Domstolsprövning av förvaltningsbeslut
Svensk, dansk och österrikisk rätt i komparativ belysning
Datum för disputation: fredagen den 11 december 2020
Fakultetsopponent: docent Patricia Jonasson, Södertörns högskola
Ämne: offentlig rätt
This thesis contains a comparative study of the systems of judicial review of administrative decisions in Swedish, Danish, and Austrian law. The main aim of the study is to explore how the three legal systems balance certain interests and functions that are related to the phenomenon of judicial review of administrative acts: on the one hand, the principle of effective judicial protection as well as the need of an independent judicial control of the administration, and, on the other hand, the constitutional and institutional capacity of the administration as well as the constitutional separation of powers. This is done by an analysis of legal rules and principles governing when a judicial review of administrative acts is admissible as well as of the scope, intensity, and result of the review itself. The Swedish administrative court procedure has often been described as ”different”, both in terms of the possibilities to get a judicial review of administrative acts as well as the scope of the judicial review itself. In addition to the overarching aim of the study, it is a specific purpose of the study to examine to what extent the Swedish system (in relation to the Danish and the Austrian system) is different and how these (proposed) differences (and similarities) can be explained.
In addition to an introduction (chapter 1), the thesis contains five main chapters (chapters 2-6). Chapter 2 examines the historical development of the systems of judicial control of the administration in the three countries. Chapter 3 gives an overall presentation of the three administrative and judicial systems. In chapter 4, the legal rules and principles for admissibility are analysed. Chapter 5 analyses the scope, intensity, and result of the judicial review. Chapter 6 contains a summary and discussion of the main results.
Taking Care of Business
A study of the governing of care choice systems in Swedish home care
Datum för disputation: fredagen den 9 oktober 2020
Fakultetsopponent: Docent Kenneth Veitch, Sussex Law School, England
This study provides an account of the introduction of care choice systems into the provision of home care by Swedish municipalities. Care choice systems in elder care are at the centre of a conflict about the broader principles of the welfare state. Studying them is thus a way of revealing the outlines of this conflict. In this thesis, I show how the introduction of care choice systems changes the nature of public administration, the strategies officials deploy, and the tools they use. This helps to deepen the understanding of how quasimarket reforms transform public administration at the municipal level, while providing insight into the legal strategies used by public authorities in governing welfare. The thesis also provides new insights into how parts of the Swedish model have evolved during the last decade.
Methodologically, the study is based on an in-depth empirical investigation of the roles ‘public law’ and ‘private law’ play in realizing and shaping new forms of governing. I pursue a ‘law in practice’ approach grounded in a Foucauldian methodology, combined with a theoretical discussion of the outcomes of the study. One central finding of the study is that quasi-marketization leads not to a simple deregulation of public sector services, but rather to a reconfiguration of the relationship between state and capital. This entails new ways of governing, such as contractualization and standardization, as well as a new role for public administration and bureaucracy. The legal strategies adopted by the municipalities are complex and, in general, aim at regulating the private providers through the contract almost as if they were part of the municipality, while at the same time treating the municipal provider as if it was a private company.
The introduction of care choice systems has created new and specific conflicts and contradictions in the
governing of home care for older persons. The municipal responsibility for the quality of elder care, the need
to ensure the system has political legitimacy, and a political will to support small businesses combine to produce a situation in which public spending on welfare is channelled into the support and monitoring of businesses within the sector. To an increasing extent, public officials who’s job it is to enforce regulations and monitor private actors end up ‘taking care of business’. Crucially, this leads to a situation in which lowquality services and fraudulent behaviour cannot properly be dealt with. It is clear that, despite the great amount of work that the public authorities put into constructing, supporting, and monitoring the quasi-market, many apparent problems still remain.
Straffansvar vid atypiska sinnestillstånd
Datum för disputation: fredagen den 25 september 2020
Fakultetsopponent: professor Monica Burman, Umeå universitet
This doctoral thesis examines the attribution of criminal responsibility in Swedish law in cases where the defendant committed an act during an atypical mental state, e.g. psychosis. In nearly all criminal justice systems, a severe mental disorder can activate special rules that excuse or exempt the defendant. Accountability, or the capacity to be responsible, is a fundamental requirement for criminal liability in modern criminal law. Thus, exceptional rules in cases where the defendant’s mental state results in the defendant lacking this capacity is a matter of fundamental fairness in a just society. The ideas behind this fundamental requirement, as well as the construction of rules of exception, vary among legal systems, but the general idea is rarely disputed.
