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Sweden: Court Rules Legislation Must Be Made Available Free of Charge

(Mar. 29, 2017) On March 15, 2017, the Swedish Supreme Court, in an advisory decision, explained that laws and regulations must be available free of charge to the public in order for a conviction or a fine imposed under their relevant provisions to be lawful. (Press Release Högsta domstolen,  Författningar måste vara tillgängliga i läsbar form och gratis [Legislation Must Be Available in Readable Format and Free of Charge] (Mar. 15, 2017), Supreme Court website; Supreme Court Decision Ö 4833-16, Mar. 15, 2017, HÖGSTA DOMSTOLEN (in Swedish).)


Two youths, both 16 years of age, had brought green, class 3B lasers to school and were fined by the Attunda District Court for violating the Radiation Protection Act, which prohibits possession of that type of laser. (Supreme Court Decision Ö 4833-16 at 2; 8a § Strålskyddslagen [Radiation Protection Act] (SFS 1988:220) NOTISUM.) The regulation that defines and lists which lasers are illegal to possess was only available in the publication “Svensk standard SS EN 60825-1, utgåva 4, 2007” [Swedish Standard SS EN 60825-1, Edition 4, 2007].  This publication includes a list maintained by Svensk Elstandard (Swedish Electric Standard) and available only upon payment of SEK1091 (about US$124) to Svensk Elstandard, a non-profit organization responsible for electricity-related standards in Sweden  (Supreme Court Decision Ö 4833-16, at 3; About SEK, SVENSK ELSTANDARD (last visited Mar. 27, 2017).)

The Court’s Finding

The Supreme Court held that requiring the abovementioned process of access to the law violates the principle of legality (legalitetsprincipen) (nullum crimen sine lege), a fundamental principle of Swedish law that requires that for a person to be convicted of a crime there must be a law against said action.  (Supreme Court Decision Ö 4833-16, at 4-5; 2 ch. 10 § 1 para Regeringsformen [Instrument of Government] [Constitution], NOTISUM.) In the case at hand, there was a law prohibiting class 3B lasers from being used, but lasers that belong to class 3B were only defined in a legal text deemed not readily available to the public because a written copy was only available through purchase. (Supreme Court Decision Ö 4833-16, at 3.)  There is an international classification system for lasers for safety purposes, “based on their potential for causing injury to humans’ eyes and skin”; class 3B  and class 4 of the four main classes of visible-beam consumer lasers are deemed hazardous to eye exposure.  (Laser Classes, Laser Safety Facts website (last visited Mar. 27, 2017).)

The fact that information on the content of the regulation could be accessed by calling the Svensk Elstandard or the Swedish Radiation Safety Authority (Strålskyddsmyndigheten) was not considered by the Court to be a sufficiently readily available means of access to the definitions to meet the standards of the principle of legality. (Supreme Court Decision Ö 4833-16 at 5.)  Leave for appeal to the Appeals Court was therefore granted to the defendants, with the instruction that the Court of Appeal render a decision consistent with the Supreme Court Decision.  (Id.)