'Civil rights groups in Sweden can fight this government's repressive proposals'
From deportation without trial and stripping away citizenships to stop and search and a begging ban: Sweden's new government programme is full of legally questionable, illiberal measures. John Stauffer, Legal Director at Civil Rights Defenders, tells The Local how his group plans to put up a fight.
For Stauffer, who has fought against rights infringements both in Sweden and further afield, there is no question that the political programme outlined in the four-party Tidö Agreement takes Sweden in an illiberal direction.
"It's not aimed at strengthening the protection of our human rights. It's not meant to strengthen the rule of law. It's not meant to strengthen democracy either," he tells The Local. "On the contrary, the agreement includes measures that are in clear conflict with the human rights norms that we then are bound by. It undermines the rule of law, and in the end, it undermines democracy."
For this reason, he believes Sweden's current government can be defined as "repressive".
"It is focused on harsher sentencing measures, undermining the rule of law, and making it more difficult to be a refugee or asylum seeker."
One of the things he says he finds most problematic is that many of the provisions in the agreement target people who are already vulnerable and disproportionately target their rights.
The proposed begging ban targets "poor people that see no other possibility to get an income", the proposed stop and search zones and increased surveillance will disproportionately affect the areas of Sweden's big cities where racial, ethnic, and religious minorities live, while other policies target refugees fleeing persecution.
He also criticises the agreement for what he calls its "penal populism", which is when governments bring in criminal penalties because of their popularity among voters rather than their effectiveness.
"There is ample evidence that harsher penalties do not decrease crime, but it's being pushed as the primary way to address the problem anyway."
Perhaps the most worrying thing, though, from his point of view, is the fact that countries in Europe, such as Poland and Hungary, where democracy as a system is now under threat, all started their downward spiral with very similar packages of laws targeting minorities.
"We have worked in countries where democracy has been undermined for a long, long time, and we can clearly see a pattern when this happens, and where rights - human rights - are undermined one at a time," Stauffer says.
"It's a slow process, but it's a clear, slippery slope which leads to less democracy, less rule of law, and less respect for human rights, and the policy changes that we now see in this agreement are some of the very same policy changes that we've seen in other countries: like Poland, like Hungary."
What proposals in the agreement threaten rights and what can civil rights groups do?
Civil Rights Defenders was founded in 1982 as the Swedish Helsinki Committee, tasked with monitoring and enforcing the human rights portion of the Helsinki Accords, and the organisation played a large role in the former Yugoslavia during the conflicts there in the 1990s.
Within Sweden, recent campaigns have included reporting the anti-Islam extremist Rasmus Paludan to the police, fighting for Sami and Roma rights, criticising plans to increase wiretapping of phones, and seeking to protect the right to a fair trial in Sweden.
Stauffer believes that groups like Civil Rights Defenders now have a lot of work to do blocking or weakening some of the new government's proposals – using Swedish, European and International courts, Parliamentary Ombudsmen, the Chancellor of Justice, and UN mechanisms, or campaigning in the media.
"Civil Rights Defenders, other civil society organisations, and I think also the Swedish Bar Association, will keep a very close eye on what comes out of this agreement in terms of concrete proposals for new legislation," he says, "because there are a number of things in here that are problematic from a rule of law perspective."
So far the proposals that leap out at him as vulnerable to legal challenge include the begging ban, stop-and-search zones, easier surveillance, the proposal to strip citizenship from some criminals, the proposal to deport people without trial for suspected gang membership or ill-defined 'poor behaviour', proposals to strip newly arrived immigrants of many benefits, and proposals to detain asylum seekers while their asylum applications are processed.
The begging ban
Stauffer argues that begging is "not a desired way of living for anyone", and that only the most desperate are driven to it. "I think, from an ethical point of view, to deprive someone of that possibility is not right," he argues.
But he believes that there is ample opportunity to challenge a national ban.
'There are several decisions from different courts, for example, that say it is part of freedom of expression to ask for help.
There is also a recent case from the European Court of Human Rights, where they found a similar ban in Switzerland to be in violation of the right to privacy, that the right to privacy includes the right to ask for help."
"There is ample case law from different countries suggesting that such a ban is not in line with human rights standards and should be challenged."
Hiring prison places overseas
The proposal to hire prison places overseas and send convicted criminals to serve their sentences abroad also raises serious problems, Stauffer argues.
"Even people that have committed crimes and are in prison have human rights, and of course, those human rights need to be respected."
