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Sweden: Legal Response to Covid-19

Sweden [se]

Titti Mattsson, Ana Nordberg, Martina Axmin

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 30 June 2022

General editors: Prof. Jeff King; Prof. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof. Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal


© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

Preferred Citation: T Mattsson, A Nordberg, M Axmin, ‘Sweden: Legal Response to Covid-19’, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e12.013.12

Except where the text indicates the contrary, the law is as it stood on: 14 January 2021

I.  Constitutional Framework

1.  Sweden is a parliamentary constitutional monarchy based on popular sovereignty and the rule of law.

2.  The Swedish Constitution is comprised of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act, and the Fundamental Law on Freedom of Expression. The Instrument of Government provides for the organization of state power based on the principle of the separation of powers. Constitutional amendments can be passed through simple majority votes with identical wording in two consecutive Parliaments (ie separated by a general election). As a member of the European Union (EU), Sweden is bound by the EU Charter of Fundamental Rights, as well as by other international human rights law instruments.

3.  Executive power is vested in the Government, headed by a Prime Minister selected from among members of Parliament without the participation of the Monarch. The parliamentary speaker (talmannen), after having consulted parliamentary parties, places the name of the new Prime Minister before Parliament. A government does not need the support of a parliamentary majority, as long as more than half of the members of Parliament do not vote against it.

4.  Legislative power is vested in the Parliament, a unicameral body comprised of 349 members elected under a system of proportional representation. The Parliament may delegate powers to the Government, which in turn may sub-delegate powers to various public authorities, to enact certain rules. Government-enacted norms prevail over public authorities’ norms.

5.  Although Sweden is a unitary State, there is a high degree of regional and local autonomy. According to the Instrument of Government, the 290 municipalities (kommuner) and the 21 regional health organizations (regioner) enjoy self-government, ie elected local authorities have a high level of decisional autonomy. However, law-making as well as judicature are entirely a matter for the national State. In the context of Covid-19, the competence to take action lies with the State. The regions exercise supervision of the implementation of the regulations issued on the basis of the temporary Covid-19 Act 2021, ensuring that they are complied with.

6.  This division of power makes health protection complex in Sweden. The rule-making power lies with the national State, which sets healthcare policy through legislation. The regions are responsible for funding and providing healthcare services to their populations. The municipalities are responsible for providing care on a less advanced level for the elderly and for disabled persons. The municipalities are also responsible for providing social services as well as education.

7.  The most important legislative framework concerning communicable diseases in Sweden is the Communicable Diseases Act 2004. On the 8 January 2021, the Parliament decided on a new temporary Covid-19 Act. The Act entered into force on the 10 January 2021 and expires at the end of September 2021. Measures for the prevention of the spread of communicable diseases in various areas (explored in Part IV below) are taken at State level.

8.  Sweden’s constitutional order does not allow for the declaration of a state of emergency. Public health emergencies in various areas are therefore regulated entirely by ordinary law, which allocates responsibilities.

9.  Response to the pandemic has not changed the basic constitutional structure of the Swedish State.

II.  Applicable Legal Framework

A.  Constitutional and international law

10.  No state of emergency or state of exception, whether local or national, has been declared in Sweden, as the country’s constitutional order does not allow for the declaration of either in the case of civil emergencies. Fundamental civil rights and freedoms can only be suspended in the case of war (or risk of war).1 Public health emergencies are therefore regulated entirely by ordinary law.

11.  Sweden is a member of the EU and is as such bound by the EU Charter of Fundamental Rights. It has also fully incorporated into its constitutional order the European Convention on Human Rights (ECHR),2 including several of its Protocols.3 In accordance with the Instrument of Government, laws and regulations containing provisions that conflict with the ECHR cannot be enacted.4 As such, a high standard of respect for human rights, including international law commitments, has played an important role in the Swedish State’s response to the pandemic. However, there is no formal right to petition a court to repeal enacted legislation (see Part III.C, paragraph 48 below).

12.  The Swedish State has not expressly derogated from any provision of the international conventions it has ratified. Restrictions due to public health measures are either regulated and supported by previous public health legislation, namely the Swedish Communicable Diseases Act or are the result of time-limited legislative measures. The terms ‘legislation’ and ‘legislative measures and documents’ are used here in a broad sense, referring to both laws and regulations enacted in the form of, for instance, Parliament acts, government decrees, and local or municipal ordinances. Restrictions on individual rights and freedoms have been kept to a minimum, in observance of the principles of necessity and proportionality and thus respect the principle of the rule of law. The measures have introduced very few restrictions to fundamental rights, and are mostly based on soft law recommendations. Criticism focused on the need for stricter measures, particularly during the second half of 2020, which corresponds to the second wave of the pandemic.

13.  Legislation in preparation might change this.

14.  National authorities have not directly quoted standards developed by the World Health Organization (WHO) in the legal instruments or official guidance promulgated to address Covid-19. However, recommendations and decisions taken by the Public Health Agency of Sweden (Folkhälsomyndigheten) (FHM)5 are taken on the basis of daily scientific assessments. These include in-house reviews of international medical and scientific literature, but also information provided by other Swedish national agencies, by the 21 regional health organizations, and by international actors such as the EU and the WHO. Therefore, we can conclude that the WHO has had some degree of indirect influence on the management of the pandemic in Sweden.

15.  Sweden has implemented the WHO International Health Regulations6 into law.7 Diseases classified as dangerous to society under the Communicable Diseases Act—such as Covid-19—are also considered international threats to people’s health.

B.  Statutory provisions

16.  Covid-19 was included in the list of diseases dangerous to public health on 2 February 2020.8 Diseases dangerous to public health are defined as generally dangerous diseases that can spread and incur a serious disruption of important societal functions—or imminent risk thereof—and that require extraordinary contagion containment measures.9 The designation of Covid-19 as dangerous to public health has enabled the applicability of extraordinary measures to contain the spread of the disease under the Communicable Diseases Act.

