989, A/163Google Scholar, Mats Jacobsson, 28 June 1990, A/180AGoogle Scholar, Skārby, 28 June 1990, A/180BGoogle Scholar, Zander, 25 Nov. 1993, Aä279–B.Google Scholar

32. Duemeland v. Germany, 29 May 1986, A/100Google Scholar, Feldbrugge ν. Netherlands, 29 May 1986, A/99.Google Scholar See further the dispute between the Supreme Court and the Supreme Administrative Court noted infra n.89.

33. It is not by any means clear that all these tribunals would satisfy the requirements of Art.6. Certainly, not all of them are regarded as “courts” in Swedish constitutional law.

34. Respectively, 26 Oct. 1984, A/83, 26 May 1988, A/160 and 1988 22 June 1989, A/155.Google Scholar For more detail on the legislative changes occasioned by these and other cases see Cameron, op. cit supra. n.7.

35. 25 Nov. 1993, A/279–A.

36. Prop. 97/98:43, ss. 129–135.

37. R.Å, 1997 ref. 6.Google Scholar

38. 23 Oct 1990, A/187 (1991).Google Scholar

39. This was not the case for the law enacting the new Instrument of Government in 1974 (1974: 152), which contained provision for the continued validity of several laws and types of law which would otherwise have been invalid. Cf. R.Å. 1996 ref. 57Google Scholar (not involving the Convention) where the absence of a transitional provision meant that the court felt unable togrant retroactive effect to legislation and so it once again ruled in the individual's favour and against the State.

40. The issue of giving retroactive effect to Convention judgments was considered by the ECtHR in Marckx v. Belgium, 13 June 1979, A/31.Google Scholar The Court considered in this case that legal certainty ruled out giving retroactive effect to judgements in civil cases. On the other hand, the requirements of legal certainty are not necessarily so strong in administrative cases at least where giving retroactive effect means the state losing.

41. As far as I am aware, there has only been one recent example of an acknowledged norm conflict between norms of the same constitutional status, concerning the deportationof a family and a consequent dispute as to whether to apply the Aliens Act (and deport thewhole family) or the Care of Children Act (and deport only the mother). The Ombudsman considered that the former Act should be applied. SOU 1995: 115, s.99. Thanks to Elisabeth Rynning for helpful comments on this case. For a short discussion of the lex specialis principle see Peczenik and Bergholz, op. cit infra n.43.

42. See e.g. Enzelin v. France, 26 Apr. 1991, A/202, para 37.Google Scholar

43. For treatments of statutory interpretation in general in the UK and Sweden see the chapters in McCormick, D. N. and Summers, R. S. (Eds), Interpreting Statutes, a ComparativeStudy (1994) by, respectively, Bankowski, Z. and McCormick, N., and Peczenik, A and Bergholz, G..Google Scholar

44. In A.D. 1998 nr. 17, the defendant argued that legislation requiring participation of the trade unions in company decision-making was lex specialis.

45. Express rules giving a statute precedence over another in case of conflict are very rarein Swedish law. For an example see s.1 of the Privileges and Immunities Act (1976:661) as amended, regarding the Vienna Convention on Diplomatic Immunity.

46. This point can easily be misunderstood. See e.g. Bemitz, U., “Europakonventionens införlivande med svensk rātt—en halvmesyr” (“Incorporation of the European Convention—A Half-Measure”) (1994–1995) 6 Juridisk tidskrift (J.T.) 259, 266Google Scholar, where it is stated that the Convention, by virtue of its status as a statute, has precedence over ordinances.22.

47. The constitutional protection from judicial review extended to government ordinances cannot be justified by reference to the primacy of the democratic will. I consider it to be an anachronism. The problems sketched out above provide another reason forabolishing it.

