2016 Global Review of Constitutional Law

crime is not in congruence with Art. 15(1)
of the Directive read in the light of Art. 7, 8,
11, and 52(1) of the Charter (para. 112). The
matter is still to be decided by the Appeal
Administrative Court in Stockholm.
The question whether the UN Convention
on the Rights of the Child (CRC) should be
incorporated into Swedish law by adopting a
legal act has been investigated by a State Inquiry
Commission. Its report was submitted
at the beginning of 2016 and it recommended
that the CRC together with its two Optional
Protocols be incorporated into Swedish law. 9
Sweden is already bound by the CRC as a
matter of international law. If the CRC is to
be incorporated into Swedish law, the CRC
will become applicable national law, and not
only a supportive legal source. It will also
mean that the CRC can fill in lacunas in the
law and should there be a conflict of legal
norms, the CRC will precede lower-ranking
legislation and provisions. Additional advantages
are, reportedly, that it will send a
clear political signal; it will stimulate a rightbased
approach to issues related to children
and their well-being, and it will bring pedagogical
advantages. Sweden is a dualist state
and by tradition international conventions
have been transformed, meaning that they
have been translated and reformulated in order
to be, piece by piece, integrated into the
existing legal system. 10 The ECHR is, so far,
the only exception to this rule. The proposal
to do the same with the CRD has met heavy
criticism. Some of the main arguments
against incorporation are the vague formulations
in several of the articles of the CRC,
the cost it will bring with it to incorporate
due to, for example, an increased amount of
complaints, and the special assistance that
will be required when children to a larger
extent are expected to be heard as witnesses
etc. Another concern is how the CRC is to
be applied in migration law cases involving
children. Moreover, if compared with the
9
SOU 2016:19.
ECHR, the CRC has no supranational court
that will guide it in the interpretation of the
Convention.
On November 12, 2015, the Swedish Government
decided to close the borders temporarily
as a result of a request from the
Migration Board. 11 The decision has been
continuously renewed, at the beginning of
every month, but since June 2, 2016 these
decisions are not taken on a monthly basis.
The legal basis for that is found in Art. 29
of the Schengen Borders Code. According
to the latest decision, the Swedish border
is closed until May 10, 2017. The Swedish
constitution is silent on matters of civil
emergencies that might pose a threat to public
order and national security. Emergency
matters are therefore regulated in the form
of statutes. On December 21, 2015, a temporary
law entered into force (Lag (2015:1073)
om särskilda åtgärder vid allvarlig fara för
den allmänna ordningen eller den inre säkerheten
i landet). The law gives the Government
the powers to adopt temporary measures
in emergency situations in the form of
identity control on busses, trains, or ships
entering Sweden from another state (3 §). A
decision to impose such measures is valid for
six months. The law will end at December
12, 2018. A first-draft proposal was presented
to the Council on Legislation on December
5, 2015. This draft gave the Government
broader powers, including the power to close
roads, bridges, etc., that connect Sweden
with foreign territory, than the bill that was
finally adopted. 12 The Council on Legislation,
when exercising abstract a prio review
of the bill, had two major concerns with the
draft. 13 The first concern was related to the
procedural aspects of the legislative process.
The Council concluded that the bill was put
together hastily and that it did not serve its
purpose, i.e. to handle the challenges that the
increased number of migrants posed to society
at large and at the same time secure the
right to asylum. The Council on Legislation
stated that all concerned parties had not been
allowed enough time to review the proposed
bill and its consequences in accordance with
IG 7:2. 14 The second major concern was related
to the scope and content of the bill and
its impact on individuals’ rights and freedoms.
The Council basically argued that the
bill gave the Government broad emergency
powers without reflecting on basic rule of
law principles such as the right to judicial
redress and the protection of privacy rights.
The Council suggested changes to the bill
that would limit the emergency powers of
the Government. These suggestions were adhered
to when the law was adopted. In 2016,
the Swedish National Audit Office (SNAO),
which is a central part of the Parliament’s
control power, conducted an audit of the
enforcement of the Government’s decision
to impose border control up till the summer
of 2016. The SNAO found that the purpose
of the temporary border control and how to
achieve that purpose was not sufficiently described
in the decision by the Government.
As a result, the implementation was left to
the Police, and the Police did not have an
overall strategy or guideline of how to implement
the decision. Therefore it was left to
the individual officers and their commanding
officers to decide how to implement the
decision. The main criticism put forward by
the SNAO was that the delegation chain had
been direct from the Government to the operative
level within the Police without any
control as to whether the measures taken had
served their purpose, or whether they were in
accordance with the law. 15
On March 1, 2016, a new law entered into
force according to which municipalities were
required to accept migrants that have been
granted residence permits (Lagen (2016:38
om mottagandet av visa nyanlända invandrare
för bosättning). This created a controversy
based on different views on the scope of the
10
Iain Cameron, An Introduction to the European Convention on Human Rights, Iustus, Uppsala (2014) 31-32.
11
Regeringsbeslut 11:13, Ju2015/08659/PO.
12
Prop. 201516:67 p 25.
13
The Council on Legislation, 7 December 2015, available in prop. 201516:67.
14
“In preparing Government business, the necessary information and opinions shall be obtained from the public authorities concerned. Information and
opinions shall be obtained from local authorities as necessary. Organisations and individuals shall also be given an opportunity to express an opinion as
necessary”. IG 7:2.
15
RIR 2016:26 p 18.
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