Anonyma Vittnen: A Paradigmatic Shift in Swedish Criminal Procedure
Buried amongst the global headlines of 2022, between reports of a war in Europe, a recovering global economy, and American midterm elections, was the somewhat unexpected rise of right-wing politics in Sweden. In September of 2022, Sweden’s Social Democrats received the largest percentage of the national vote, surpassing the traditional center-right Moderates party, and becoming the largest conservative party in the Scandinavian nation. What went perhaps even more unnoticed was Sweden’s ascendency to the title of the gun-murder capital of Europe.[1] In a nation commonly thought of as a peaceful, tolerant bastion of liberal democracy, prosecutors and legislators facing the intersectionality of far-right “tough on crime” political ideology and increasing violent crime have actively sought to implement criminal procedural changes as a means of deterring escalating gang activities.[2] After years of debate,[3] the Swedish government, through an official Inquiry, is currently considering a change to its criminal legal procedures[4]: Anonymous Witnesses (Anonyma Vittnen), or “crown witnesses.”[5]
A crown witness, similar in concept to a cooperating witness engaging in plea-bargaining in the United States, is a criminal defendant who receives judicially sanctioned mitigation of his or her sentence as a result of their participation and assistance in an investigation and prosecution of another person’s crime.[6] Although plea-bargaining has been adopted in many European nations, including Sweden’s Scandinavian and Nordic neighbors such as Denmark, Norway, and Finland, it is prohibited under current Swedish criminal law and Swedish criminal procedure precludes the concept altogether.[7] Crown witnesses, however, would serve as Sweden’s first foray into procedural mitigation of criminal sentences in an effort to efficiently prosecute violent offenders and exact criminal penalties on perpetrators.[8] One crucial difference between plea-bargaining under American law, however, is that crown witnesses in Sweden would be allowed to testify anonymously throughout all stages of a criminal investigation and trial[9] – causing academic experts familiar with American criminal procedure and evidentiary practices to find Sweden’s proposed change particularly abrasive. Whatever the reason for instituting anonyma vittnen, it is currently and will likely remain a controversial legal issue for Swedes in light of the tradeoff it necessarily implies: ensure criminal prosecution of violent criminals by cooperating other offenders and forcing defendants to face trial without complete knowledge of the witnesses testifying against them or risk ever increasing and escalating violent crime.[10] In the United States, for example, one could readily imagine a Sixth Amendment Confrontation Clause challenge to such a practice. In light of Sweden’s contemporary social and political issues ranging from immigration, law enforcement practices, and the rise of right-wing political ideologies, implementation of an anonymous witness system, already in tension with Sweden’s typical adversarial system, could easily risk becoming an exercise in prosecutorial overreaching.
Still, prosecutors and law enforcement authorities maintain that the use of anonymous witnesses is a logical step towards solving and combating violent crime throughout Sweden,[11] particularly where witnesses of gang and other organized crime violence fear retribution.[12] But, questions remain as to whether the use of an anonymous witness may in fact harm the Swedish criminal justice system more than it would help. The Sveriges Advokatsamfund (the Swedish Bar Association), has voiced steadfast resistance to adopting the crown witness system, stating that it could raise issues of witness’ informational credibility or questionable motives for cooperation.[13] Indeed, both the Swedish Bar Association and other legal experts in Sweden criticize the proposal on grounds that it raises questions about what exactly such a system would mean for Sweden’s rule of law.[14] Such experts note that the anonymous witness system, in which prosecutors can preemptively indicate what a crown witness’s sentence would be if the witness cooperated – effectively allowing the witness to choose whether or not to cooperate[15] – conflicts with Sweden’s existing procedure where criminal sentencing is based solely off the facts presented in a criminal proceeding and sentencing is standardized.[16] Ethical problems also arise as to competing interests with a prosecutorial desire to prosecute and deter violent crime through witness cooperation and a defendant’s rights – leading defense attorneys to question whether, if a crown witness is used, they will have enough information to represent their clients effectively at trial. Lastly, the interests of victims and their relatives may be seen to be insufficiently considered when standard sentences for crown witnesses are subject to unexpected reduction.[17] If implemented, defendants would be effectively precluded from questioning the reliability of an anonymous witness or rebutting and/or impeaching the witness’ testimony with facts or alternative theories since such tactics are often witness-specific. Either way, Sweden is struggling to balance the procedural adversarial system interests with its current social and political reality.