48. This, in any event, is the conclusion of one prominent legal writer. Strömberg, H., “Europakonventionens genomslag i svensk rātt” (“The impact of the European Conventionin Swedish Law”) (1996) 59 F.T. 19, 22–23.Google Scholar

49. To argue so builds upon a mistaken analogy with the position of EC law in Swedish law. The area of application of RF 11:14 was diminished by membership of the EU. The provision does not apply to conflicts between EC law with direct effect and national law. Legislative competence in the area covered by the EC has been transferred (competence to do so is set out in RF 10–5). Strictly speaking then, there is no norm conflict any more. (See. e.g. R.Å. 1997 ref. 65, infra n.91.)Google Scholar This is not the case here. There has been no transfer of legislative competence to the ECtHR. Here the conflict is between two national norms, the incorporated Convention and another national norm. In the circumstances, the applicationof RF 11:14 to such a conflict could not have been excluded by a mere statement in the travaux préparatoires.

50. I provide a diagram for how I would go about resolving conflicts in Cameron, , op. cit supra n.7, at p.239.Google Scholar

51. I agree with van Gerven that the term “construction” is better than “interpretation” as it emphasises the active role which must be played by the judge: van Gerven, W., “The Horizontal Effect of Directive Provisions Revisited: The Reality of Catchwords”, in Curtin, D. and Heukels, T. (Eds), Institutional Dynamics of European Integration. Essays in Honour of Henry G. Schermers, Vol.2 (1994), p.345.Google Scholar

52. See e.g. Nergelius, J., “Om grundlagstolkning, grundlagsvānlig tolkning och åsidos¯ttande av grundlagsstridig lag” (“On Constitutional Interpretation and Constitutional Review”) (1996) Sv J.T. 835Google Scholar and “Domstolar, grundlagen och rättighelsskyddet” (“The Courts, the Constitution and the Protection of Human Rights”) (1997) Sv.J.T. 426Google Scholar and references therein. Swedish membership of the EU is the main reason for this resurgence of interest, although the Convention has also contributed to it. I will not attempt to deal with this general doctrinal debate in this short article.

53. The majority of international lawyers are naturally interested in anything whichadvances the cause of international law. Arguably, this is not so much due to a misplacedsense of the importance of our subject but, rather, a quiet desperation! The horizontal andpartial nature of the international enforcement system means that one is at the mercy of national courts when it comes to implementing much international law. Precedents fromother jurisdictions are occasionally cited to show how it should be done, but the fact is thatmost national courts show deference to their respective governments and Parliaments ininterpreting and applying international law. As Benvenisti notes, this deference can beidentified at three distinct stages in the application of norms, by interpreting narrowly theprovisions of national constitutions which import international law into the national legalsystems, by interpreting international rules so as not to upset their government's interestsand by using a variety of methods and principles so as to avoid ruling on the legality ofgovernment actions under international law: Benvenisti, E., “Judicial Misgivings Regarding the Application of International Law” (1993) 4 E J.I.L. 159, 161.Google Scholar For a detailed discussion ofthe different judicial approaches to control of executive foreign policy in the US see Koh, H., The National Security Constitution (1990).Google Scholar

54. The awkward problem of domestic legal effect to be given to Commission reports (which, unlike Court judgments are not formally binding upon the State) has not disappeared with the creation of the new Court. Under Article 46(1) only final judgments ofthe Court (not decisions) are binding.

55. See R.Å. 1997 ref. 97 (concerning tax investigations and Art.6).Google Scholar

56. See R.Å. 1996, ref. 8Google Scholar and R.Å. 1997 ref. 68 (concerning Art.5 and challenge to detention).Google Scholar

57. van Dijk, P. and Hoof, G. J. H. van, Theory and Practice of the ECHR (2nd edn, 1990) and the introductory textbook by Danelius, H., Mānskliga rättighctcr i europeisk praxis(1997).Google Scholar It can be noted here that the Swedish courts are not averse to citing doctrine.Opinions differ on the significance of such citations, i.e. whether they tend to indicate genuine influence on the court's legal reasoning or whether they instead serve as background information or simply as additional support for a conclusion which the court planned to reach anyway.

