Nämndemannasystemet - ett institut i förändring? Reformarbete och modernisering
Sammanfattning: The Swedish lay judge system is a nearly thousand year old tradition, but has during that time been an institution in constant change, whose role has changed significantly from when it was first introduced into Sweden’s administration of justice until today’s modern system. The lay judges were originally used as a means of proof, thereafter functioned as ordinary judges, to later be reduced to advisory roles. After the lay judge role was strengthened through the 1983 reform, when they acquired an individual vote, and six years prior were introduced into the courts of appeal, not much has changed, despite several commissions of inquiry. On June 25th, 2013, the Lay Judge Inquiry submitted their report (SOU 2013:49), which far-reaching proposals meant to fundamentally reform today’s lay judge system. The Inquiry had been tasked to review the lay judge system for the purpose of modernising the role of lay judges, to ensure that their participation in the administration of justice maintains the public confidence in the adjudication process. Amongst other things, it was proposed that lay judges would not participate in cases of a straightforward nature, or in cases that mainly comprise of complicated legal issues, to reduce the number of lay judges in courts of first instance from three to two, and to withdraw them from the courts of appeal and administrative courts of appeal. It was also proposed that public nominations outside party circles be introduced by a so called free quota. However, the subsequent government bill (prop. 2013/14:169) did not include any of these proposals, and the 2014 lay judge reform resulted in only minor changes. The real reasons for the last 30 years reluctance to reform the lay judge system can only be speculated about. The old tradition might be a factor, but today’s modern system does not go all that far back. Politicians might be afraid to lose their privilege to exclusively appoint, and in practice even act as lay judges. Furthermore, politicians hold an excessive belief in the democratic function they feel the lay judges contribute to the adjudication process, and are therefore unwilling to limit the influence and participation of the lay judges. It would also be costly to replace the lay judges with legally qualified judges. The main reason though, is probably that lay judges currently cause no harm to the administration of justice, as their influence in practice is severely limited by the legally superior ordinary judge, who has a strong guiding role which the lay judges rarely oppose. Not until lay judge participation is seen, by both politicians and the public, as doing noticeable and considerable harm to the administration of justice, will the system be seriously questioned and comprehensive reforms introduced. The primary arguments for lay judges in the Swedish courts have political motives, and are democratic in nature. They are considered to be: that public influence over the administration of justice entails transparency, democratic control, expression of the general perception of justice, more balanced trial by broadened life experience, pedagogical reasons, safeguard against technocracy, and as a consequence of these, public confidence in the adjudication process, which lends legitimacy to the courts and their legal proceedings, and finally that laymen are less expensive than career judges. The primary arguments against lay judges in the Swedish courts have legal motives, and are technocratic in nature. They are considered to be: lack of legal expertise, no development of method, risk of subjectiveness, risk of politicization, and finally reduced efficiency. A position for or against a limited influence and reduced participation of lay judges in the Swedish courts is therefore based on a legal-political trade-off between democratic values and technocratic advantages. The public confidence in the lay judges and the administration of justice is the most central question when it comes to the lay judge system, and is necessary to lend the courts and their decisions legitimacy. If the citizens do not perceive the lay judges to represent the general public, or that they are of any real benefit in the administration of justice, they lack public confidence, and can therefore not be said to maintain the public confidence for the adjudication process. In today’s modern constitutional state, it can be asked if the public might not prefer legal expertise, a greater degree of predictability, improved rule of law, and faster and more efficient processing, to the politicians’ highly rated democratic motives for lay judge participation. Alternatives to the current lay judge system, which from that perspective would increase public confidence in the judicial process and thus strengthen the administration of justice, would be to either adopt the proposal of the Lay Judge Inquiry regarding a more appropriate use of the lay judges, or replace these with legally qualified judges. The latter is currently not politically imaginable, and can only ever be considered once the lay judges are shown to cause considerable harm to the administration of justice.
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