He said it was too early to tell whether such a policy could be challenged in Swedish or international courts, but he outlined some of the issues that might be grounds for challenge.
"If you take them away from their normal context, they will not be able to have contact with their family members and that's problematic from a human rights perspective. And, of course, the children would not be able to meet their parents, so, in some ways, this proposal lacks a child perspective."
Stripping residency-based benefits from recently arrived immigrants
The agreement proposes withholding many benefits from immigrants to Sweden until they have qualified for them by working and paying taxes, a measure designed at reducing the incentive to come to the country and claim asylum.
Stauffer argues that this measure will significantly worsen poverty in the country.
"What this will do, is create different groups in society which have different rights," he believes. "You will, on the one hand, have citizens, who will have a certain set of rights, and then you will have asylum seekers who will have another set of lesser rights, so it creates a hierarchy in society that is problematic."
One way civil rights groups and public interest law firms could challenge this would be to analyse the final proposed law to see if it is discriminatory and then challenge it under Sweden's Discrimination Act, he suggests.
Stripping citizenship from dual citizens who commit serious crimes
According to Stauffer, it is currently against the Swedish constitution to take away someone's Swedish citizenship once it has been granted.
"That would require a change in the Constitution of Sweden," he says of the proposal. "Sweden also has an obligation to ensure that people do not end up stateless."
It is, however, possible to change the Swedish constitution. It requires two majority votes, one either side of a general election, but Stauffer said he hoped that the government would not be able to manage this.
"There are other parties who would be opposed to that, and maybe some parliamentarians that are part of the government, so it might not be as easy to do," he predicts.
He said it was possible that the government might put together a bill containing several changes to the constitution, combining proposals, for instance, to create a constitutional right to abortion, with proposals to allow the removal of people's citizenship.
Deporting people not sentenced of any crime
The proposals to deport foreign citizens who are either suspected of being gang members or who show "inadequate moral behaviour" without them being found guilty of a crime in court, is also, Stauffer asserts, "a huge problem".
"That's devastating in a way to the principle of the rule of law and the presumption of innocence: that you should be seen as innocent until you've been proven guilty by a court, he says. "If you're extradited without having been tried by a court, that's hugely problematic."
He says that if this became law, Civil Rights Defenders would definitely try to challenge it in court, as would other civil rights groups.
What was particularly worrying about the suggestion that people could be deported for "inadequate moral behaviour", he continued, was how vague the language of the proposal was.
"It's very unclear what's included in this, it's kind of open-ended, if you look at the way it's formulated in the agreement," he said.
"What's really expected of people and when can they possibly then be extradited? When you are not Swedish enough, maybe, to be here?"
He said that he expected the Council on Legislation, and other bodies, to seek to give clarity to who might be covered by the proposal before it could become law.
"If it's very precise, then of course, it's less problematic than if it's open ended, but I'm thinking that they want to have it a bit unclear. That's the whole purpose of it."
Detaining asylum seekers in processing centres and transit centres
The Tidö Agreement calls for an investigation into the possibilities for holding asylum seekers while their cases are being decided, and also calls for the investigator to look at where centres could be located, indicating that the new government wants to look at hosting them overseas.
"I think that will definitely look at the solutions that the UK and Denmark have decided on to send people to other countries," Stauffer predicts. "But in those cases, that has not been possible to implement in practice. The European Court of Human Rights has challenged this and stopped planes from taking off. They've intervened due to the risk of irreversible harm to asylum seekers."
Without knowing what concrete proposals the new government plans to make, he said, it is hard to judge the extent to which they violate human rights standards, and to what extent they can be challenged in the courts.
"Any arrangement with transit centres needs to be in line with with international human rights standards and ensure the wellbeing and human rights of asylum seekers, and that asylum procedures are adhered to," he said.
Even if the government managed to meet this threshold, the idea that people should be deprived of their liberty while awaiting a decision, he said, represented "a big shift in how we treat asylum seekers".
Banner ad
What will happen over the next four years?
Over the next four years, Stauffer expects the proposals to be altered, refined, and perhaps made less problematic as they move through the legislative process and through parliament, and even as they are applied, if the proposals become law.
He also expects civil rights groups such as his to advocate against the more extreme measures as the laws are being debated, and then to challenge them in the courts.
Even if the overwhelming majority of the proposals end up being blocked, however, he argues that the agreement sends such strong signals to society and to vulnerable and targeted groups that it will have already had a negative impact.