17.  Emergency measures to face the Covid-19 pandemic were enacted under this already existing framework, the Communicable Diseases Act. This is a relatively recent piece of legislation that has been regularly updated.10 It was enacted after the first SARS-CoV (Severe acute respiratory syndrome-Coronavirus) outbreak, precisely to prepare for future public health emergencies caused by infectious diseases.

18.  This legislation offers a framework for responses to communicable diseases. It establishes general principles regarding the specific medical care for communicable diseases, lists possible measures for the prevention of community spread, and creates an approach on how the healthcare system should conduct medical examinations of communicable disease cases. All regulations enacted under this Communicable Diseases Act must be based on science and proven experience and cannot remain in force for longer than what is justifiable in light of the specific danger to human health. Measures shall respect the equal value of all human beings and the integrity of individuals and, when directed at children, take into account the child’s best interests.11 Coercive measures on individual patients can only be taken if no other less restrictive possibility is available.12

19.  Under the Communicable Diseases Act, the Government or an authority designated by the Government has delegated powers to regulate a number of matters through governmental decrees, including: epidemiologic monitoring;13 additional relevant information that healthcare personnel are required to gather from patients;14 exemptions from the notification obligation imposed on healthcare staff;15 exemptions from the obligation to notify without delay;16 and exceptions on information duties in the case of a certain illnesses.17

20.  In Sweden, during 2020, no new general law was introduced providing emergency powers to respond to the Covid-19 pandemic. However, a new general law, the Covid-19 Act entered into force on the 10 January 2021.18 This Act has a temporary nature, expiring at the end of September 2021, and allows for enactment of specific pandemic related delegated decrees, as further explored in Part II.C below.

C.  Executive rule-making powers

21.  Between February 2020 and December 2020, at least 138 legislative documents directly related to, or containing provisions applicable to the pandemic situation have been enacted. These have different formal legal natures and cross various fields of law. Additional legislation containing provisions indirectly motivated by the pandemic has also been enacted, namely indirect measures to promote employment and economic development. In this section we focus mainly on governmental decrees, meaning legislation that concerns matters for which the executive has direct or delegated legislative competence as follows from the Instrument of Government.19

22.  In terms of effect, these legal texts can range from introducing minor changes in existing acts of the Parliament and government decrees, to constituting entirely new acts and decrees. Substantively, some of these legal texts contain provisions that either directly or indirectly regulate and create mechanisms destined to tackle not only public health issues but also the social challenges posed by the pandemic.

23.  Executive rule-making and soft law instruments have both been used in response to the Covid-19 situation. However, at this point in time, these instruments do not appear to have been used any differently than under ordinary circumstances. It is possible that legislation has been prioritized or fast-tracked and tabled for approval to the detriment of other less time sensitive matters, however this could not be confirmed officially. Due to their time sensitive nature, and since tackling the pandemic has been an institutional priority of all institutional actors with legislative and regulatory responsibilities, the agenda for debate and work has prioritized such measures.

24.  Legislative measures in the form of government decrees relate not only to public health measures, but also to economic and social safeguard measures related to the challenges imposed by the Covid-19 pandemic. These are intended to create conditions to reduce disease progression and to provide support to businesses and persons affected.

25.  Most of these measures have limited temporal application: this feature is not a novelty but the extent of its use has been unusual. The first group of decrees had a three months duration, with the possibility to be re-evaluated and renewed on a trimestral basis, subject to the Parliament’s approval. More recently enacted decrees have a fixed expiry date, set in January 2021. A last group of measures, although influenced by the current situation, is of a more general nature and, as such, is not limited in time.

26.  Generally, the Swedish strategy has had broad support. However, after the first Covid-19 wave and a considerable death toll, especially among the elderly, there have been calls for additional measures which were finally passed through the Covid-19 Act 2021 (on 10 January 2021),20 allowing executive law-making to restrict constitutional rights in a way that had not been possible thus far.

27.  Sweden does not have a specific constitutional court. If any court finds a legislative instrument (act, decree, or ordinance) to be in breach of constitutional law, such legislation cannot be applied.21 While there have been appeals against administrative authorities’ decisions, so far, none of the Covid-19 related legislation has been declared unapplicable by a court of law (for further details, see Part III.B below).

D.  Guidance

28.  Sweden has relied significantly on guidance in its approach to combating the spread of Covid-19. This is at least partly due to the national constitutional and legal framework explained above and an assumption that everyone will take personal responsibility and follow national and regional recommendations, such as, for instance, social distancing.

29.  The Public Health Agency has had a central role in the Swedish authorities’ management of the pandemic. The Public Health Agency is officially mandated to provide both scientific and technical advice to executive and legislative authorities, but it is also tasked with providing direct general recommendations to companies and to the public. As of 27 October 2020, the national recommendations applying to all persons in Sweden, including at-risk groups, include (a) home isolation in case of mild cold symptoms, (b) hand washing with soap and water for at least 20 seconds, (c) arms-length distance between persons (both indoors and outdoors), (d) when possible, walk, cycle, or use any alternative to public transportation, (e) only choose public transportation where it is possible to book a seat or to avoid crowds, (f) preserve social distancing on public transportation at all times, (g) avoid large social gatherings and meetings with family that you do not live with, and (h) preserve social distancing at sport facilities.22 In December 2020, for the first time a recommendation to use face masks was introduced. From 7 January 2021, face masks are recommended during rush hours (Monday to Friday, 7am–9am and 4pm–6pm) for all persons born in or after 2004 using collective traffic without a seat reservation.23 These recommendations on preventive measures are regularly updated and in total, from March 2020 to December 2020, the Public Health Agency has issued 23 official recommendations related to Covid-19.24

30.  Since the Swedish strategy in 2020 was based on recommendations and individual responsibility, disseminating information to the public has been a priority. In the early days of the pandemic, every day at 2pm, the Public Health Agency, in coordination with other authorities, such as the Ministry of Health and Social Affairs, the National Board of Health and Welfare, and the Civil Contingencies Agency, has held a press conference with updated information and recommendations.

