Swedish Supreme Court (Högsta domstolen) Decision of November 30, 2016 in case Ö 5052-16

Criminal procedure - Non-discrimination, free movement

Whether a citizen of Lithuania, who was held in detention in Sweden awaiting the judgment to obtain legal force, was discriminated against since the legal ground for keeping him in detention (according to Swedish law) was the risk that he would not be found at the time of the proper trial. A Swedish citizen might not have been held in pre-trial detention for the same kind of crime, since the risk that a Swedish citizen would be able to keep away from the authorities is usually considered to be smaller. 

A citizen of Lithuania was charged and convicted in Sweden for illegal import of narcotics and thus supposed to serve three months in prison. Awaiting the judgement to obtain legal force, he was held in detention. The decision to keep him in detention was appealed against. The Lithuanian citizen claimed that his right to free movement within the EU had been discriminated against, since a Swedish citizen might not have been held in detention awaiting the prison sentence. 

The Swedish Supreme Court ruled that EU law is applicable to the case since the Lithuanian citizen has exercised his right to free movement. The Court also refers to the European Arrest Warrant – stating that according to the Swedish implementation, an EAW could only be issued if the crime corresponds to a prison sentence of four months or more – and Mutual Recognition – stating that mutual recognition only applies if there is a prison sentence for six months or more. Because none of these instruments were applicable, Lithuanian authorities would have no duty to cooperate with Swedish authorities if the Lithuanian citizen chose to leave Sweden. The Court then concludes that a Lithuanian citizen awaiting a short prison sentence in Sweden is not in the same situation as a Swedish citizen awaiting the same sentence. Therefore, the Lithuanian citizen was not discriminated against.

Charter Article 21, Non-discrimination

C-182/15 Petruhhin