It remains to be seen the extent to which the opposition parties will be able to, or even want to, block some of the more far-going measures, he says, given that the Social Democrats also campaigned during the election campaign for stricter migration and tougher sentencing.
"What we saw during the election campaign is that the Social Democrats were pushing many similar policy changes, so I think it's true that Social Democrats will maybe not block them," he said. "What they could do is maybe push for the new legislation to become less extreme and a bit less problematic."
Comments
See Also
For Stauffer, who has fought against rights infringements both in Sweden and further afield, there is no question that the political programme outlined in the four-party Tidö Agreement takes Sweden in an illiberal direction.
"It's not aimed at strengthening the protection of our human rights. It's not meant to strengthen the rule of law. It's not meant to strengthen democracy either," he tells The Local. "On the contrary, the agreement includes measures that are in clear conflict with the human rights norms that we then are bound by. It undermines the rule of law, and in the end, it undermines democracy."
For this reason, he believes Sweden's current government can be defined as "repressive".
"It is focused on harsher sentencing measures, undermining the rule of law, and making it more difficult to be a refugee or asylum seeker."
One of the things he says he finds most problematic is that many of the provisions in the agreement target people who are already vulnerable and disproportionately target their rights.
The proposed begging ban targets "poor people that see no other possibility to get an income", the proposed stop and search zones and increased surveillance will disproportionately affect the areas of Sweden's big cities where racial, ethnic, and religious minorities live, while other policies target refugees fleeing persecution.
He also criticises the agreement for what he calls its "penal populism", which is when governments bring in criminal penalties because of their popularity among voters rather than their effectiveness.
"There is ample evidence that harsher penalties do not decrease crime, but it's being pushed as the primary way to address the problem anyway."
Perhaps the most worrying thing, though, from his point of view, is the fact that countries in Europe, such as Poland and Hungary, where democracy as a system is now under threat, all started their downward spiral with very similar packages of laws targeting minorities.
"We have worked in countries where democracy has been undermined for a long, long time, and we can clearly see a pattern when this happens, and where rights - human rights - are undermined one at a time," Stauffer says.
"It's a slow process, but it's a clear, slippery slope which leads to less democracy, less rule of law, and less respect for human rights, and the policy changes that we now see in this agreement are some of the very same policy changes that we've seen in other countries: like Poland, like Hungary."
What proposals in the agreement threaten rights and what can civil rights groups do?
Civil Rights Defenders was founded in 1982 as the Swedish Helsinki Committee, tasked with monitoring and enforcing the human rights portion of the Helsinki Accords, and the organisation played a large role in the former Yugoslavia during the conflicts there in the 1990s.
Within Sweden, recent campaigns have included reporting the anti-Islam extremist Rasmus Paludan to the police, fighting for Sami and Roma rights, criticising plans to increase wiretapping of phones, and seeking to protect the right to a fair trial in Sweden.
Stauffer believes that groups like Civil Rights Defenders now have a lot of work to do blocking or weakening some of the new government's proposals – using Swedish, European and International courts, Parliamentary Ombudsmen, the Chancellor of Justice, and UN mechanisms, or campaigning in the media.
"Civil Rights Defenders, other civil society organisations, and I think also the Swedish Bar Association, will keep a very close eye on what comes out of this agreement in terms of concrete proposals for new legislation," he says, "because there are a number of things in here that are problematic from a rule of law perspective."
So far the proposals that leap out at him as vulnerable to legal challenge include the begging ban, stop-and-search zones, easier surveillance, the proposal to strip citizenship from some criminals, the proposal to deport people without trial for suspected gang membership or ill-defined 'poor behaviour', proposals to strip newly arrived immigrants of many benefits, and proposals to detain asylum seekers while their asylum applications are processed.
The begging ban
Stauffer argues that begging is "not a desired way of living for anyone", and that only the most desperate are driven to it. "I think, from an ethical point of view, to deprive someone of that possibility is not right," he argues.
But he believes that there is ample opportunity to challenge a national ban.
'There are several decisions from different courts, for example, that say it is part of freedom of expression to ask for help.
There is also a recent case from the European Court of Human Rights, where they found a similar ban in Switzerland to be in violation of the right to privacy, that the right to privacy includes the right to ask for help."
"There is ample case law from different countries suggesting that such a ban is not in line with human rights standards and should be challenged."
Hiring prison places overseas
The proposal to hire prison places overseas and send convicted criminals to serve their sentences abroad also raises serious problems, Stauffer argues.