Whether the Inquiry’s report proposing a crown witness system of anonymous testimony effectively addresses the problem of growing gang violence and organized crime is yet to be seen. The Inquiry’s final report is expected in April of 2024 and will enter into force in April of 2025. Until then, however, the debate surrounding this criminal procedural instrument is sure to grow and spark questions of whether other aspects of the Swedish criminal law require contemporary creative updates, particularly as the legal implications of this procedural exception come to light.
Ceilidh Meagher is a staff member of Fordham International Law Journal Volume XLVII.
[1]See Sune Engel Rasmussen, How Peaceful Sweden Became Europe’s Gun-Murder Capital, Wall St. J. (May 22, 2023), https://www.wsj.com/articles/how-peaceful-sweden-became-europes-gun-murder-capital-a5b500a7 (Noting that Sweden’s violent crime rate has skyrocketed in the wake of increased participation in gang activities, particularly in light of a perpetrator’s low risk of apprehension by authorities and facing legal consequences. Stating also that Stockholm’s gun-murder rate was approximately 30 times higher per capita than London’s, and that 75-80% of deadly shootings in Sweden remain unsolved).
[2] See, Press Release, Morgan Johansson for the Government Offices of Sweden, A year of the 34-point programme – efforts to combat gang crime are well under way (Oct. 30, 2020), https://www.government.se/contentassets/1027f7aaf03e4cc98aaac21e88d5d4c0/morgan-johansson-articles-2014-2022.pdf.
[3] See Anna Wergens, The Role and Standing of the Victim in the Face of Criminal Procedure Sweden, 73 Revue Internationale de Droit Penal (2002), 259, 264. (Stating that “[t]he issue of anonymous witnesses has been under discussion for some years in Sweden now…[t]he opinion of the 1990 Committee on Violence was that the scope of the problem was not serious enough to justify measures impeding basic principles of openness and transparency.” Wergens then notes, that even if the current criminal activity status in Sweden did not demand such a procedural instrument, “it was established that the use of anonymous witnesses would not regularly be against the European Convention. However, the matter was left open and no proposals were made”).
[4] See Statens Offentliga Utreningar [SOU] 2022:141, Kommittédirektiv Anonyma Vittnen (Swed.).
[5] Stefan Löfven, Prime Minister of Sweden, Statement of Government Policy 2019 at the Riksdag (Sept. 10, 2019), https://www.government.se/speeches/20192/09/statement-of-government-policy-10-september-2019/. (“A crown witness system will be investigated.”); Ulf Kristersson, Prime Minister of Sweden, Statement of Government Policy 2022 at the Riksdag (Oct. 18, 2022), https://www.government.se/speeches/2022/10/statement-of-government-policy/ (“The Government will now launch the largest offensive against organized crime in Swedish history…Anonymous witnesses, exclusion orders, secret coercive measures and temporary stop and search zones will be introduced….”).
[6] See Laura Ervo, Plea Bargaining Changing Nordic Criminal Procedure: Sweden and Finland as Examples, in Rethinking Nordic Courts 255, 259 (Laura Ervo, Pia Letto-Vanamo, Anna Nylund eds., 2021). Noting that criminal punishment and sentencing mitigation is not currently included in Swedish equitable grounds.
[7] Id. at 255. Noting that although “[m]any Nordic and Baltic countries have recently adopted a plea-bargaining system [,]…In Sweden, plea bargaining is not possible, but recently a discussion on crown witnesses, as one variant of plea bargaining, has arisen.” Professor Ervo rightly notes the divergence of Sweden’s parliament from adopting a criminal procedural tactic when traditionally, the Nordic countries have generally followed each other’s leads in adopting legislation, particularly criminal legislation, in a “collaborative East-Nordic legislative culture.” Id. at 259.
[8] Id. at 259. Ervo describes Sweden’s historical rejection of plea bargaining as a prosecutorial tool, explaining that “…the Swedish legislature rejected the plea bargaining without any deeper discussion” and “it was simply stated that it did not fit into the Swedish system[]” but that even though other Nordic nations had adopted such the procedural instrument, after Sweden’s December 2020 implementation of the 34-Point Programme, “in Sweden only the system of crown witnesses is likely to be introduced.” Id. at 255.