31.  Since 14 September 2020, updates are made four times per week (from Tuesday to Friday). This press conference is transmitted live, by open signal, by a public television network, and streamed online. The Public Health Agency maintains its website constantly updated, where informational resources, statistics, and recommendations are available, including information in simplified Swedish, narrated for the visually impaired, and in 17 other languages. A dedicated information hotline is also available in different languages. The e-health website contains general and specific information for patients, including when and how to get tested, and special procedures for those suspected of having been infected.25

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

32.  The legislature oversees the Government’s actions. The Government is accountable to Parliament, which has several ways to exercise its control.26 The Instrument of Government distinguishes between legal and political control of the executive by Parliament.

33.  As for legal parliamentary control, the role of the Committee on the Constitution (Konstitutionsutskottet) is very important. The Committee consists of 17 Parliament members representing all political parties. Since the Committee exercises parliamentary control over the Government, the President of the Committee on the Constitution is always a member of the opposition. The Committee on the Constitution scrutinizes the ministers’ performance in their official duties, as well as the handling of Government affairs in general, including through speeches and debates. The Committee is entitled to full access to all records of decisions and all documents pertaining to governmental matters. In that regard, the legislature oversees the decree-making power of the Government. The Committee issues an annual report to the Parliament, which in turn decides whether the Government is to be granted discharge from liability.

34.  The Committee may also call upon ministers to question them. If the Committee finds a minister guilty of serious misuse of office, it may decide to refer the case to a public prosecutor. Such a case must be adjudicated by the Supreme Court.

35.  The Committee decided on 24 March 2020 to postpone its usual spring examination of the Government until further notice due to the Covid-19 outbreak.27 On 4 June 2020, the Committee resumed its activities. Its examination will focus on how the Government exercised its power with regard to the Covid-19 crisis from a broader, constitutional, perspective.28 There has been a high death rate at care facilities for older persons, and therefore it was the focus of the first report, published in mid-December 2020. The Committee found, inter alia, that elderly care was—due to structural shortcomings that were known long before the Covid-19 outbreak—unprepared and ill-equipped when the pandemic struck. The overall conclusion was that the ultimate responsibility for these shortcomings rests with the Government in power and with previous governments also in possession of this information.29

36.  Each year in May, the Parliament holds a debate on the Government’s performance of its official duties. The debate is based on the reports Parliament members have submitted to the Committee on the Constitution.

37.  The Parliament may also at any time declare that a minister no longer enjoys confidence (misstroendeförklaring). Such a declaration requires the support of more than half of the total members of Parliament, ie 175 members. Such a motion has never been supported by the majority in Sweden in modern times.

38.  Legislative power is vested in the Parliament. Although the Parliament may delegate decree-making powers to the government in some areas, the Parliament can always legislate on the same issue. Parliament-enacted law prevails over Government-enacted norms. In that regard, the legislature can ‘terminate’ the decree-power of the Government in specific areas.

39.  The decree-making power of the Government does not need to be renewed by the legislature.

40.  The executive cannot extend its own powers without further action on the part of the legislature.

B.  The functioning of the legislature where its ordinary business is disrupted

41.  Parliament has continued its work during the Covid-19 pandemic and has not resorted to virtual meetings. Yet all political parties have reached an informal agreement to only allow 55 members to participate in the meetings of the chamber both in voting and parliamentary debates. 30 The other members have not participated at all although being in service. In other words, there has been no electronic voting. There have been no constraints imposed on the process for posing questions and offering rejoinders to answers. Before each vote, the parties decide which members are to be present at the vote. In other words, it is not the same 55 members who participate in every vote. The meetings of the chamber have continued to be open to the public by digital means.31

42.  Within Parliament, the 15 parliamentary committees are vital to the parliamentary process. Each committee consist of 17 members. The main task of these committees is to prepare any matter before it is discussed and decided upon in the chamber. These committees have continued to meet during the pandemic, and it has been possible for committee members to participate virtually in these meetings.

43.  There have been no significant complaints in the press or by opposition parties about disproportionate political constraints imposed on parliamentary scrutiny during the pandemic.

C.  Role of and access to courts

44.  In Sweden, the courts have remained open throughout the pandemic. No specific legislation was enacted with regards to the ongoing operation of courts during this time. Swedish courts have followed the recommendations from the Public Health Agency and have maintained court procedures without exceptions. The National Courts Administration (Domstolsverket), a State agency reporting to the government, also functioning as an administrative service provider for courts in Sweden, publishes on its webpage statistics on stayed proceedings on a weekly basis.32 At the beginning of the pandemic outbreak, close to 30 per cent of proceedings were stayed. Usually, this number just exceeds 20 per cent. The data, however, does not indicate the reason for staying a proceeding.

45.  According to the Swedish Code of Judicial Procedure, evidentiary statements made under examination are to be documented by sound and video recordings.33 In 2006, the rules of sound and video recording came into force, with the main purpose being to ensure that the district courts and the courts of appeal base their rulings on the same material. A practical consequence was that Swedish court rooms are equipped with a joint video-conference system administered by the National Court Administration that also enables different courts to connect to one another. Since Sweden is a country with sometimes long distances to the courts, it was quite common, even before the pandemic, that litigants, counsel, or witnesses attended the procedure in one court by video from another court. Thus, this system has nothing to do with the pandemic.