58. See infra text accompanying nn.80, 81 regarding “accidental anticipation”.

59. The national courts are likely to be, and should be, unwilling to look at treaties whichtheir State has not ratified, except in the special case where these can be seen as evidence of customary international law.

60. Similar reasons are invoked for not incorporating, rather than transforming, treaties containing vague provisions. See e.g. a recent report on the legal position of the Conventionon the Rights of the Child (SOU 1997:116). Cf. the position taken by a Norwegian committee investigating the incorporation of human rights treaties (NOU 1993:18).

61. These two different types of situation can be compared to the situations where a national court is faced, respectively, with an incorrectly transposed EC directive and a totally untransposed directive. For an example of the difficulties this can cause a national court see Webb v. EMO Air Cargo (UK) Ltd [1992] 4 All E.R. 929.Google Scholar

62. This is recognised implicitly by the travaux préparatoires to RF 11:14. See infra Part IX. It is also evident in a number of cases in which the RF is mentioned, if at all, as an afterthought.

63. See generally Cameron, , op. cit supra n.8, at pp.503–508.Google Scholar

64. Having said this, the fact that the Convention regime is a case law system is not the same thing as saying that the legal culture(s) underlying it are the same as those applying incommon law countries, in particular as regards the extent of legitimate judicial norm creation. It, like EC law, is heavily influenced by Continental legal thinking.

65. See e.g. M. v. Home Office [1994] 1 A.C. 377, 422 (per Lord, Woolf)Google Scholar “it would be most regrettable if an approach which is inconsistent with that which exists in community law should be allowed to persist if this is strictly necessary”. I think “spillover” is a better term than “infection” (smittoeffekt) which has occasionally been used in Swedish doctrine. Calling EC/ECHR influence “infection” is pejorative—it presupposes that the Swedish legal system is a healthy body which is contaminated by foreign bodies. As to the effect of EU membership on judicial attitudes towards constitutional review, see text following infra n.100.

66. For a valuable discussion of this point from the perspective of EC law, see Andersson, T., “Effective Protection of Community Rights in Sweden”, in Cameron, I. and Simoni, A. (Eds), Dealing with Integration (Vol. 1, 1996).Google Scholar

67. Case 14/83, von Coulson and Kamann v. Land Nordrhein-Westfalen [1984] E.C.R. 1891, at para.26.Google Scholar

68. See e.g. N.J.A. 1997, s.415Google Scholar, N.J.A. 1997, s.299Google Scholar, although cf. R.H. 1996:37Google Scholar and N.J.A. 1996, s.668.Google Scholar In the latter case, the Supreme Court interpreted an Art. 177 ruling extremely restrictively, some might say contrary to its spirit.

69. Case C–106/89, Marleasing SA v. La Commercial International de Alimentation SA [1990] E.C.R. 1–4135, at para.8.Google Scholar

70. See Case C–91/92, Facine Dori v. Recreb Srl [1994] E.C.R. 1–3325, at para.25.Google Scholar For the viewpoint of the British courts see e.g. Duke v. GEC Reliance [1988] 2 W.L.R. 359.Google Scholar

71. Van Gerven, op. cit. supra n.51.

72. See Cameron, op. cit. supra, n.6.

73. See e.g. R.Å. 1996, ref. 52 (concerning the Hague Convention on Abduction of Children, 1980)Google Scholar

74. See in particular N.J.A. 1974, s.423.Google Scholar For discussion see Cameron, , op. cit. supra n.7, at pp.227–229.Google Scholar

75. LR i Skaraborg 1995–02–22, Ō 1274–94, Ō 915–94 and Ō 3059–94. To be charitablesome excuse for such action can be found in lack of time.

