The European Convention on Human Rights in Sweden: Legal Practice and Legal Theory Analysed

Abstract: The European Convention on Human Rights (ECHR) has been part of Swedish domestic law since 1995 and the Swedish government and the Supreme Courts of Sweden asserts that Swedish courts implemented it. However, the European Court of Human Rights (ECtHR) have judged Sweden 61 times for violating the ECHR, including eight judgments regarding Article 3 (prohibition of torture). Thus, Swedish courts clearly don’t fully implement the ECHR indicating they adhere to some conflicting legal reasoning. The literature says little about how and why domestic courts implement or don’t implement the ECHR and Swedish courts are especially neglected. The purpose of this study is to fill this gap in the literature and determine how and why the legal reasoning of Swedish courts conflict with the ECtHR. I have therefore, in relation to the eight mentioned cases, attempted to answer the following questions. (1) What legal arguments are held by Swedish courts and the Swedish government in these cases? (2) What legal arguments are held by the ECtHR in these cases? (3) In what ways do the legal reasoning of Swedish courts and the Swedish government in these cases conflict with the legal reasoning of the ECtHR and thus in extension with the ECHR? (4) How can this conflict be understood from a socio-legal perspective, especially in the light of Pound’s (1910) legal theory? I have used Bryman’s (2016) description of qualitative contents analysis to determine the how and turned to existing literature and to Pound (1910) to answer the why. I have drawn on Pound’s (1910) description of how law in action in United States (US) state courts don’t follow the law in books defined by US federal law or the case-law of the US supreme court. A behaviour of courts that Pound (1910) argue is symptomatic for courts in general why I have applied this notion to Swedish courts and the ECHR as defined by ECtHR case-law. I have found that the strategies and reasons for such strategies described by Pound (1910) are in line with the behaviour of Swedish courts and in extension the Swedish government. Specifically, that Swedish courts reinterpret and ignore parts of ECtHR case-law when implementing the ECHR. Seemingly due to conflicting legal values making Swedish courts reluctant to seed legal control to the ECtHR regarding legal implementation of the apparent sensitive legal issue of asylum. My findings also support and are supported by previous research. For example, the findings of Helfer (2008a, pp.132-133, 137) that European domestic courts tend to ignore ECtHR case-law when implementing the ECHR and instead adhere to legal values and norms inherent to their own domestic court system.