46.  Statistics from the National Court Administration show that digital attendance has increased since the pandemic started, both in civil and criminal cases.34 However, no proceedings are held completely online—proceedings are always held physically, and remote attendance is only supplementary. It is up to each judge to decide whether a litigant is allowed to attend online. The litigants and the counsel are allowed to attend remotely, but not the court. The courts have been equipped with the option of connecting the courtroom via technical bridges to actors outside the court system, which means that one can be present from a law firm or from home. There are no set criteria in the law that allow or deny video presence. If it is denied, it is mostly due to practical reasons (several litigants, long hearings, etc).

47.  According to statistics, 95 per cent of the population aged from 16 to 85 years has access to internet at home.35 Where access is provided by means of video link, there is no evidence supporting any digital divide between users who have online skills and those who do not.

48.  The Swedish legal system is based on the idea of a hierarchy of norms. According to Chapter 11, Article 14 of the Instrument of Government, courts and other public bodies may set aside provisions that are in conflict with rules of fundamental law or ‘other superior statute’ (judicial review). There is no special process for initiating judicial review. If a court finds a statute or a decree to be in conflict with a higher norm, it simply does not apply the lower norm. This provision has rarely been used in the past and it has not been used at all during the pandemic. The so-called travaux préparatoires (förarbeten) have always been a very important source of law in Sweden, in all areas. The courts have a tradition of following not only the written laws, but also the intentions that the legislator expressed in the preparatory works or bill proposals (propositioner). From a constitutional point of view, this means that the courts are in a weak position in relation to the legislator. There are also no constitutional courts in Sweden.

49.  In addition, decisions made by the Government may be subject to judicial review under certain circumstances outlined in the Judicial Review of Certain Government Decisions Act.36 Such a judicial review must be adjudicated by the Supreme Administrative Court. The Act entered into force originally in 1988 and is a consequence of Sweden being found, in several cases, in violation of Article 6 of the ECHR (the right to a fair trial).37 Unlike judicial review described above, only government decisions concerning civil rights are covered by the Act.

50.  Sweden’s constitutional order does not allow for the declaration of a state of emergency. Public health emergencies in various areas are therefore regulated entirely by ordinary law. This means that Chapter 11, Article 14 of the Instrument of Government applies. It has not been used at all during the pandemic.

D.  Elections

51.  During the Covid-19 pandemic, no elections or referendums were scheduled to take place and therefore there was no disruption caused. Neither has any legislative provision been made for elections scheduled for 2021.

E.  Scientific Advice

52.  There is no express mention in primary or secondary legislation of the Government’s obligation to follow scientific advice. However, Sweden has a strong tradition of relying on expertise provided by politically independent institutions. This has been particularly visible during the Covid-19 pandemic: the government has relied on the recommendations provided by the Public Health Agency. It is a government agency accountable to the Government (Ministry of Health and Social Affairs). The Government sets out the preconditions for the agency’s operations, on the one hand the annual appropriations directives and, on the other, ordinances. The appropriation directives set out, among other things, the goals an agency is to reach in its operations, how much money the authority has at its disposal, and how the money is to be distributed among its different activities. The Public Health Agency develops and supports activities designed to promote health, prevent illnesses, and improve preparedness for health threats. The agency has around 500 civil servants and is led by a Director-General.38

53.  Ministers are not obliged to act on the advice from civil servants as mentioned above, however, Sweden has a strong tradition of relying on such advice. This has become evident during the pandemic, during which the Government has entirely relied upon the scientific advice of the Public Health Agency.

54.  As for being genuinely independent from the Government, scientific advisers employed by a government agency (förvaltningsmyndighet), such as the Public Health Agency, have their independence secured by Chapter 12, Article 2 of the Instrument of Government, which states that a minister is prohibited from interfering with the day-to-day operations of an agency or the outcome of individual cases. Although the Government has quite a substantial degree of latitude to steer the operations of government agencies (see above), it has no power to intervene in an agency’s decisions in specific matters relating to the application of the law or the due exercise of its authority. There is therefore legally protected independence from the Government.

F.  Freedom of the press and freedom of information

55.  There is no indication that the reporting on Covid-19 by the media has been constrained or obstructed in any way by the Swedish government. No law regarding access to information has been suspended or modified. The general restrictions have not impacted the freedom of the press or the ability of journalists to do their job.

G.  Ombuds and oversight bodies

56.  The Parliamentary Ombudsmen (JO) are appointed by the Swedish Parliament to ensure that public authorities and their staff comply with the laws and statutes governing their actions. The Parliamentary Ombudsmen have carried out reviews regarding the consequences of the measures taken by various agencies to prevent the spread of Covid-19.

57.  On 1 July 2020, the Ministry of Health and Social Affairs appointed a committee of inquiry, instructed to evaluate the measures taken by the Government, the administrative authorities, and the municipalities to limit the spread of Covid-19 and its effects. 39 The committee’s final report is due by 28 February 2022. The first interim report will focus on the spread of the virus and the health and social care for the elderly, since there has been a high death rate at care facilities for the elderly.

IV.  Public Health Measures, Enforcement and Compliance

A.  Public health measures

58.  Sweden’s approach in combating the spread of Covid-19, unlike many of its European counterparts, has not involved any national or community-level quarantine, nor general restrictive mobility measures such as lockdown during 2020. Most of Sweden’s response so far has been implemented through guidance rather than enforceable law (see Part II above). This situation is likely to change in 2021, as a temporary Covid-19 Act entered into force on the 10 January 2021. The Act expires at the end of September 2021.

59.  This is at least partly due to the national constitutional framework, which does not allow for a state of exception, and to the legislation on communicable diseases, which does not provide for general measures suspending civil and human rights (see Parts I and II above). However, it is also based on the assumption that everyone will take personal responsibility and follow national and regional recommendations, such as, for instance, social distancing. There are no mandatory measures. The executive does not have the option to generally suspend fundamental rights.

