Key facts of the case:
On 3 May 2010 R.G. was speeding on a highway with a speed limit of 120 kilometer per hour when he was stopped by a police officer that imposed a penalty for exceeding the speed limit. R.G. accepted the fine at the time but later appeled to the Court of Appeal of West Sweden (Hovrätten för västra Sverige) and petitioned for a new trial on the following grounds. Chapter 9 paragraph 1, first section of the Traffic Ordinance (Trafikförordningen) (1998:1276) provides that the maximum speed on Swedish highways is 110 km per hour. According to paragraph 3 of the same Ordinance, the Swedish Transport Administration (Trafikverket) (formerly Vägverket (National Road Administration)) may issue regulations determining the maximum speed on a highway to 120 km per hour. According to regulations of the then National Road Administration (Vägverket) deciding the speed limits on the highway in question (VVFS 2008:212) the maximum speed was 120 kilometer per hour. The regulations were issued pursuant to Chapter 9 paragraph 1, section 3 of the Traffic Ordinance (1998:1276). In the version the Traffic Ordinance had at the time of the offense, Chapter 14, paragraph 3, section 1 states that a person who intentionally or negligently has violated the provision in Chapter 9, paragraph 1 and exceeded the speed limit should be sentenced to a fine. However, Chapter 14 paragraph 3 of the Ordinance did not specify what would happen if someone violated a provision of the kind that the National Road Administration had announced in accordance with Chapter 9, paragraph 1, section 3. The Court of Appeal of West Sweden went along with the R.G.’s appeal and argued the following. According to Chapter 48, paragraph 13, section 1 of the Code of Judicial Procedure (Rättegångsbalken) (1942:740) R.G. may be imposed with a penality. Chapter 48 Paragraph 14 of the Code states the process for issuing penalties – the Prosecutor General decides which actions that should be penalised in consultation with the National Police Board. The prosecutor then determines the amount of penance. The Prosecutor has announced such regulations regarding speeding. The first paragraph of these regulations states that the imposition of a penalty may be issued in respect of the offenses listed in the Annexes to these regulations. Violation of the Highway Code is given in Annex 1 and under the heading "Exceeding the maximum allowable speed" speed violations are particularly mentioned. However, violations of the regulations that have been issued pursuant to Chapter 9 (1) are not listed there. As a consequence, the imposition of a penalty may not be issued for violation of a regulation that has been issued under this provision. The issuing of the fine is therefore clearly contrary to the law. The Court of Appeal granted R.G. a new trial in accordance to Chapter 58, paragraph 2, section 5 of the Code of Judicial Procedure (1942:740) and decides on the basis of paragraph 7, section 1 of the same chapter to immediately remove the imposition of the penalty. The Prosecutor General appealed to the Supreme Court and demanded that that R.G.’s petition for a new trial that had been granted by the Court of Appeal should be denied. The Supreme Court focused their examination of the case on two interrelated questions. Was R.G.'s speeding covered by any provision of criminal liabilities? If so, would it be possible to impose a penalty on R.G. The Supreme Court argued the following. R.G. drove his car in a speed of 141 kilometers per hour on a highway where the maximum speed limit was 120 kilometer per hour. The speed limit was adopted by the Swedish Road Administration under Chapter 9. § 1, third paragraph of the Traffic Ordinance. At the time of R.G.’s speeding, Chapter 14, paragraph 3, section 1 of the Traffic Ordinance specified that a driver of a motor vehicle who willfully or negligently violated Chapter 9 paragraph 1 should be sentenced to a fine. However, there was at the time no reference to regulations issued by the National Road Administration. One such reference was introduced by an amendment to Ordinance 12 January 2012. Is R.G.’s exceeding of the speed limit a criminal offence subject to the liability provision in Chapter 14, paragraph 3 of the Traffic Ordinance § and as a consequence punishable? This case involves the principle of the legality of criminal law. The principle is enshrined in the Swedish Constitution, the Criminal Code and the European Convention of Human Rights (Article 7). The principle concerns a prohibition of the imposition of criminal penalties for an act that was not subject to any penalty when it was committed, a prohibition on analogical application of penal provisions, and a requirement of law to be in writing and sufficiently intelligible and accurate. However, the principle of legality does not preclude that a penalty is interpreted in accordance with recognized principles in order to ascertain its true meaning. Such an