From the right to be present to the obligation to be present. A closer look at the mandatory appearance for suspects that came into force on 1 July 2024.

1 July 2024. Traditionally, this is a date on which a significant number of new laws and amendments come into force. This year, despite political shifts, is no different. A notable amendment in criminal law concerns the ‘mandatory appearance for suspects’. This controversial amendment to the Code of Criminal Procedure (Sv) has yet to be fully understood in its effects.

As of 1 July 2024, a new Article 258a Sv has come into effect. Under this article, suspects of certain crimes are required to be present at the substantive hearing of their criminal case. This applies to suspects who are in detention at the time of the substantive hearing, either because they are being held in pre-trial detention in connection with the case in question, or because they are serving a prison sentence imposed in another case. The mandatory appearance applies to all crimes carrying a statutory maximum sentence of eight years or more, including habitual money laundering, as well as a number of specifically listed offences in the law (mainly violent and sexual offences).

An exception to this mandatory appearance can be made by the presiding judge (see Article 258a, second paragraph Sv). The judge may independently, at the request of the public prosecutor, or at the request of the suspect or the victim, decide that the suspect need not be present due to compelling interests of the suspect (such as their health), the victim, or any of the other participants in the proceedings. Furthermore, an exception can be made if none of the parties involved in the proceedings considers the suspect’s appearance necessary or desirable.

Until now, suspects had the right to be present at the hearing of their case but, even if they were in custody, they had the option to waive that right. The only exception was for suspects whose pre-trial detention had been suspended on the condition that they respond to every summons from the police and judiciary. Moreover, the judge already had the power to require a suspect’s presence in court, for example during the exercise of the right to speak (Article 278, second paragraph Sv).

The mandatory appearance is part of the Act on the Extension of Victims’ Rights. The background to this requirement, as explained by the Minister, is to give victims more justice by allowing them the opportunity to personally tell suspects how the crime has affected them. Additionally, the mandatory appearance provides the judge and public prosecutor with the opportunity to question suspects directly. According to the Minister, this would contribute to truth-finding.

This amendment conflicts with the presumption of innocence. A suspect is now compelled to appear at a public hearing and to listen to a (generally accusatory) victim impact statement, even though their guilt has not yet been established. This tension is heightened by the question of whether this requirement genuinely serves victims or aids in truth-finding. Mandatory appearance is not always in the victim’s interest, particularly in situations where the victim delivers their statement to an uninterested suspect who is present solely because of the legal obligation. In most cases, this is more likely to result in (further) victimisation than to provide the victim with any sense of closure. A similar issue arises concerning the supposed contribution to truth-finding. It is hard to imagine that a suspect, determined to remain silent, will adopt a different stance merely because they are required to attend. A suspect intending to give a statement would likely have exercised their right to be present voluntarily, without the need for a mandatory appearance.

Against this background, it remains difficult to understand why the existing options for a judge to require a suspect’s attendance at a hearing were deemed insufficient, and why this general obligation has been enshrined in law.

One small consolation: the former Minister for Legal Protection, Weerwind, has already promised that in 2026, the effects of the mandatory appearance on victims, suspects, the organisations involved, and public safety in relation to transport movements will be evaluated.