60.  As of 27 October 2020, the national recommendations by the Public Health Agency applying to all persons in Sweden, including at-risk groups, include (a) home isolation in case of mild cold symptoms, (b) hand washing with soap and water for at least 20 seconds, (c) arms-length distance between persons (both indoors and outdoors), (d) when possible, walk, cycle, or use any alternative to public transportation, (e) only choose public transportation where it is possible to book a seat or to avoid crowds, (f) preserve social distancing in public transportation at all times, (g) avoid large social gatherings and meetings with family that you do not live with, and (h) preserve social distancing at sport facilities.40 These are recommendations and thus not legally binding: lack of observance of these recommendations does not trigger any penalty, nor are these enforceable by law enforcement authorities.

61.  The Communicable Diseases Act 2004 establishes a national mandatory notification system for epidemiologic monitoring, requiring that certain infectious diseases be reported.41 This includes obligations imposed on healthcare personnel (for example, physicians, laboratory technicians, and pathologists) to notify the local healthcare authorities and the Public Health Agency.42 Such notifications must include: (a) the infected or suspected infected patient’s name, social security number (or government coordination number), as well as address; (b) the likely source of infection; (c) the likely route of infection; (d) measures that the physician has taken to prevent the spread of the disease; and (e) any other relevant information,43 for example whether or not the individual was a blood donor.

62.  The system is based on individual duties to prevent contagion. Each person suspecting that they may be infected with an infectious disease has the obligation to take the necessary precautions to protect others, including alerting persons with whom they might have been in contact.44

63.  General quarantine and ‘lockdown’ measures are not allowed under the Communicable Diseases Act. Most of the disease containment and contagion prevention measures are directed towards individual patients. These measures include contact tracing and other obligations to inform, individual quarantine and compulsory treatment, prohibition from donating blood and organs, and the offer of vaccines under the national vaccination programme.45 According to the new Covid-19 Act 2021, the Government (or the governmental agency designated by the Government) has the power to issue regulations with general restrictions, for example, concerning public and private gatherings. These prohibitions are now enforceable with fines, and aimed mostly at limiting the maximum allowed number of persons in a given place or event; and eventually closing down parks, sport or cultural facilities, businesses, public transportation, etc. These regulations are to be referred to the Parliament for review within a week.

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

64.  The designation of Covid-19 as dangerous to the public health of society in February 202046 has enabled the adoption of extraordinary measures under the Communicable Diseases Act 2004. However, the travaux préparatoires emphasize that the possibility to use these extraordinary measures is very limited in scope. For instance, preventive quarantine and isolation measures, are to be applied mainly in very small areas, such as a block in a residential area. The objective of such a measure is to identify the origin of infection, not to isolate sizable parts of population in the country. So far, these localized measures have not been used in Sweden.

65.  The Covid-19 Act has provided broader delegated powers to enact pandemic-related legislation. However, they do not extend to general restrictions on citizens’ mobility, such as for example curfews or a general prohibition of leaving one’s residence, as these are commonly understood to lack support in the constitutional order.

2.  Restrictions on international and internal travel

66.  Since 19 March 2020, arrivals in Sweden from countries outside the European Economic Area (EEA) or Switzerland can be denied entry by the Swedish Police Authority, unless one of the legal exceptions applies. These exceptions include, for example, passengers in transit, exchange students, highly-qualified workers, urgent family reasons, and refugees.47

67.  The Swedish Ministry of Foreign Affairs regularly provides recommendations concerning trips from Sweden to other countries. These recommendations are based on data regarding the number of infected people in the destination country, and on advice, measures, and restrictions imposed by the specific country to limit the spread of Covid-19. It is also based on other concerns that may affect travellers, such as the destination country’s infrastructure, the likelihood of receiving care, or the availability of travel to, from, and within the country in question.

68.  On 14 March 2020, the Ministry of Foreign Affairs issued a recommendation against unnecessary travel to all countries, which has since been extended and is still valid to this day. The recommendations were gradually lifted for about 30 countries in Europe during the summer months of 2020. The Ministry of Foreign Affairs constantly monitors the situation and regularly reviews developments country by country. The Ministry can also reintroduce recommendations against unnecessary travel for countries in Europe when the situation calls for such measures.

69.  The temporary Covid-19 Act 2021 gives the government power to issue regulations restricting internal travel by temporarily closing down completely or ordering restrictions, such as reducing the number of seats and modifying timetables in public transportation and domestic air travel.48

3.  Limitations on public and private gatherings and events

70.  The measures by the Government have been limited to the prohibition of visitors to care facilities for older persons (from 1 April 2020 to 31 October 2020)49 and the limitation of gatherings and public events in public spaces, initially to 500 persons,50 then to 50 persons since 12 March 2020, and thereafter eight persons, covering both indoor and outdoor events.51 This limitation was also extended to establishments open to the public from 29 March 2020 onwards.52 Failure to comply with this measure carries a fine or prison sentence of up to six months. General gatherings include demonstrations, public lectures, religious practice, theatre, cinema, and concerts. Public events include sports events, dance, markets, and fairs. Schools, public transportation, private functions, large grocery and retail stores, and shopping centres are not included in the prohibition. However, it is recommended that they be observant of the recommendations in place. As a matter of fact, many high schools, higher education institutions, and many private workplaces have adopted home-based work and study.53

71.  The restriction of public gatherings to 50 persons (adopted on 12 March 2020 and valid until 24 November 2020) had a specific impact on the ability of the public to protest in support of the Black Lives Matter movement in general. The right to demonstrate was limited by the Swedish police, on the ground that more than 50 people might attend the demonstrations. In some cases, a permit for demonstrations has been granted on the condition that the demonstration may not exceed 50 people. It has also been reported that police have intervened to block access to roads and ordered persons to disperse when more than 50 persons have started to gather. The decree of 11 March 2020 establishing a prohibition against holding general gatherings and public events was modified on 24 November 2020, further limiting the possibility to gather in groups. According to the updated regulation, public gatherings and public events with more than eight participants may not be held in Sweden. The prohibition does not apply to public gatherings for the practice of religion such as funerals, if the number of participants does not exceed 20. The prohibition also does not apply to public gatherings and public events with a maximum of 300 participants, if each of the participants is assigned a seat at least one metre distance from other participants, and that, if not seated, conditions are created for the participants to maintain that distance at the gathering or event.

