Research project Does one size not fit all?
Some thoughts on the different systematic approaches on how to administer applications for exoneration in Sweden, Norway and Denmark.
The Scandinavian countries (Denmark, Norway and Sweden) pay great respect the rule of law and have put several safeguards in place, guaranteeing a high level of legal certainty and minimising the risk of wrongful convictions. The respect for the rule of law and the legal safeguards are visible in some of the core features of the justice system in the Scandinavian countries. No Scandinavian country allows plea bargain, they offer a rather extensive possibility to appeal a guilty verdict to the appeals court and the public defence counsel is appointed at an early stage in the pre-trial investigation and successively receives information from the prosecutor and the costs for the public defence counsel is are covered by State funds. Other signs of the respect for the rule of law are that the prosecutor should only indict a person if there are sufficient reasons to believe that he or she committed the crime and that the assessment is that an indictment will result in a guilty verdict. Further, the prosecutor has the burden of proof and a conviction requires that the evidence prove beyond reasonable doubt that the defendant committed the crime.
Although these legal safeguards are put in place, the Scandinavian countries experience cases where someone claims that he or she was wrongfully convicted. Therefore, this project further looks into questions such as: How is a claim of wrongful conviction handled and administered in the Scandinavian countries? How is the procedure for an application for exoneration designed in the Scandinavian countries? What are the reasons behind the current way of administering applications for exoneration in Denmark, Norway and Sweden?
Project description
The working title for the project is: ”Does one size not fit all? Some thoughts on the different systematic approaches on how to administer applications for exoneration in Sweden, Norway and Denmark”. The main purpose of this project is to review and analyse how and why Denmark, Norway and Sweden administers and handles applications for exoneration in criminal cases differently in their respective jurisdiction. The project includes a rule of law analysis, focusing on the challenges with the three different model used for administering an application for exoneration.
It should be noted that exoneration in all jurisdictions is an extraordinary legal remedy, meaning that it can only be invoked if a court has pronounced a legally binding judgment. Thus, in the Scandinavian jurisdictions, exoneration is relevant only when the “ordinary” legal remedies – i.e. the possibility to appeal – have been exhausted. In all jurisdictions, the scope for exoneration is extremely narrow. The reason being both pragmatic and reasonable: The outset must be that it is crucial that a judgment in a criminal law case is correct from the beginning and that a legally binding judgment must – from the perspective of material fairness – not be changed. Otherwise, the public would lose trust in the reliability of judgments pronounced by the courts. However, in order for the criminal justice system to pay respect for the rule of law and to address cases of wrongful convictions, the criminal justice system must provide legal procedures for correcting wrongful convictions, thereby ensuring a possibility to review the case anew. Thus, the procedure for exoneration serves an important role in guaranteeing a high level of rule of law, while also providing a safety valve for those rare cases that went wrong from the beginning. The way a country administers applications for exoneration can thus increase the trust in the criminal law system amongst the general public.
As already mentioned, the procedure and administration for an application for exoneration is different in Denmark, Norway and Sweden. In sum, the differences can be described as the following. In Sweden, an application for exoneration is handled exclusively within the court system. This raises some challenges, e.g., since it can be perceived as the court system is reviewing itself and since it is difficult to further scrutinise how Swedish courts actually handled applications for exoneration: no official statistics is for example offered. Thus a model such as the Swedish one, is challenging when it comes to the matter of transparency. In Norway, the application for exoneration is administered exclusively by a fully independent review committee. The Committee also offers annual official statistics, e.g., on the number of applications and the approval rate. Thus, the Norwegian system is transparent. However, an independent review committee may raise constitutional concerns questions regarding, e.g., the division of power and could be viewed as introducing a higher instance than the Supreme Court. In Denmark, applications for exoneration is handled within the court system since they are administered by a particular institution within the court system. It is generally viewed as a special court rather than a part of the ordinary Danish court system. Yet, this special court shares its secretariat with the Danish Supreme Court, which for instance could raise questions concerning its independence. Another challenge is that the Danish special court does not exclusively administer applications for exoneration.
The characteristics of the Swedish, Norwegian and Danish way of administrating applications for exoneration summed up here, will be scrutinised further in this project and the differences between these three Scandinavian countries will be analysed closely. It should be stressed that these three jurisdictions are used in the project as examples on how applications for exoneration is administered in different jurisdictions and thereby serving as a point of departure for a discussion and an analysis. Thereby, the focus on these three Scandinavian jurisdictions could be viewed as offering an illustration of how the complicated matter of administering applications for exoneration and what strengths and challenges that can be identified with different ways of administering these applications.