76. Decisions in cases UN 73 and UN 274 (in Sandesj¯, H. and Björk, K. (Eds), Utlänningsärenden—Praxis, supplement 1 (1995)).Google Scholar

77. N.J.A. 1992, s.532.Google Scholar

78. E.g. R.H. 1995:66 concerning access to a court to challenge an administrative decision liquidating a company.Google Scholar

79. See the Administrative Court of Appeal case regarding Art.6, dealt with infra Part IX.

80. For an example of this cautious approach see an unreported decision of Gothenburg District Court (case no. B 15481–97, 19 Dec. 1997).

81. R.H. 1996:58 (concerning disqualification of a judge)Google Scholar and R.Å. 1996Google Scholar note 302(concerning the right to an oral hearing in appeal proceedings before a court regarding an administrative decision to revoke a driving licence. The plaintiff in the latter case, unlike the plaintiff in the Pudas case, was not a professional driver).

82. Cf. Case 80/86, Officier van Justitie v. Kolpinghuis Nijmegen [1987] E.C.R. 3969.Google Scholar I leave aside the thorny question of whether this might be justifiable in extreme situations, such as that of the East German border guards. See judgment of the BVerfG of 24 Oct 1996(1997) 18 H.R.L.J 65.Google Scholar

83. 1947:164.

84. Court of Appeal for Western Sweden, judgment of 9 Apr. 1996 (not rep.). The fact that this case was not reported in itself reveals the embarrassment with which the majority of the legal establishment view constitutional review.

85. See e.g. Derbyshire County Council v. Times Newspapers [1992] Q.B. 770.Google Scholar

86. The absence of such a “go ahead” from Parliament was cited as the main reason for not taking more judicial notice of the Convention in, inter alia, R. v. SSHD, ex p. Brind [1991] 1 A.C. 696Google Scholar and R. v. Ministry of Defence, ex p. Smith [1996] 2 W.L.R. 305.Google Scholar

87. 1994:1715.

88. Decisions of 15 Aug. and 17 Sept. 1996 (not rep.).

89. R Å. 1995, ref. 58.Google Scholar It was careful to distinguish the two cases, although in substance the two issues are the same. R.Å. 1995 ref. 58Google Scholar went against an earlier judgment of the Supreme Court (N.J.A. 1994, s.657Google Scholar). For a discussion of the conflict between the two supreme courts, see Cameron, , op. cit. supra n.7, at pp.254–255.Google Scholar

90. 1971:289.

91. R.Å. 1997 ref. 65.Google Scholar For the application of the principle of judicial remedies see Case C–97/91, Borelli Spa v. Commission [1993] E.C.R. 1–6313.Google Scholar For a discussion see Andersson, op. cit. supra n.66.

92. For a discussion of the case see Nergelius, J., “The impact of EC law in Swedish National Law—A Cultural Revolution”, in Cameron and Simoni, op. cit. supra n.6.Google Scholar

93. See Nergelius, J., Konstitutionellt ra˘ttighetsskydd (Constitutional Protection of Rights) (1996), pp.701–703.Google Scholar

94. Nergelius, however, expresses the view, idem, p.685, that the effect of RF 11:14 is to emasculate RF 233 to the extent that it becomes a simple interpretative rule, giving only aweak precedence to the Convention in the event of an apparent conflict between it and another Swedish norm. I do not agree with this. In the event of a conflict, the interest in giving the Convention precedence should not be balanced against other interests. RF 2:33 clearly allows, indeed obliges, the courts to set aside statutes in concrete cases.

95. Cf. Danelius, , op. cit supra n.57, at p.46Google Scholar: “The debate in the travaux préparatoires hardly gives answers to this question [of how to handle conflicts] and the courts must therefore be considered to have considerable freedom in this respect to develop their case law in a way they consider appropriate.” Stromberg, , op. cit. supra n.48, at p.23Google Scholar, argues that the lack of guidelines in the travaux préparatoires as regards the interpretative exercises which are to be performed means that constitutional review will be the dominant means of judging the compatibility with the Convention and other Swedish law, but this underestimates the Swedish judge's reluctance to engage in overt constitutional review.