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sport facilities)

72.  During the spring semester, schools in Sweden had to adapt to remote education due to the pandemic outbreak.54 Since 15 June 2020 and during the fall semester, regular classroom tutoring has been available in schools in Sweden. This is important for Swedish authorities, in light of every child’s right to free education, and especially since the United Nations Convention on the Rights of the Child was to be fully implemented into Swedish legislation from 1 January 2020 via the Act on incorporating the UN Convention on the Rights of the Child.55 Ultimately, it is up to each school principal, at every level of education, to minimize the spread of infection in the way that best suits the individual institution.

73.  During local outbreaks, the aforementioned Act on temporary closure of school activities made it possible to close schools temporarily to protect the children and the personnel.56 According to Section 4 in the Act on temporary closure of school activities, a principal may decide that a preschool unit, after-school centre, or any other educational activity shall be closed temporarily (a) if the principal considers that such a large proportion of the staff at the activity is absent due to disease or that it is not possible to conduct business for a certain period of time; (b) after consultation with the infection control physician as a measure to prevent the spread of such a disease; (c) if the activity is conducted in an area cordoned off by the Swedish Public Health Agency in accordance with the Communicable Diseases Act, or (d) due to a recommendation from the Public Health Agency regarding the school area. However, the principal shall always offer (a) pre-school for children who, due to physical, mental, or other reasons, need such special support in their development that can only be offered in pre-school; (b) leisure centres for pupils who, due to physical, mental, or other reasons, need such special support in their development that can only be offered in leisure centres; or (c) preschool, leisure centre, or other educational activity for children or students who have a guardian who participates in socially important activities.

5.  Physical distancing

74.  Some legal guidance regarding mandatory physical distancing has been adopted. According to recommendations from the Public Health Agency,57 everybody should limit new contacts. If meeting others, the Public Health Agency recommends avoiding being close for a long time, especially in smaller spaces, and preferably meeting outdoors. It is also advised to keep distance from others and avoid crowded environments.

75.  People who may be exposed to infection and who have respiratory symptoms such as a cough, difficulty breathing, or a fever are advised to call the healthcare system for an assessment and stay at home isolated until the test result has arrived.

6.  Use of face coverings and personal protective equipment (PPE)

76.  The importance of basic hygiene practices in healthcare has been constantly highlighted in the recommendations published by the Public Health Agency since the beginning of the outbreak, along with the need for a risk-based use of personal protective equipment.58 Specific information is provided to at-risk groups, pregnant women, care facilities for the elderly, and similar care facilities, as well as to event organizers, bars, restaurants, and others. The recommendations are general and apply to both open and closed places.

77.  From 7 January 2021, face coverings are recommended on public transport without allocated seating at rush hours (Monday to Friday, 7am–9am and 4pm–6pm) for persons born in or before 2004.59

7.  Isolation of infected individuals and quarantine of individuals suspected of infection

78.  Sweden has not applied general mandatory quarantine rules to persons travelling from abroad to Sweden. However, there is legal support for the use of isolation or quarantine according to Swedish regulation if considered necessary. According to Section 1 of the Communicable Diseases Act 2004, anyone who carries a generally dangerous disease may be isolated if (a) it is clear from the circumstances that the individual is not prepared or able to voluntarily submit to the measures required to prevent or, as far as possible, reduce the risk of the spread of the infection; or (b) there is good reason to assume that the individual does not follow the rules of conduct that have been decided.

79.  Due to the special circumstances that prevailed in connection with dozens of people being evacuated to Sweden from Wuhan in China on 2 February 2020, the Public Health Agency chose to recommend voluntary home quarantine with careful daily follow-up from the regional infection control unit for two weeks.

8.  Testing, treatment, and vaccination

80.  During 2020, Sweden has not imposed any general coercive obligations of testing, treatment, or vaccination against Covid-19. Patients and deceased persons are tested at hospitals and healthcare facilities. The Public Health Agency recommends testing and self-isolation at home if one has symptoms. The different health regional authorities have created procedures to facilitate large scale testing, including the possibility to request testing material via the internet or telephone. Since 6 February 2021, a negative Covid-19 test conducted within 48 hours prior to arrival in Sweden is required for foreign citizens traveling to Sweden. Swedish citizens are recommended to test themselves before traveling to Sweden.60

81.  Vaccination in Sweden is not mandatory and it is regulated by the Communicable Diseases Act. Vaccination against Covid-19 began in December 2020. The Public Health Agency recommended complex prioritization in four phases, starting with older persons residing in care facilities and in-home care settings.61 Implementation is ensured by regional healthcare authorities, which decide on the actual order and procedures depending on logistic, operational, and healthcare specific local circumstances.

9.  Contact tracing procedures

82.  No legal measures or guidance regarding mandatory contact tracing have been adopted. Individualized contact tracing has been conducted under the rules and procedures already in place for all communicable diseases under the Communicable Diseases Act. The use of tracing apps has not been recommended by the Public Health Agency and is not part of the Swedish strategy to tackle the pandemic.