He said it was too early to tell whether such a policy could be challenged in Swedish or international courts, but he outlined some of the issues that might be grounds for challenge.
"If you take them away from their normal context, they will not be able to have contact with their family members and that's problematic from a human rights perspective. And, of course, the children would not be able to meet their parents, so, in some ways, this proposal lacks a child perspective."
Stripping residency-based benefits from recently arrived immigrants
The agreement proposes withholding many benefits from immigrants to Sweden until they have qualified for them by working and paying taxes, a measure designed at reducing the incentive to come to the country and claim asylum.
Stauffer argues that this measure will significantly worsen poverty in the country.
One way civil rights groups and public interest law firms could challenge this would be to analyse the final proposed law to see if it is discriminatory and then challenge it under Sweden's Discrimination Act, he suggests.
According to Stauffer, it is currently against the Swedish constitution to take away someone's Swedish citizenship once it has been granted.
"That would require a change in the Constitution of Sweden," he says of the proposal. "Sweden also has an obligation to ensure that people do not end up stateless."
It is, however, possible to change the Swedish constitution. It requires two majority votes, one either side of a general election, but Stauffer said he hoped that the government would not be able to manage this.
He said it was possible that the government might put together a bill containing several changes to the constitution, combining proposals, for instance, to create a constitutional right to abortion, with proposals to allow the removal of people's citizenship.
The proposals to deport foreign citizens who are either suspected of being gang members or who show "inadequate moral behaviour" without them being found guilty of a crime in court, is also, Stauffer asserts, "a huge problem".
He says that if this became law, Civil Rights Defenders would definitely try to challenge it in court, as would other civil rights groups.
What was particularly worrying about the suggestion that people could be deported for "inadequate moral behaviour", he continued, was how vague the language of the proposal was.
"It's very unclear what's included in this, it's kind of open-ended, if you look at the way it's formulated in the agreement," he said.
"What's really expected of people and when can they possibly then be extradited? When you are not Swedish enough, maybe, to be here?"
He said that he expected the Council on Legislation, and other bodies, to seek to give clarity to who might be covered by the proposal before it could become law.
"If it's very precise, then of course, it's less problematic than if it's open ended, but I'm thinking that they want to have it a bit unclear. That's the whole purpose of it."
Detaining asylum seekers in processing centres and transit centres
The Tidö Agreement calls for an investigation into the possibilities for holding asylum seekers while their cases are being decided, and also calls for the investigator to look at where centres could be located, indicating that the new government wants to look at hosting them overseas.
"I think that will definitely look at the solutions that the UK and Denmark have decided on to send people to other countries," Stauffer predicts. "But in those cases, that has not been possible to implement in practice. The European Court of Human Rights has challenged this and stopped planes from taking off. They've intervened due to the risk of irreversible harm to asylum seekers."
Without knowing what concrete proposals the new government plans to make, he said, it is hard to judge the extent to which they violate human rights standards, and to what extent they can be challenged in the courts.
"Any arrangement with transit centres needs to be in line with with international human rights standards and ensure the wellbeing and human rights of asylum seekers, and that asylum procedures are adhered to," he said.
Even if the government managed to meet this threshold, the idea that people should be deprived of their liberty while awaiting a decision, he said, represented "a big shift in how we treat asylum seekers".
| Banner ad |
Over the next four years, Stauffer expects the proposals to be altered, refined, and perhaps made less problematic as they move through the legislative process and through parliament, and even as they are applied, if the proposals become law.
He also expects civil rights groups such as his to advocate against the more extreme measures as the laws are being debated, and then to challenge them in the courts.
Even if the overwhelming majority of the proposals end up being blocked, however, he argues that the agreement sends such strong signals to society and to vulnerable and targeted groups that it will have already had a negative impact.
It remains to be seen the extent to which the opposition parties will be able to, or even want to, block some of the more far-going measures, he says, given that the Social Democrats also campaigned during the election campaign for stricter migration and tougher sentencing.
"What we saw during the election campaign is that the Social Democrats were pushing many similar policy changes, so I think it's true that Social Democrats will maybe not block them," he said. "What they could do is maybe push for the new legislation to become less extreme and a bit less problematic."
Join the conversation in our comments section below. Share your own views and experience and if you have a question or suggestion for our journalists then email us at [email protected].
Please keep comments civil, constructive and on topic – and make sure to read our terms of use before getting involved.
Please log in here to leave a comment.