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Sweden: Former Ambassador Charged with “Arbitrariness During Negotiations with a Foreign Power”

(Dec. 27, 2019) On December 9, 2019, the Swedish prosecutor charged former ambassador to China, Anna Lindstedt, with “arbitrariness during negotiations with a foreign power” (egenmäktighet vid förhandling med främmande makt), for conducting secret negotiations, without prior authorization from the Swedish Foreign Ministry, with parties that represented the Chinese government’s interest in relation to the release of a Swedish citizen. (19 kap. 4 § Brottsbalken (BRB) [Criminal Code] (SFS 1962:700); Ansökan om stämning [indictment], Stockholm District Court, Case No. B 3911-19 (on file with author).) The meeting took place in January 2019, and the Swedish ambassador has since been recalled from her post.

Under Swedish law ambassadors or other persons representing Sweden may not exceed their government mandate while negotiating with foreign governments. Depending on the severity of the action, an ambassador may be guilty of either “treachery during negotiations” (trolöshet vid förhandling) or “arbitrary conduct during negotiations” (egenmäktighet vid förhandling) with a foreign power. (19 kap. 3–4 §§ BRB.)

3 §   If a person who has been tasked with negotiating with a foreign power on behalf of the Kingdom or with otherwise safeguarding the Kingdom’s interests [while engaging] with someone who represents a foreign power’s interests abuses this authority to represent the Kingdom or otherwise [abuses] his/her position of trust, and thereby causes the Kingdom considerable harm, [he/she] is guilty of the crime of treachery during negotiations with a foreign power and must be sentenced to imprisonment for no less than two years and no more than eighteen years, or for life.

4 §   A Swedish citizen who, without permission from the government, or someone whom the government has authorized lets himself/herself be used as an agent of a foreign power in a diplomatic matter that concerns the Kingdom, as well as anyone who, as an authorized agent, enters into negotiations regarding such a matter with a person that represents a foreign power’s interests, is guilty of arbitrariness during negotiations with a foreign power and must be sentenced to [a term of] imprisonment not to exceed two years or, if the kingdom is at war, not to exceed four years.

If the crime meant a risk to the Kingdom’s right of sovereignty or its peaceful relationship to a foreign power, the person is sentenced to imprisonment for at least one year and no more than six years, or if the Kingdom is at war, to imprisonment for a minimum of four and a maximum of ten years, or life in prison.  (19 kap. 3–4 §§ BRB.)

In the present case the former ambassador is charged with the lesser crime, “arbitrariness during negotiations with a foreign power.” (Case No. B 3911-19.) While article 3 applies only to diplomats, article 4 applies to any Swedish citizen. Thus, according to one legal commentator, “also anyone who is a [Swedish] agent – for example a diplomat – but who exceeds one’s authority is included.” (Mari-Ann Roos, comment 1016, in 2 Karnov: svensk lagsamling med kommentarer 2018/2019 at 2784.) According to news reports, the Swedish Security Police argued that the conduct qualified as treacherous conduct and not just conduct exceeding the ambassador’s authority.

On December 11, 2019, following the announcement that the prosecutor had decided to charge the ambassador, the Left Party (member of Parliament) also reported the former foreign minister, Margot Wallström (who retired, not in relation to the incident, in August 2019) to the Constitutional Committee of the Riksdag (Konstitutionsutskottet), which determines whether a government official should be prosecuted. In its request for a review of the minister’s conduct, the Left Party asked the Committee to determine whether the minister was actually unaware of the ambassador’s conduct and, depending on their findings on her level of knowledge, determine if she mismanaged her department.