10.  Measures in long-term care facilities or homes for the elderly, restrictions on visitors etc.

83.  Prohibition of visitors in care facilities for older persons was imposed by the government from 1 April 2020 to 31 October 2020.62 A few municipalities challenged the decision to abolish the regulation in October 2020 and kept restrictions in place. Other municipalities did not find the regulation necessary. They argued that it would be better to provide concrete and tangible support for elderly care facilities to create a safe environment, eg through pre-announced visits, guidelines on how many people could come at a time, and that the visits should take place in the residents’ apartments and not in common areas. However, the government decided to reintroduce new regulation prohibiting visitors in care facilities from 21 November 2020. Decisions to ban visits may not be appealed.

84.  Overall, there has been a broad national critique in the Swedish media during 2020 regarding care facilities for older persons, which have been suffering from transmission of Covid-19 during the pandemic. This critique has raised broad national scepticism regarding how national care for the elderly is organized.

85.  According to supervision by the national Health and Social Care Inspectorate (IVO), the government agency responsible for supervising health care and social services, the situation at the elder care facilities has been very unsatisfactory during the pandemic.63 According to the IVO, the high death rates at selected care facilities for older persons are partly due to unsatisfactory conditions in the national elderly care system generally. The IVO also made the assessment that the national system, which divides the responsibility of older persons’ care between the municipalities and the county councils, is very problematic. According to the IVO, no county council has taken full responsibility for ensuring needs-adapted medical care for people living in special housing for the elderly during the pandemic. The IVO declared that important measures are urgently needed to improve the situation in many municipalities. The final results of this investigation and eventual subsequent legislative interventions will most likely have an important effect on future organization of elderly care in Sweden.

B.  Enforcement and compliance

1.  Enforcement

86.  Sweden has not been in an official lockdown since the outbreak of Covid-19, and many prohibitions have not been paired with penalties. Instead, the main measures adopted against the spread of Covid-19 have been mild restrictions and recommendations from the Public Health Agency. These recommendations have been loosely enforced in Sweden since the outbreak of the pandemic. In exceptional cases, measures are mandatory. The police authority may cancel or dissolve a gathering or event that is held in violation of a prohibition. Anyone who, in their capacity as organizer, violates the ordinance prohibiting the holding of public gatherings and public events can also be punished by a fine or imprisonment for a maximum of six months.

87.  The purpose of the temporary Covid-19 Act 2021 is to give the government increased power to decide on more binding control measures than those which were previously possible. This will involve restrictions in the form of limiting the number of visitors to care facilities, regulating the opening hours of or closing gyms, sports facilities, libraries, campsites, museums, zoos, shopping centres, shops, hairdressing salons, party rooms, and public transportation. In serious situations, measures to close down activities and restrict crowds in places to which the public has access will most certainly be adopted. These potential decisions must be referred to review by the Parliament within a week.

88.  The responsibility for supervising the restrictions lies at the regional level. The County Administrative Boards (Länsstyrelserna) are given supervisory responsibility. If the rules are not followed, the county administrative boards can decide on injunctions such as closure. If necessary, a fine can be imposed. Anyone who violates regulations that restrict access to a public place can be sentenced to a fine. The law expires at the end of September 2021.

2.  Compliance

89.  Both the Swedish Civil Contingencies Agency and the Public Health Agency consider the majority of the population to be complying with Covid-19 related recommendations issued by the Public Health Agency.64 Similar statements have been made by government officials and large circulation newspapers.

90.  The County Administrative Boards, received the delegated task to observe compliance with recommendations, guidelines, and advice provided by the Public Health Agency for reducing the spread of Covid-19.65 Weekly reports have been issued since week 28 of 2020 (6–12 July 2020).66 These rely on information received from county authorities, public transportation operators, police, national parks, and commercial entities with well-attended businesses. The reports show the aggregated perception of these actors on general compliance, challenges related to seasonal events that induce traveling and social reunions, localized disease focus, measures taken, and measures required to tackle the situation. Overall, the compliance situation appears to be positive, but fluid. It could not be confirmed, but it is credible that there is a correlation between the identification of problematic areas, different interventions to promote and ensure increased compliance, and positive evolution of perceived public compliance.

91.  In a press release dated 8 April 2020, the Public Health Agency announced that it would use anonymized aggregated data from telephone operator Telia to analyse how persons move in Sweden in connection with the spread of Covid-19.67 Data analysis shows that in comparison with the same week in 2019, movement and traveling in Sweden has decreased considerably.68 Telia’s own analysis shows a 24% decrease in the number of daily average trips.69 Data retrieved from search engine Google reported by the Public Health Agency shows an increase of traffic in home IP addresses and a decrease in workplaces, leisure facilities, and retail stores.70

92.  The Transport Analysis Agency, a governmental institution established with the mission to provide policy advice to relevant decision makers, has published a study on traveling patterns during the first 6 months of the pandemic (March–August 2020). It concludes that total travel decreased by 23% in March–April and 12% in July–August, corresponding to an average decrease of 16% over the six-month period. Public transport saw the biggest decline in absolute numbers, but long-haul trains and air and sea travel (international and domestic) also saw a considerable decline.71

93.  Furthermore, a number of surveys conducted by independent commercial entities using a variety of methodologies have been published. Here are a few examples: a survey commissioned by the Swedish Civil Contingencies Agency from a private company conducted in March–June 2020, shows that 99% of interviewed persons report changing their social behaviours and normal habits due to Covid-19, for example concerning handshaking, social distancing, washing hands, and use of hand sanitiser. Data is inconclusive as to whether this was a response to the recommendations or a spontaneous reaction. When asked to evaluate the Swedish Covid-19 strategy in terms of balance between public health protection and safekeeping the economy, 9% of participants answered that they consider that the strategy puts public health before economic considerations, a majority of 63% considered that there was a good balance, and only 16% interpreted the strategy as privileging economy to the detriment of public health. The same survey also reports that the percentage of interviewed persons with a high or very high trust in the various institutions’ management of the pandemic was 80% for the healthcare system, 75% for the Public Health Agency, and 57% for the Government.72 On the other hand, a public survey conducted in May 2020, based on 1900 demographic representative interviews of persons aged 18–79, found that 36% of respondents with mild symptoms and 26% mildly ill have continued to work. Almost none of the respondents report working from home.73 However, the same company, in a later survey, compared behaviour changes between week 42 (12–18 October 2020) and week 47 (16–22 November 2020) of 2020. Answers show an increase in respondents reporting reducing their social contacts (from 53 to 70%), avoiding restaurants (from 40 to 61%), and cancelling private functions (from 28% to 49%).74