interpretation should be done with caution. Given how the liability provision in general was designed with a clear and explicit list of punishable offenses, the provision in the 2008 reform of the regulatory framework surrounding speed limits became inconsistent and imprecise. The Supreme Court underlines that even if there were some inconsistencies in the regulatory framework it seems unlikely that the Government's intention has been to make violations of regulations on a speed limit of 120 km/h legal, unlike violations of the base speed limit of 110 km/h. Even if the offence is not expressly included in regulations, it must be considered to be subject of the liability provision. Against this background, the Supreme Court argues that R.G.'s exceeding of the speed limit of 120 km/h is punishable. However, the fact that R.G.’s exceeding of the speed limit is punishable does not imply that it was correct to impose a fine on him for his offence. The Code of Judicial Procedure (1966:247) enables a police officer to impose penalties for crimes, when the most severe penalty is a fine. not contains provisions more severe penalty than a fine. In 1968 these rules were included into Chapter 48 of the Code in question. Detailed requirements concerning such offences and the size of the fine available in the Prosecutor General's regulations (1999:178). According to paragrah 1 of these regulations fines may be imposed for the offenses listed in the Annexes appended to the regulations. Paragraph 2 state that the fine should be the amount specified in relation to each offense. Each Annex deals with breaches of a specific ordinance. Annex 1 refers to violations of the Traffic Ordinance and includes, inter alia, a box with the title Exceeding the maximum allowable speed. However, at the time, the offense of exceeding a speed limit imposed by the National Road Administration (in accordance to Chapter 9, paragraph 1, section 3 of the Traffic Ordinance) was not included in the Prosecutor General’s regulations. The regulations were amended in 2012 to correct this omission. The interpretative frame for the legality of the imposition of penalty on criminal offences is found in the provisions of Chapter 48, paragraphs 1, 13 and 14 of the Code of Judicial Procedure. It must be related to a criminal offense subject to public prosecution for which no sanction other than a fine is prescribed. In addition, it must only be related to criminal offenses for which the penalty is determined in the manner prescribed in Chapter 48, paragraph 14 of the Code i.e. offences that has been selected by the Prosecutor General in consultation with the National Police Authority and included in the regulations and where the size of the fine is pre-determined. The Supreme Court sums up their argument as follows. R.G.'s driving at 141 kilometer per hour was a violation of the National Road Administration’s regulation issued in accordance to Chapter 9, paragraph 1 of the Traffic Ordinance and as such a criminal offence. This type of offence was omitted in the version of the Prosecutor General's regulations applicable at the time. As the annex to the Prosecutor General's regulations was designed, it was admittedly unclear whether there were legal support for the imposition of a fine for exceeding the speed limit of 120 km/hour. However, there is room to interpret the Regulations so a penalty could be imposed also in such cases. In order to grant a petition for a new trial it must be obvious that the legal provisions used as the basis for the previous ruling are manifestly contrary to the law (Chapter 58 paragraph 2 of the Code of Judicial Procedures). The requirement for obviousness has been expressed so it applies to clear and indisputable errors. The provisions that has been the basis for the decision to impose a penalty on R.G. cannot be regarded as manifestly in contrary to the law. As a consequence there are no opportunities to grant a new trial. The Prosecutor General's appeal must therefore be upheld.
It is not the Supreme Court as such that uses the Charter, but rather two of the judges that deliver a dissenting opinion to the ruling of the Court. They are of the opinion that R.G. should be granted a new trial with reference to the principle of legality. In their dissenting opinion they also add Article 49 of the Charter of Fundamental Rights to the legal support for the principle off legality as follows.
8. The principle of legality also has legal support in Chapter 2, paragraph 10 of the Swedish Constitution (Regeringsformen), paragraph 5 of the Act on the introduction of the Penal Code (Lag om införande av brottsbalken) (1964:163), Article 7 of the ECHR and Article 49 of the Charter of Fundamental Rights of the European Union.
8. Legalitetsprincipen har lagstöd också i 2 kap. 10 § RF, 5 § lagen (1964:163) om införande av brottsbalken, artikel 7 i Europakonventionen och artikel 49 i Europeiska unionens stadga om de grundläggande rättigheterna.