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Commentary: The effects of COVID-19 on access to justice in Sweden

FairTrialsAdmin - April 29, 2020 - COVID-19 Updates, Commentary, Prison conditions, Remote Justice, Access to interpretation services

This post was written by Annika Åkerberg, Senior Legal Adviser at Civil Rights Defenders.

 

Trials and the actions of the Swedish Courts

The various courts of Sweden hold the main responsibility over their own methods on how to act in relation to COVID-19 and there is currently no strict common direction for how they should follow the recommendations of the Public Health Authority without debilitating the rule of law. 

For example, some courts have decided to prioritize negotiations with detainees, detention negotiations, youth cases, family cases where children run the risk of ill treatment and urgent matters such as bankruptcies. Also, reorganisations of the composition of the courts have been done, such as having fewer people present in order to prevent spreading the virus. At the slightest symptoms, employees must stay home, which also has been taken in consideration to the number of judges assigned to the various cases. For example, one has ensured that cases that lasts for three or more negotiation days are operated by two jurors in case one of the judges becomes ill. Then the case can still be completed by the judge who is in place.

Many judges also try to hold conciliation discussions on the phone with parties. The use of video link or Skype may also become relevant for some main negotiations. Witnesses have also been able to be on the phone in some cases. New digital solutions are being investigated all the time and at present various courts are investigating possibilities for interpreters to conduct simultaneous interpretation of negotiations where the parties are on a link but where the interpreter can no longer sit together with the person to interpret them.

Further on, a large number of the district courts’ members are 70 years of age or older, and thus belong to a special risk group according to the Public Health Authority. Some courts have therefore decided to not call those members into any negotiations. [1]

These various measures can in different aspects affect the possibility of access to justice for individuals, Such as negotiations via video link versus at court can have a negative effect for some groups of society which cannot express themselves in the same ways using that form of communication. Also other types of problems which can hinder an effective negotiation can occur. As mentioned, the various approaches vary between courts and the main information that applies to all the courts is simply that if a person has symptoms of respiratory infection, including mild symptoms, they should not visit any court or tribunal, and they should contact the specific court in question and inform that they cannot attend court due to this. The general instruction that both staff and people visiting the court should stay home in case of any symptoms of the virus can of course negatively affect the possibility of completing negotiations in a time effective manner. Certain groups may be affected more by this, for example detainees’ rights to continuous retrials of detention orders, which also is the reason for why some courts decide to prioritize those types of cases.

Detention centres and closed facilities

The Swedish Prison and Probation Service has decided to stop visits to all institutions and detention centres in the country due to the corona virus. Inmates may not receive any visits, except by symptom-free defenders, prosecutors, police officers and persons who visit the inmates in their service or on behalf of the Swedish Prison and Probation Service. The inmates will subsequently not be granted new permits unless they are considered to be absolutely necessary, and already granted permits will be withdrawn.

The Swedish Prison and Probation Service justifies this by the risk of the infection coming in and spreading at the detention centres and other institutions. It is also stated that there is a serious overcrowding situation where you are often allowed to share a cell with a cellmate which also calls for the precautions. However due to this, inmates should call free of charge throughout April. [2]

Protests of various kinds have occurred at least three Swedish institutions since the introduction of the new anti-infection measures. [3]

Also, the possibilities to visit the Migration Agency's detentions centers are currently limited. This decision is valid for the time being. There have been possible cases of corona at the detention centers and these people have been isolated but not yet tested for the disease. The responsible infection control physician believes that the operations at the detention centres can continue as usual with some limitations regarding visits. [4]

In order to reduce the spread of the coronavirus in overcrowded prisons, UN Human Rights Commissioner Michelle Bachelet recently appealed to the world's countries to release prisoners who do not pose a threat to society and several countries have decided to release prisoners prematurely. Despite the fact that the Swedish Prison and Probation Service in Sweden has struggled with a lack of places in recent years, they have stated that it is not relevant to release prisoners from Swedish prisons because of congestion before serving their sentences. The chief of staff at the Prison and Probation Service states that it is a challenge with the few vacancies, but that it is not a problem to manage it so far. Therefore, the suggestion from the UN is not followed in Sweden. [5]

Deportations

The attitude towards expulsions currently in Sweden is unclear, it has not been stopped in general, however, e.g. Afghanistan announced that they will not receive anyone, thus expulsions to Afghanistan are not enforced. The decision so far is that the police will make judgments in each case as to whether detainees who cannot be deported should be released. [6]

The Migration Agency also continues to work with enforcement despite the Foreign Ministry's advice to not to. According to the Swedish Migration Agency they only work with self-repatriation and continues to work with enforcement of deportations to the extent possible. They further state that their work may be affected when transportation is down, but that the authority has not stopped work with returns. [7]

 

[1] http://www.domarbloggen.se/sodertorns-tingsratt/domstolen-och-covid-19/

[2] https://www.kriminalvarden.se/fangelse-frivard-och-hakte/information-om-corona/besok-och-permissioner-skjuts-upp/

https://sverigesradio.se/sida/artikel.aspx?programid=109&artikel=7427914

https://www.svt.se/nyheter/lokalt/orebro/kriminalvarden-stoppar-besok-och-permissioner

[3] https://www.svd.se/fangar-strejkade-mot-coronaatgarder

[4] https://www.migrationsverket.se/Om-Migrationsverket/Pressrum/Nyhetsarkiv/Nyhetsarkiv-2020/2020-03-18-Forvarstagen-konsta-terat-sjuk-i-covid-19.html

[5] https://www.svt.se/nyheter/utrikes/flera-lander-friger-fangar-i-fortid-1

[6] https://farr.se/sv/aktuellt-a-press/notiser/1774-stoppa-utvisningarna-av-vara-medmanniskor-omedelbart

https://polisen.se/aktuellt/nyheter/2020/mars/dialog-med-afghanska-myndigheter-gallande-verkstallighetsarenden/

[7] https://www.migrationsverket.se/Om-Migrationsverket/Aktuella-fragor/Coronaviruset.html

 

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