3.6. Tensions caused by the neoclassical approach
Another criticism of the Swedish juvenile criminal justice system might be that, in giving precedence to the offence rather than the individual, it does not respect the rights of the child. Because of Sweden’s duty to uphold the UNCRC, the best interests of the child should be a primary concern, including when dealing with juvenile offenders.447 This protection of the interests of juveniles rests upon article 3 of the UNCRC, which stipulates:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.448
However, the “best interests of the child” principle is not (yet) explicitly expressed in the juvenile criminal justice system.449 The UNCRC, which was
445 I elaborate on this aspect in section 126.96.36.199.
446 For a detailed account of sentencing in Sweden, see section 4.3.2.
447 See prop.2005/06:165, 42; Borgeke and Månsson (2007), 186; Nordlöf (2012), 232; or RättsPM 2013:7, section 3. This also becomes clear in explicit guidelines issued to public prosecutors about how to respect the UNCRC (see Guidelines by the Development Centre (my translation of “Utvecklingscentrum”) Stockholm in relation to the treatment of young offenders).
See also most recently Burman (2016).
448 International rules and conventions have gained more and more importance in Swedish legislation over the last few decades; see for example Dag Victor, “Svenska domstolars hantering av Europakonventionen,” (Svensk Juristtidning (SvJT) 2013: 343–96). One example is the UNCRC.
449 See Nordlöf (2012), 271.
ratified by Sweden 1990,450 has not directly been incorporated into Swedish law and therefore does not in itself constitute binding law in Sweden; 451 but, according to the ratification duty, it has been transformed into the Swedish constitution without any conditions – including in relation to the demand to consider and respect the “rights of the child”.452 This also means that Swedish criminal law should be consistent with article 40.1 of the UNCRC, which stipulates:
States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
That said, the UNCRC has still not been incorporated into Swedish law.453
As will be seen in the following chapters, the Swedish juvenile criminal justice system also features specific rules for young offenders that deviate from those that prevail in the adult criminal justice system. Consequently, even a neoclassical approach may raise concerns regarding equality. The principle of equality454 before the law is anchored in the Swedish constitution. Treating young offenders differently from adult offenders (for example by mitigating the sentence) may conflict with the principle of equality. However, as in Germany,
450 See SÖ (Sveriges överenskommelser med främmande makter (Swedish Agreements with Foreign Powers – my translation)) 1990:20.
451 Sweden features a so called dualistic system; see SOU 2016:19, 350-1.
452 See chapter 1 §2 section 5 Regeringsformen (RF) and SOU 2009:68, 129–30.
453 In winter 2015, the Swedish government extended an ongoing investigation with the aim of incorporating the UNCRC into Swedish legislation; see Dir.2015:17. It was followed by SOU 2016:19 recommending to incorporate the UNCRC into Swedish law, which then could be directly applied by the courts.
454 “Principen om allas likhet inför lagen” (my translation) is in Sweden stipulated in chapter 1 §9 RF. See Lernestedt (2015), 15–21, for definitions and discussions of the relevant terms and concepts. He also points out the problem of formal and material equality (18–19).
differential treatment is permitted on humanitarian grounds. Such a ground is the age of the offender.455
With respect to equality between young offenders, Sweden has faced the same problem of heterogeneous verdicts as has arisen in Germany.456 The application of the law was considered to be far too dependent on judges’ individual perceptions of cases,457 which led to the unequal treatment of different young offenders. Swedish legislators decided to act. The result was the adoption of fairly precise sentencing rules.458 Chapter 29 §1 BrB, which is also applicable to young offenders, calls more or less explicitly on the courts to focus on the unity of the application of the law. If equality in verdicts is the aim, it demands fairly precise rules concerning sentencing. This means the court’s task becomes more mechanical: the court has to subordinate itself and its decisions to a system in which the uniform application of the law is a central aim.459 However, the judge’s task can never become so constrained as to not leave the court any leeway in decision making. Since the courts deal with human beings and since no case will be entirely like another, the outcome of a trial can never look like a mathematical equation. Equality cannot be achieved by simply creating rules to be followed – cases are too unique for that – but will always demand a certain balancing of the different interests in a just way. Even if the judge’s discretion is smaller in Sweden than in Germany, the court still has a fairly wide field to operate in and to reach different outcomes in similar-looking cases.
Even though Sweden took rather radical steps to reach equality, criminological research shows that the demand for equal punishment for equal offences is not fully realized.460 Even if legal practitioners (judges) were to respond to this criticism by claiming that no cases are completely alike, it cannot be ignored that on a higher level there are clear patterns in how courts adjudicate.461
455 See Nordlöf (2012), 160; see also Diesen, Lernestedt, Lindholm, and Pettersson (2005), 204ff.
456 See Per-Ole Träskman, “Har vi någon ‘tjeck’ på straffmätning och påföljdsbestämning,” in Josefs resa - vänbok till Josef Zila, 221–36. (Uppsala: Iustus Förlag, 2007), 227.
457 See prop. 1987/88:120, 43–8. Zedner (1998) says that “at each historical moment the young offender is in part a construct of the sentencer’s vivid imagination” (186).