However, Swedish criminal law adopts an alternative approach. In Sweden, all defendants are formally considered equal in terms of their capacity for criminal liability. Defendants who, due to a severe mental disorder, lacked the capacity to understand the nature of their actions or that what they were doing was wrong, are not considered legally insane or unaccountable. Instead, a mental disorder is primarily considered in connection with the choice of sanction. Swedish criminal law allows inpatient psychiatric treatment as a criminal sanction and prohibits imprisonment in cases where the defendant lacked the capacity to understand the nature of the act or to act in accordance with such an understanding. However, in order to arrive at the sanctioning stage, the court must conclude that the defendant is guilty of the crime charged. Mental health treatment and other protective measures ordered by the criminal court are thus dependent on the court finding that the defendant had the required mens rea for the crime.
With respect to the mens rea requirement in Swedish criminal law, this thesis addresses three central questions. The first two questions concern the construction and application of the mens rea requirement in cases of atypical mental states, and how these requirements are distinguished from the exceptional rules applicable at the sanctioning stage. The third question concerns the role of forensic psychiatric expert opinions in the evaluation of mens rea. Here, Swedish criminal law allows for mental health evidence, formally produced to assist in the choice of sanction, to be used freely by the courts in the assessment of criminal responsibility. The thesis explores these three questions using doctrinal legal analysis as well as an empirical analysis of a large selection of court verdicts and forensic psychiatric expert opinions.
The analysis shows that the assessment of mens rea in Swedish criminal law, although based on subjective standards, is clearly limited by a material and procedural framework for assessment that is based on the idea of a ‘normal’ rational person. As a result, the Swedish model, which can be compared to the ‘integrated’ (or ‘integrationist’) model or ‘mens rea’-model in some American states, leaves very little room for acquittals in cases of atypical mental states. Whether the assessment can result in acquittals depends to a large extent on whether the content of the defendant’s psychotic delusions can be explicated in a way that falls in line with the ‘normal’ rules of mens rea, justification and excuse. This in turn highlights the importance of how forensic experts describe the defendant’s understanding of reality. The possibility to integrate exceptional and ‘normal’ rules in criminal law is an attractive alternative from a non-discrimination perspective. However, an integrated model that severely limits the possibility of acquittals will fail to uphold the principle of guilt, which entails that a criminal sanction requires blameworthiness. In the Swedish criminal justice system, criminal law’s fundamental framework of rationality combined with the strong incentives for courts and forensic experts to arrive at verdicts that allow for protective measures, generate assessments of mens rea where defendants are neither formally nor substantively equal.
Access to Cross-Border Healthcare for Older Persons in the European Union
The Interplay between EU Law and Swedish Law
Datum för disputation: fredagen den 15 maj 2020
Fakultetsopponent: professor Ulla Neergaard, Köpenhamns universitet
This thesis deals with older persons on the move and their access to cross-border healthcare in the European Union. The number of persons crossing borders within the EU has increased exponentially in recent decades. Free movement has been at the core of the European integration project from its early days. Although it was originally intended to apply only to those who were economically active, the introduction of European Union citizenship changed this, making possible multiple forms of mobility. A clear example of this is retirement migration, rates of which have increased in recent years.
This thesis analyses access to cross-border healthcare for older persons in the context of EU as a social market economy.To this end, the thesis analyzes access to cross-border healthcare in three types of case: older persons moving permanently to another Member State, older persons seeking healthcare in another Member State and older persons staying temporarily in another Member State. Sweden is the case study to illustrate the interplay between EU law and national law.
The thesis provides a comprehensive discussion and analysis of the phenomenon of cross-border healthcare and highlights key challenges older persons face in accessing cross-border healthcare in the EU. The analysis reveals a complex picture, reflecting the interplay between the EU level and the national level, the tensions between economic and social integration and the role of different human rights discourses.