Håkan Hydén and Minna Gillberg
1. The Constitution, Human Rights and Access to Courts in Sweden
During the last 20 years fundamental civil liberties represent one of the most important themes of Swedish legislation, despite the fact that there has been a fair amount of political controversy as regards the need for legal rules on this subject. "Surprisingly" there is not a declaration of inalienable human rights independent of state authority in the Swedish Constitution. The purpose of the Swedish system is to provide binding legal rules that can be invoked in national courts and in relation to national authorities. Some general provisions are included in the Instrument of Government, IG, chapter 7: For example, public power shall be exercised with respect for the equal value of all citizens and for the freedom and dignity of the individual; the personal, economic and cultural welfare of the individual shall be fundamental aims of public activity, etc. The guarantees provided relate primarily to the individuals relations with bodies representing the public interest, but not in relation with other citizens or private subjects. The protection provided under the Constitution is basically as follows. There are certain inalienable rights and liberties. To be noted is that there are no provisions referring to health or safeguarding the environment. A majority of the rights and liberties can be restricted, normally by law issued by the parliament or the Government. Certain rights apply to some extent in relations between individuals. Basically, non-Swedes are accorded the same legal status as Swedes. Two separate fundamental laws safeguard the freedom of speech, in the press and in other media, respectively.
In addition to this constitutional system there is the protection provided by the European Convention of Human Rights. This Convention was however only recently incorporated into Swedish law (1994) and the primary reason for doing so was the fact that it is integrated into Community law. Sweden has a rather bad reputation concerning the requirements stated in Article 6 of the Convention. The European Court has on several occasions pronounced against Sweden, particular in cases regarding civil liberties and failure to meet the requirements for access to the courts. Many cases involving civil liberties are still decided by the Government or by central administrative agencies. As a consequence of the many pronouncements against Sweden, a provision was adopted in 1988 allowing appeals against Government decisions to be made to the Supreme Administrative Court. The compliance with the European Convention is still questioned since the Supreme Administrative Court does not try the legal circumstances of the case but only provides a judicial review, that is, examines the correctness of the formal handling of the matter and if the decision contravenes any legal rule.
2. A permit issued - a "licence for life"?
The first Environmental Protection Act (EPA, SFS 1969:387) was enforced within the administrative structure by the National Licensing Board for Environmental Protection (Koncessionsnämnden för miljöskydd). The Licensing Board, set up in 1969, was under jurisdiction of the Swedish Government and issued permits and directives on emission levels and other larger-scale environmentally hazardous (i.e. industrial) activities. Permits for less significant environmentally hazardous activities were granted by the County Administrative Board (Länsstyrelsen). Since it was an administrative procedure, the national Government acted as the highest administrative court of appeal - a somewhat problematic roll as regards the security of "life and property" and Article 6 § 1 of the European Convention on Human Rights.
The proceedings of the Licensing Board were not clearly regulated in the EPA, there were no formal rules of procedure for the hearings before the Board. For instance, witnesses did not testify under oath and cross-examination is not allowed. The hearings had all the attributes of an informal seminar wherein, from time to time, the chair created its own procedural rules. It was partly an open hearing where the chair decided who may take part. The Licensing Board was composed of a chair and three other members, all of whom are appointed by the Government (based on a recommendation from the industry branch organisation and the SEPA). The chair was required to be well-versed in the law and experienced in performing judicial functions; in addition, one of the other three members had to have expertise and experience in technological matters, the second must have experience in activities which fall within competence of the SEPA, the third in industrial or municipal matters. The members of the board thus consisted of a lawyer, a technical expert, a representative of the SEPA and a representative from the concerned branch of industry or the municipality.
In principal, once the Licensing Board had issued a permit and it had gained legal force, it remained in effect for all time. The Act did in fact state that permits may be re-examined ten years after issuing, even earlier if unexpected problems arise subsequent the permit being issued or if the environmental situation can be improved through the use of better technology or industrial process. However, the permit-holder and the SEPA exclusively had (and have) the right to initiate a reconsideration of the permit before the Licensing Board. The same rules applied if a permit was issued by the County Administrative Board. This meant (and still does) that if a person suffers damage from an environmentally hazardous activity performed by a permit-holder, she or he has no legal resource to stop the activity, or to force the permit-holder to limit the extent of the damage (it was/is only possible to lodge a claim for compensation). Thus, the permit protects the offending permit-holder in perpetuity from attempt to seek redress through the courts. Since the Environmental Protection Act entered into force in 1969, the SEPA has had the exclusive legal right to initiate a reconsideration of the permit before the Licensing Board. To date, the Board has issued more than 6,000 permits. The SEPA has so far exercised its right to initiate a reconsideration of the permit in approximately 50 cases.
3. Having to drink cyanide - Swedish Environmental Legislation violates the European Convention on Human Rights
As mentioned above, a person who suffers damage from an environmentally hazardous activity permitted by the Licensing Board has no legal resource to stop or limit the activity. In consequence, the Swedish environmental NGO Miljöcentrum together with the lawyer Staffan Michelson decided to challenge this procedure (as part of their litigation strategy elaborated below) in the European Court of Human Rights, claiming that Article 6 § 1 of the convention had been violated, and that Sweden had breached its obligations under this Article. The European Court of Human Rights found, in the case of Zander vs Sweden (45/1992/390/468), that there had been a violation of Article 6 § 1.
It had been discovered in 1979 that waste containing cyanide had been deposited on the dump, and analyses of drinking water emanating from a nearby well had shown excessive levels of cyanide. The European Court of Human Rights found that the applicants' claim was directly concerned with their ability to use water in their well for drinking. This ability was one facet of their rights as owners of the land on which it was situated. The right of property is clearly a "civil right" within the meaning of Article 6 § 1. Consequently, notwithstanding the public law aspects invoked by the Government, the Court considered that the entitlement was a "civil rights" issue. Under Swedish law it was, and still is, impossible to put a government decision under review by a legal court, even if a "civil right", as stated in the European Convention on Human Rights, is violated. Sweden is now a full fledged member of the European Community, but the administrative procedures of the Licensing Board have, as mentioned above, not yet been altered.
Swedish politicians have argued that this is a question of too great an economic importance leave to the public and, as the Swedish Government argued before the European Court, if Article 6 § 1 were to be found applicable to the proceedings under the 1969 EPA, a foreseeable consequence might be states being obliged to introduce a multitude of comprehensive court remedies, covering a wide range of environmental matters, in order to deal with complaints by large numbers of plaintiffs about exposure to potential, not just actual, risks of damage. This would be far more costly and cumbersome than the present procedure under the 1969 Act (and the new act, see below) which, in the Government's view, adequately protects the interests not only the public, but also of the individual.
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