[9] See Press Release, Swedish Ministry of Justice, Inquiry Proposes New Act On Anonymous Witness Testimony (Nov. 2, 2023), https://government.se/press-releases/2023/11/inquiry-proposes-new-act-on-anonymous-witness-testimony/.
[10] Id. In the Swedish Ministry of Justice’s press release, Minister for Justice Gunnar Strömmer stated, “We must break the culture of silence. Sweden is one of the few countries in Europe that is unable to guarantee witnesses facing the risk of threats and reprisals of anonymity during the legal process. Countries such as Denmark, Finland and Norway have systems of anonymous witness testimony in place – now it’s time to introduce one in Sweden.” Minister Strömmer continued by describing the proposal as “well-reasoned” and noted it included “robust procedural safeguards.” The Crown Witness Inquiry proposed a system by which witnesses may testify in criminal cases anonymously during both the preliminary investigation of a crime and the trial itself, where there is a significant risk that witnesses or their relatives would be subjected to severe repercussions if they testified in the case. This system would run in contravention to the Swedish legal requirement of compelling witnesses to give evidence and testify at proceedings without anonymity. According to the Swedish Prosecution Authority (Åklagarmyndigheten), there is a general obligation to give evidence to the effect that private individuals are not at liberty to decide whether or not they wish to testify (subject to minor and infrequent exceptions for close relations of suspects being tried).
[11] Friderich Becker, Controversy in Sweden Over the Crown Witness Rule, Morning Sweden (Oct. 27, 2023), https://morningsweden.se/news-qckvrklt7v1lr8s7lhlk/. Becker cites Prosecutor Daniel Jonsson describing Swedish prosecutors as having “limited practice when it comes to crown witnesses in murder cases” and having to balance the interests of the families of victims, where prosecutors often regard the maximum 30% sentence reduction as insufficient to obtain and ensure complete cooperation of a crown witness, but where victims’ relatives feel that such a maximum reduction is unacceptable in light of the crown witness’s own criminal liability and past acts.
[12] Radio Sweden, Should Witnesses Be Allowed To Testify Anonymously?, Sverige Radio (Nov. 24, 2017), https://sverigesradio.se/artikel/6828278. Describing the 2017 gun-murder of a witness in an upcoming organized crime trial in broad daylight in a peaceful Stockholm suburban neighborhood as what would historically be described as an aberration but is now emblematic of the violent firearms crime epidemic in Sweden.
[13] Id. The Swedish Bar association posits whether crown witnesses may lack the requisite meaningful information to make a substantial difference in a prosecutorial effort, and whether, by testifying anonymously, Sweden would be allowing a crown witnesses’ evidence to forego the traditional adversarial scrutiny in a Swedish trial.
[14] Id.
[15] Radio Sweden, Legal Experts Object to Crown Witness Proposal, Sverige Radio (Feb. 23, 2022), https://sverigesradio.se/artikel/legal-experts-object-to-crown-witness-proposal . Legal experts opine that even if such a system were adopted, the proposed system does not include standard categorical reductions that can be expected to apply to sentences of particular types of crimes. This can also be seen to raise the issue of prosecutorial discretion in a country where fairness across the board is paramount both socially, politically, and historically.
[16] Stefan Wahlberg, Jag sa neg – anonyma vittnen riskerar att få motsatt effect, Dagens Juridik (Oct. 29, 2021), https://www.dagensjuridik.se/nyheter/jag-sa-nej-anonyma-vittnen-riskerar-att-fa-motsatt-effekt/. Stefan Johansson, a Supreme Court judge, casts doubt on the probative value of anonymous witnesses, arguing they should be used only in exceptional circumstances, and questions whether their use for only marginal evidentiary value is “worth turning such important principles [that a person accused of a crime also has the right to access the information that is the basis of the accusation in order to respond to it and defend themselves] upside down in order to be able to use [anonymous witnesses] in very few cases.”
[17] Id. Beyond the separate victim and defendant considerations, the intersectionality of victims and testifying crown witnesses poses an even greater ethical question: why should a criminal defendant who cooperates with authorities be entitled to more protection than a victim who is compelled to testify without the shield of anonymity?
This is a student blog post and in no way represents the views of the Fordham International Law Journal.