Prof. Titti Mattsson, Faculty of Law, Lund University

Dr. Ana Nordberg, Faculty of Law, Lund University

Dr. Martina Axmin, Faculty of Law, Lund University

Footnotes:

1  Instrument of Government (1974:152) (28 February 1974), ch 15.

2  Instrument of Government (1974:152) (28 February 1974), pts II, III.

3  European Convention on Human Rights, Protocol 1 (20 March 1952); Protocol 4 (16 September 1963); Protocol 6 (28 April 1983); Protocol 7 (22 November 1984); Protocol 13 (3 May 2002).

4  Instrument of Government (1974:152) (28 February 1974), ch 2, para 19.

5  Public Health Agency of Sweden, ‘Our mission – to strengthen and develop public health’ (accessed 15 November 2020).

9  Communicable Diseases Act (2004:168), para 3.

10  Communicable Diseases Act (2004:168) has been revised 22 times with small updates, in 2004, 2006, 2009, 2010, 2012, 2014, 2017, 2018, 2019 and 2020. The last revision is dated 4 June 2020.

11  Communicable Diseases Act (2004:168), ch 1, para 4.

12  Communicable Diseases Act (2004:168), ch 1, para 4.

13  Communicable Diseases Act (2004:168), ch 2, paras 5, 7.1.

14  Communicable Diseases Act (2004:168), ch 2, paras 6.5, 7.3.

15  Communicable Diseases Act (2004:168), ch 2, paras 5, 7.4.

16  Communicable Diseases Act (2004:168), ch 2, paras 5, 7.5.

17  Communicable Diseases Act (2004:168), ch 2, paras 7.6.

18  Act (2021:4) of 8 January 2021 on special restrictions for preventing the spread of the covid-19 disease.

19  Instrument of Government (1974:152), ch 8, paras 3–7.

20  Covid-19 Act (2021:4).

21  Instrument of Government, ch 11, para 14.

23  Revision HSLF-FS 2020:92 (23 December 2020) in Regulation and general advice concerning everyone’s responsibility to prevent the spread of Covid-19 (HSLF-FS 2020:12) (21 October 2020) (consolidated version).

24  Public Health Agency of Sweden, ‘Regulations and general recommendations’ (accessed 20 December 2020).

25  Public Health Agency of Sweden, ‘The health and treatment guide’ (accessed 15 November 2020).

26  Instrument of Government (1974:152) (28 February 1974), ch 13.

29  Committee on the Constitution, ‘Summary of SOU 2020:80 Elderly care during the pandemic’ (15 December 2020).

31  The Swedish Parliament, ‘The Riksdag’s work in connection with the coronavirus’ (accessed 15 March 2021).

32  Swedish National Courts Administration, ‘Statistics due to the coronavirus’ (accessed 15 November 2020).

33  Swedish Code of Judicial Procedure (1942:740), ch 6, art 6.

34  Swedish National Courts Administration, ‘Statistics due to the coronavirus’ (accessed 15 March 2021).

35  Statistic Sweden, ‘Share of persons who have access to the Internet at home’ (18 November 2020).

37  See for example Sporrong and Lönnroth v Sweden (judgment of 23 September 1982, No 52); Pudas v Sweden (judgment of 27 October 1987, No 10426/83); Tre Traktörer v Sweden (judgment of 7 July 1989, No 10873/84); and Fredin v Sverige (judgment of 18 February 1991, No 12033/86).

38  Public Health Agency of Sweden, ‘Our mission – to strengthen and develop public health’ (accessed 15 November 2020).

39  Ministry of Health and Social Affairs, ‘Mats Melin to chair Covid-19 inquiry in Sweden’ (1 July 2020).

41  A full list is contained in Communicable Diseases Act, annexes 1 and 2.

42  Communicable Diseases Act (2004:168), ch 2, para 5.

43  Communicable Diseases Act (2004:168), ch 2, para 6.

44  Communicable Diseases Act (2004:168), ch 2, para 2.

45  Communicable Diseases Act (2004:168), ch 3, paras 8–10, ch 4, ch 5.

48  Covid-19 Act (2021:4), para 10.

63  Health and Social Care Inspectorate, ‘Supervision of the Elder Care Facilities during the Pandemic’ (accessed 19 March 2021).

64  Swedish Civil Contingencies Agency, ‘Eight out of ten continue to follow recommendations as much or more than before’ (4 August 2020); Public Health Agency, ‘Press conference on covid-19, 23 june 2020’ (Youtube, 23 June 2020)

67  Public Health Agency, ‘Public Health Agency takes help from mobile data’ (Press release, 8 April 2020).

68  Public Health Agency, ‘Movement and traveling’ (updated 1 March 2021) (accessed 19 March 2021).

69  TELIA, ‘Mobile communication and Health’ (accessed 19 March 2021).

70  Public Health Agency, ‘Movement and traveling’ (updated 1 March 2021) (accessed 19 March 2021).

71  Transport Analysis Agency, ‘Changes in travel patterns in Sweden during the first six months of the corona pandemic’ (4 January 2021).

73  Novus, ‘Corona Status 11 May 2020’ (accessed 19 March 2021).

74  Novus, ‘Corona Status 30 November 2020’ (accessed 19 March 2021).