Om nämndemän i asylprocessen
Sammanfattning: The Swedish asylum process changed fundamentally in 2005 when trials were transferred from an administrative process (utlänningsnämnden) to a court process (migrationsdomstolen). The general aim of the reform was to strengthen the rule of law in the asylum process. The new immigration courts are composed of lay judges. Lay judges are rooted in the Swedish tradition but they are common in other countries as well. Lay judges in Sweden are appointed following their nomination from the political parties. The success of Sverigedemokraterna in the 2010 parliamentary elections meant that they were entitled to an increased number of lay judges around the country. Therefore there is a fear that they, with their uncompromising position on asylum policy, will have difficulties in remaining objective which is a key requirement for any judge. This essay seeks to address the question of which arguments there are to allow lay judges to participate in the immigration court and whether their party membership can be challenged. During the introduction of the new immigration court there were hardly any discussions about the role lay judges would play in their functioning. Their participation was taken for granted, although there has been opposition to their participation in the judicial system. The main arguments put forward in their favor is that they provide enhanced legitimacy, greater democratic accountability, strengthen transparency and that they see the law’s purpose. One of the main arguments against is that they lack legal knowledge and training. Since the nominations of lay judges are made by the political parties there is a clear link between politics and the judiciary, a clear breach of the separation of powers. Whether this can disqualify the lay judges in the asylum process is regulated in the Swedish Code of Judicial Procedure (rättegångsbalken) and by a recently introduced article in the Swedish Constitution (regeringsformen) that states that a trial must be conducted fairly and within a reasonable time. This article means that the European Court’s case law concerning the right to a fair trial must be also be considered in the asylum process. The European Court’s case law shows that allegations of racism should be taken very seriously and that there are stringent demands for action to be taken by the court in order to rule out any doubts about impartiality. Preconceptions and discrimination are not acceptable. It is unclear whether lay judges could or would be challenged due to their party affiliation. It may be possible in a case where a party expresses an unacceptable prejudice or the party may have a specific interest in the case. If inappropriate comments are made at or outside the trial, it is likely that the trial would not be regarded as a fair under European law.
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