On August 18, 2023, the Swedish government announced that it had appointed a special investigator (särskild utredare) to review the legal conditions for amending the 1993 Public Order Act with the aim of restricting public gatherings over national security concerns.
The announcement comes on the heels of recent Qur’an burnings in Sweden and an appeals court decision holding that the police cannot withhold permission for public gatherings to burn the Qur’an outside the Turkish and Iranian embassies over risks of a terrorist response. (Administrative Appeals Court Cases Nos. 2079-23 & 2080-23 (on file with author).)
As instructed by the Swedish government, the investigator is to review the legal conditions that the Swedish Constitution provides for amending the Public Order Act to add new restrictions on public gatherings. Specifically, the government instructed the committee to:
- analyze and describe what legal possibilities the constitution provides to take into account circumstances that threaten Sweden’s security when examining permits for public gatherings and the right to cancel and dissolve public assemblies,
- submit proposals that allow for circumstances that threaten Sweden’s security to be taken into account when assessing whether there are grounds for refusing a permit, and specify what conditions the Police Authority must set for the gathering, e.g., the possibility of designating another place for the meeting, as well as when considering canceling and dissolving public gatherings,
- analyze and describe what legal possibilities the Swedish Constitution and EU law provide for considering citizenship status during the application process for public gatherings and, if appropriate, provide proposals for this, and
- make [proposed] amendments time-limited and submit proposals for a process to evaluate them. (Committee Terms of Reference (Kommitteedirektiv) [Dir.] 2023:123 at 9.)
Legal Protections for Freedom of Assembly
The Swedish Constitution protects freedom of assembly and the right to demonstrate, and provides that these rights “may be limited only with reference to the order and safety at the gathering or demonstration or because of traffic. Otherwise, these rights can be limited only with reference to national security or to prevent epidemics.” (2 ch. 24 § Swedish Constitution (Regeringsformen [RF] (SFS 1974:152)).)
Under current law, the Public Order Act requires that persons who want to hold a public gathering seek a permit with the local police, who can reject the application over security or traffic concerns. (2 ch. 4, 6, 10 § Public Order Act.) In addition, the law provides that a public gathering can be dissolved if the gathering is held in violation of the conditions set up by the permit, over safety concerns for participants of the public gathering, or over traffic concerns. (2 ch. 22–23 §§.) The police can dissolve or cancel the gathering “only if less intrusive measures have proven to be insufficient to prevent further illegal actions, restore order, protect those present or limit disruption to traffic.” (2 ch. 24 §.) Swedish courts have previously ruled that rejecting permits for public gatherings because of general threats to public security, including terror threats, is not lawful; rather, the threat must be specific to the public gathering.
Reasons for Reviewing the Public Order Act
The review of the Public Order Act has been described as a way to improve international relations, in particular with Turkey, which has yet to approve Sweden’s NATO membership application and has voiced demands that Sweden change its public order rules to criminalize the burning of the Qur’an. The move to review the act has also been criticized by political organizations as bowing to terrorist threats. The day before the announcement of the review of the Public Order Act, Sweden raised its terror threat level from three to four over a general higher terrorism threat against Sweden.
The government in its Committee Terms of Reference specifically mentions the changes in culture, stating that “[w]hen the [current Public Order Act] was adopted, Sweden was in a different security policy situation [säkerhetspolitisk situation] where the now arisen ways of exercising violent extremism, and hybrid wars through, among other things, information and influence operations did not happen in the same way as they do today.” (Dir. 2023:123 at 6, trans. by author.)
Moreover, according to the Committee Terms of Reference, the Swedish police have expressed a need to be able to review terror threats as part of the application process for a public gathering and to place conditions on the public gathering or relocate it. (Dir. 2023:123 at 7.) Therefore, the committee must also investigate whether such considerations by the police would be constitutional. (Dir. 2023:123 at 10.)
The Committee Terms of Reference also open up the possibility of adopting separate rules for public gatherings depending on the citizenship status of the person seeking the permit for the public gathering, a direct result of the most recent Qur’an burnings in Sweden being held by persons without Swedish citizenship. Here the committee must also review rules protecting EU citizens. (Dir. 2023:123 at 8.)
The mandate for the committee’s review, which must be completed by July 1, 2024, does not include proposing amendments to the Swedish Constitution. Amendments to the Swedish Constitution require a qualified majority in two votes in the Swedish parliament, with a national parliamentary election in between. (8 ch. 14 § RF.)
Elin Hofverberg, Law Library of Congress
September 15, 2023
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