458 See section 4.3.2.
459 See Träskman (2007), 225–6.
460 See Per-Ole Träskmann, Samma straff för lika brott- strävande att uppnå en enhetlig rättstillämpning inom Europa (Rikosoikeudellisia kirjoituksia VII. Pekka Koskiselle 1.1.2003 omistettu. Helsinki 2003b), 304. See also Bra-Report 2000:13.
461 See Träskman (2007), 229.
Träskman concludes that the present system for young offenders in Sweden is too complicated in practice to achieve the goal of equal verdicts. There are too many different legal consequences and too many possibilities of combinations of consequences for the system to be clear. This leads to a lack of predictability, equivalence, and equality.462
Another concern about the neoclassical approach was mentioned in prop.1997/98:96, in which the Swedish government warned against taking neoclassical thinking too far. SOU 1995:91 I-III had originally proposed abolishing the legal consequences “conditional sentence” and “supervision”463 because of the degree of foresight needed in order to determine when these punishments are appropriate. However, these proposed changes were never implemented because of the loss of flexibility that they threatened.464 It was thereby indirectly acknowledged that the neoclassical turn in Swedish (juvenile) criminal justice implies a certain loss of flexibility.
3.6.4. Interfering with the judiciary: Separation of powers and non-legislative influences
As was pointed out before, the Swedish juvenile criminal justice system is closely tied to the adult criminal justice system, especially when it comes to sentencing rules. The quest for more equality in verdicts has led to fairly precise rules on sentencing in Sweden.465 This may be seen as problematic in relation to the independence of the judiciary and the separation of powers. The legislature steers the judiciary. This could mean that sentencing becomes subject to political influence.
462 See Hanns von Hofer, “En översyn av påföljdsystemet (Dir.2009:60),” in Festskrift till Per Ole Träskman, 238–45 (Stockholm: Norstedts Juridik, 2011), 239; also Träskman (2003a), 191, who – like others – also points out another problem: that there is no clear ranking of legal consequences.
463 See section 188.8.131.52.
464 See prop.1997/98:96, 76-8.
465 See sections 184.108.40.206. and 220.127.116.11.
Furthermore, the court sets out from the sentence which would be applicable for an adult offender and then mitigates it if the offender is a young person, often making use of a list of suggested reductions. Borgeke, Månsson, and Sterzel466 gathered decisions of the HD and developed a kind of “handbook” for how to sentence in different situations. According to my Swedish interview partners,467 this handbook occupies an important – if not indispensable – place in the practice of Swedish courts. Träskman confirms that the Studier rörande påföljdspraxis book is probably the most frequently cited source among judges and has achieved a respected status.468 Additionally, because Swedish sentencing law for young offenders is based on sentencing for adults,469 scales for reducing the sentence depending on the age of the perpetrator have been developed.470 Note that these guidelines are created by practitioners and legal scholars. Even if they can be seen as consisting merely of the decisions of the HD, put into a more general framework, they are the result of private initiative and do not have the character of official policy.471 The HD does not support such a system of guidelines;472 however, the HD has itself applied these guidelines, for example in NJA 2002, 489.
A possible danger which accompanies the allocation of guidelines is the risk that the court adheres too strongly to the scale, thereby sacrificing its independence.473 Although not binding, such guidelines might be interpreted as an infringement of the independence of the judiciary. The use of “lists” limits the judge’s discretion in the interests of predictability and equality. A necessary consequence of this is a lesser degree of flexibility when selecting a legal consequence. An outsider could get the impression that determining the correct
466 Martin Borgeke, Catherina Månsson, and Georg Sterzel, Studier rörande påföljdspraxis med mera (5th Edition. Stockholm: Jure Förlag AB, 2013).
467 For the empirical research, see chapter 7.
468 See Träskman (2007), 228.
469 See section 4.3.2.
470 See Martin Borgeke, Att bestämma påföljd för brott (Stockholm: Norstedts Juridik AB, 2012).
471 See Träskman (2007), 228.
472 See NJA 2000, 421.
473 This view is shared by Jaakko Forsman, Anteckningar enligt professor Jaakko Forsmans föreläsningar öfver straffrättens allmänna läror med särskild hänsyn till strafflagen af den 19 december 1889 (Med tillstånd af föreläsaren utgifna af Lars Wasastjerna. 3rd Edition. Helsingfors 1930), 526–7.
legal consequence is more like a mathematical equation and is somehow a static matter. It is something of a human weakness to search for guidelines to hold on to when the field one is operating in becomes ambiguous. But every individual case demands that the court consider its unique circumstances by finding the right legal consequence. Especially when the law provides for a wide range of consequences for a court to choose from – as is the case with young offenders – the hazards of explicit guidelines become greater. Will the verdict show enough respect to the circumstances of the individual case?
Träskman has disputed the need for rules and guidelines and asked whether it is not sufficient to act with a modest and humane attitude towards one’s fellow humans and one’s society – whether common sense combined with rational thinking might not allow a judge to act right.474 As persuasive and worthwhile as this ideal is, one has to consider that it most probably is achievable only in a perfect society. Judges are human. They are influenced by personal values, fears, practical considerations like efficiency, etc. It is this human aspect that gives rise to the tendency towards sentencing guidelines and the prioritization of objectives like public confidence, transparency, and consistency.