Two lower courts had ruled that the man, a 33-year-old Somali citizen, should be deported after serving a jail sentence for rape, but the Supreme Court overturned this decision while extending his jail sentence by four months. The reason for ruling against deportation was that his ties to Sweden were considered to be strong, although two of the five Supreme Court justices argued the seriousness of the crime outweighed this and that he should be expelled.

The man was first found guilty of rape by Linköping District Court, after he forced himself on a woman he did not know while they both stayed overnight at a mutual friend's apartment.

He was found guilty based on witness statements from the victim and the apartment owner, as well as SMS messages and the fact his DNA was found on the victim.

That court initially sentenced him to one year and ten months in jail, followed by expulsion from Sweden and a ban on returning for the next ten years.

Perpetrators of serious crimes can be expelled from Sweden as part of their punishment if they do not hold Swedish citizenship. If the perpetrator has been resident in Sweden for at least five years, though, Swedish law dictates the court must find that there are “extraordinary reasons” for ordering a deportation.

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“The seriousness of the crime should be taken into consideration, and as a guideline the crime should have a penalty of at least one year of prison for it to be a question of deportation,” Lina Zettergren, a Judge Referee at the Supreme Court with responsibility for preparing the cases and presenting proposals for decisions, told The Local.

“But consideration should also be taken to the foreigner's ties to Swedish society. In the judgment, consideration should be taken to factors such as living conditions, for example if the person has a property, is socially integrated, has learned Swedish, and so on, if the person has children and is in contact with them, if there are other family members, and the length of time the person has spent in Sweden,” Zettergren said.

“The idea behind the requirement of 'extraordinary reasons' [if the perpetrator has been in Sweden for over four or five years] is that there should be a point where a foreigner has the right to feel secure in Sweden. It's a complete judgment where all factors are weighed up, and which factors are decisive depends on the circumstances in the individual case. If the foreigner has a strong tie to Sweden, typically a more serious crime is required for deportation to occur.”

The Swedish Code of Statutes. Photo: Sofia Tanaka / TT / SCANPIX

Asked whether any crimes were considered serious enough that non-Swedes would always be deported, Zettergren said each case is considered individually.

The perpetrator in the Linköping case had been living in Sweden with a residence permit for eight and a half years, and had no family in the country but had been working or studying for most of his time there.

A second ruling from the Göta Court of Appeal upheld the initial judgment by the district court, which had been appealed by the defendant. He said he should not be deported because he belonged to a “persecuted clan” in his home country, but the appeals court confirmed the deportation order.

The case was then taken to the Supreme Court, which found there was no reason to review the man's guilt or the classification of the crime, but chose to allow an appeal of the deportation.

Unlike the two earlier courts, the Supreme Court found that the man's ties to Sweden “do not appear especially weak”, and it therefore overturned the deportation order. The court's decision is likely to set a precedent for other courts in Sweden.

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In the ruling, the Supreme Court noted that the default position in cases where the defendant has lived in Sweden long-term should be not to deport them. Deportation should therefore only be carried out if the reasons in favour of deportation are significant and 'extraordinary reason' for deportation can be  found.

A statement from the court said that the most important factor was the seriousness of the crime, and that murders or organized crime were examples of those which would likely be considered as “extraordinary reasons”. But the perpetrator's background in Sweden was also a factor, so that a criminal who had lived in Sweden for a longer time, and/or had a family and connection to Swedish society would be less likely to be deported.

The court acknowledged in its ruling that there were “clear signs of flaws in his social adaptation to Sweden, partially through earlier criminal behaviour” including convictions for petty drugs offences, driving offences, and causing bodily harm. However, it also noted that he had been engaged in either studies, internships, or employment throughout his time in Sweden and had relatively good knowledge of the language, implying a strong tie to Sweden.

Sweden's Supreme Court. Photo: Sofia Tanaka / TT / SCANPIX

On this basis, the court ruled that “there cannot be considered to be extraordinary reasons” to deport the perpetrator, and overturned the decision to deport him – despite two of the five court justices arguing that he should be deported.

The two justices with dissenting opinions argued that the seriousness of the crime itself was “a severe reason for deportation”, and judged this to be “much stronger than the circumstances that speak against deportation”.

The court extended the man's jail sentence to two years and two months, and also ruled that he must pay the victim damages of 115,000 kronor (approximately $12,070). The victim told the Expressen tabloid that she considered the ruling “completely insane”.

Following Expressen's report of the case, politicians from the far-right Sweden Democrats and right-wing Moderate Party criticized the decision via Twitter. Moderate MP Hanif Bali wrote that “obviously a law change is needed”, while Sweden Democrat Adam Martinnen wrote: “rape is an extraordinarily good reason for deportation, always”.

Asked whether the divided nature of the ruling implied a need for greater clarity in the law, the Supreme Court's Lina Zettergren said that was a question for lawmakers.

Justice Minister Morgan Johansson, a Social Democrat, has repeatedly stated that the “main rule” in cases of foreign criminals should be that they face expulsion. Speaking to Expressen after the judgment on the Linköping case, Johansson said “we want to increase the opportunities to deport [non-Swedes] because of crime”.

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