96. Cameron, , op. cit. supra n.7, at p.240.Google Scholar

97. See SOU 1978:34, s.109.Google Scholar

98. See Nergelius, loc. cit. supra n.93, Holmberg, E., “På spaning efter rāttigheter” (“Looking for Rights”) (1987) Sv J.T. 653, 662–664Google Scholar, Bengtsson, B., “Om domstolarnas lagprōvning” (“On Constitutional Review by the Courts”) (1987) Sv.J.T. 229.Google Scholar

99. Jones, T. H., “The Devaluation of Human Rights under the European Convention” (1995) P.L. 430.Google Scholar

100. See e.g. von Brünneck, A., “Constitutional Review and Legislation in Western Democracies”, in Landfried, op. cit supra n.14.Google Scholar

101. SOU 1993:40. Although to be fair, doubts were expressed regarding the lack of a general right to an oral bearing (p.58) and the limited possibilities of obtaining damages from the State when a breach of the Convention is committed (p.78).

102. As Smith writes, “when the judge discovers constitutional problems of which the legislator was not aware, it is not easy to see why the judge should not prefer the constitutional norm over the legislative one”: Smith, E., Constitutional Justice under Old Constitutions (1996), p.375.Google Scholar

103. The “proper consideration” test is most used in countries which emphasise the importance of travaux préparatoires in discerning the legislator's will—which suggests that it could be appropriate for Sweden: idem, p.375.

104. See e.g. Vermeire v. Belgium, 29 Nov. 1991, A/214–C.Google Scholar

105. An example of this is R.Å. 1996 ref. 97, supra n.55.Google Scholar

106. Thanks to Thomas Bull for useful comments on this point.

107. For a brief discussion of the approaches taken by the Danish and Norwegian legislators see Cameron, , op. at supra n.7, at p.238.Google Scholar

108. Of course, the interest in shielding the ordinary courts is one of the main arguments for establishing a specialist constitutional court.

109. See the comments of Sterzel, F., in Räiufonden, Författningsdomstolen och lagprövning (1991), p.88.Google Scholar A good example here is R.H. 1995:85, supra text accompanying n.87.

110. An interesting example of a recent judicial decision on property rights that was partly based oa the Convention was the interim decision of the Supreme Administrative Court ordering a stay of execution of the government's decision to dose a nuclear power station(R.Å. 1998 not 93). This decision had major political implications for the ruling Social Democratic Party.

111. In addition to Nergelius, op. cit supra n.93, see Warnling-Nerep, W., “Rättsprovning: ett mölte mellan civilrätt och offentligrātt samt tillika ett uttryck für rättsväsendets europisering” (“Judicial Review: A Meeting Between Civil Law and Public Law and an Expression of the [Europisation] of the Legal System”) (1997/8) 9 J.T. 904Google Scholar, Lavin, R., “Domstolskompetens enligt artikel 6 i Europakonventionen” (“The Competence of the Courts under Article 6 ECHR”) (1994/5) 6 J.T. 731Google Scholar, Strōmberg, H., “Delade meningar om allmän förvaltningsdomstols kompetens” (“Differing Views on the Competence of theAdministrative Courts”) (1995) F.T. 211Google Scholar, Danelius, H., “Svensk konventionsbrott”(“Swedish Breach of the Convention”) (1995) Sv.J.T. 63Google Scholar, Hane, J., “Europarättsintegrationen och fallet Stallknecht” (“European Integration Law and the Stallknecht Case”)(1995–1996) 7 J.T. 934Google Scholar, Warnling-Nerep, W. and Vogel, H., “Allmän domstol eller förvaltningsdomstol, och vilken förvaltningsdomstol?” (“Ordinary Court or Adminstrative Court and which Administrative Court”?) (1996) F.T. 213.Google Scholar

112. Gustafsson v. Sweden, 25 Apr. 1996.Google Scholar See Schmidt, F., Eklund, R., Göransson, H., Kallström, K. and Sigemann, T., Facklig arbetsräti (Trade Union Employment Law) (1997), pp.236–238.Google Scholar

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