OPINION: ‘Sweden fails to grant fair trial rights once again’

Dagens Juridik 2022-09-15: https://www.dagensjuridik.se/nyheter/debatt-allra-vdn-ar-felaktigt-domd-tar-malet-till-europadomstolen/
When it comes to human rights and the rule of law, Sweden struts the international stage. We do not shy away from praising ourselves and criticising other countries. There is, however, reason to question this self-image. In the last ten years, the European Court of Human Rights (ECtHR) has, on a number of occasions, found Sweden guilty of violating the right to a fair trial. We believe that Sweden will soon be found guilty once again.
One of Sweden’s most high-profile criminal cases in the last five years has been the Allra case. Allra was a limited company operating in the Swedish premium pension market, a pension system that has attracted international attention and is still today politically controversial. It was introduced in the 1990s as part of the approach to managing Sweden’s crisis-hit public finances.
Last year, representatives of Allra were found guilty by the Svea Court of Appeal of offences related to the purchase of certain securities. They had previously been acquitted on all counts by the Stockholm District Court, which was met with indignation by many opinion formers. The attention was heightened by the political conflict surrounding the pension system as such.
The Allra representative who has received the most attention is the company’s then CEO, Alexander Ernstberger. The Svea Court of Appeal sentenced him to six years in prison and to pay hundreds of millions of Swedish kronor (SEK) in damages for gross breach of trust and gross bribery.
The Svea Court of Appeal’s judgement probably appeared reasonable to most people. The media’s almost unambiguous portrayal of Alexander Ernstberger and the co-defendants was, and still is, that they used clever transactions to scam pension savers out of enormous sums of money. When asked to examine the judgement from a human rights perspective, we were therefore initially puzzled. How can human rights be relevant in this context?
However, examining the case more closely, we saw a completely different picture emerge. Besides the fact that the securities purchase resulted in a profit for the pension savers of over SEK 100 million, the conviction is based on a trial that in fundamental respects violates the requirements for a fair trial, as set out in the European Convention on Human Rights.
In order for person accused of a crime to be able to defend themselves, they must first know what they are accused of. Second, all material evidence in the authorities’ possession must be disclosed to the accused. Third, the court trying the charge must consider the accused’s objections and provide sufficient reasons for the decision it has reached and base the decision on correct factual information.
In the Allra case, the Svea Court of Appeal has infringed all of these fundamental procedural requirements and thus seriously violated Alexander Ernstberger’s right to a fair trial in accordance with the European Convention on Human Rights.
First, Alexander Ernstberger was charged with having decided to use pension savers’ money to purchase securities overpriced by at least SEK 138 million and for having appropriated much of this amount. He introduced substantial evidence that refuted the claim of overpricing. The Svea Court of Appeal, however, convicted him of something totally unrelated to what is stated in the charge of purchasing overpriced securities, namely that he was to have let the decision to purchase the securities in question ‘depend on’ whether he and another representative of Allra were permitted to sell certain shares in another company. This came as a complete surprise in the Svea Court of Appeal, and Alexander Ernstberger had no way of defending himself against the claim.
Second, the Svea Court of Appeal ruled on the case even though the Swedish Pensions Agency had not disclosed all material evidence. This was despite the fact that Alexander Ernstberger was, according to a judgement in a parallel case, entitled to have the evidence disclosed to him. This evidence, which Alexander Ernstberger still has not received, likely contains material that speak in favour of his innocence. The Swedish Pensions Agency’s representative has stated that the material would give Alexander Ernstberger ‘unique procedural benefits’.
Third, when handing down its conviction, the Svea Court of Appeal did not consider the important objections and the comprehensive evidence produced by Alexander Ernstberger to disprove the charges. Moreover, in crucial parts of the case, for example regarding the question of intent, the Svea Court of Appeal has failed to present reasons for its conclusions. Additionally, the judgement is based on incorrect information about when documents had been drawn up and agreements entered into and which ones have even been entered into.
Alexander Ernstberger would have never been convicted in a trial that meets the requirements derived from the right to a fair trial. He must therefore be granted a new trial that respects his fundamental human rights. In light of this, we have lodged an application against Sweden at the ECtHR with regard to the serious violations of his right to a fair trial.
An examination of the case by the ECtHR is also important from a wider perspective. If Sweden is to maintain its proud self-image as a country leading the way in guaranteeing the rule of law, it requires the Swedish Government to tackle the rule of law problems and demonstrate that fundamental human rights are respected even in major, headline-grabbing cases.
Percy Bratt, lawyer
Joakim Lundqvist, lawyer
Percy Bratt is a lawyer and recipient of the Swedish Bar Association’s 2020 award for outstanding work in the legal profession. The citation described him, among other things, as ‘personifying the importance and value of the democratic rule of law’. Percy particularly works on human rights issues and has represented clients in high-profile cases where the ECtHR has ruled against Sweden and Estonia. He is chair of the foundation Rättsfonden and former chair of the board at Civil Rights Defenders.
Joakim Lundqvist is a lawyer and a member of the board of the Swedish Section of the International Commission of Jurists. He has particular expertise in the field of human rights and has, among other things, been involved in a high-profile case where the ECtHR has ruled against Estonia.