On 1 July new penalty provisions for the breach of public records regulations came into effect in Sweden. Breach of public records regulations can arise when an individual provides incorrect details or if they do not fulfil their notification obligation in the case of, for example, a move from Sweden.
According to the Government, public records are of major importance to a large number of functions in society. This places special demands on ensuring the correctness of the details registered in the public records. The public records database comprises a central function in the work of a number of authorities in their daily processing of queries and matters, and the quality of the database should, therefore, be protected by strong regulations. The purpose of the new penalty provisions is that they are to have a preventive effect which will lead to better decision-making information/documentation for the authorities as the details in the public records will be of a higher quality than is currently the case.
Premises for levying of penalties
By incorrect detail is meant an incorrect or incomplete detail provided in fulfilling the obligation of information/notification. The regulations cover both written and verbal information, regardless of the form in which such information has been presented.
Penalty provisions also apply to an individual failing to fulfil the notification obligation when changing their residence within Sweden, with a move to Sweden or with a move from Sweden. In such situations, an individual has the obligation to notify the Swedish Tax Agency according to the time limits in effect.
According to the new penalty provisions, only intentional actions will be considered to be criminal. In other words, it is to be a question of behavior implying that an individual intentionally presents incorrect details in their registration of information in the public records or that an individual intentionally neglects to comply with the notification obligation stipulated in the public records regulations, for example, in conjunction with a move from Sweden.
A further premise for an action to be seen to be criminal in this context is that there is a real danger that the public records database will not reflect actual circumstances. According to the Government, one example of such a situation is if the incorrect detail would probably not be identified in the course of the usual, routine controls being undertaken by the public record authority.
A person committing a breach of public records regulations risks being levied fines or receiving a prison sentence of a maximum of six months. If the crime is considered to be a felony, the individual can be sentenced to prison for a maximum of two years. When the severity of the offence is to be assessed, all circumstances are to be considered. According to the Government, the crime is to be deemed to comprise a felony if, in the assessment, it can be seen to have been undertaken systematically or on a large scale, or if it can, otherwise, be seen to comprise a felony. An example, here, can be when a person has obtained a number of false identities and tries to register these different identities in the public records.
If a breach, in this context, is seen to be very limited in nature, the individual committing it incurs no responsibility. However, in the preparatory work to the regulations, the Government stated that the possibility of deeming a breach to be very limited in nature should be very small.
The new penalty provisions came into effect on 1 July 2018 and individuals can be sentenced to a breach of public records regulations as regards registration of incorrect details only for details presented to the Tax Agency on that date or later. When it comes to negligence in notification of changed details, penalty provisions can apply only to details remaining on, or which are registered after, that date, that is, 1 July 2018.
Punitive sanctions for individuals to fulfil their notification obligation were in effect in Sweden up until 1 January 2014. However, those regulations did not address those cases in which incorrect details were registered. In other words, penalties in the form of fines or prison sentences in conjunction with a breach of public records regulations are not new in Sweden.
Just as the Government states in its preparatory work to the new regulations, there are a number of different types of details in the public record database which are important to many parts of society, including, payments made from the welfare system, for example, child benefits. The authorities assume that the registered details are correct, which can result in major consequences if they are, in fact, incorrect. Against this background, the penalty provisions fill a function in the form of a preventive measure and also serve to deal with unacceptable behaviour in this context.
However, in line with a number of the consultation replies, we believe that a more detailed delineation as to the actions which are to incur penalties and as regards those actions which comprise acceptable deviations and, therefore, should not be subject to penalties, is lacking. According to our view, it is not clear as to what is seen to comprise a minor offence, a criminal offence or a felony. Considering that negligence is not sufficient to incur a penalty, the degree of crime to be seen to apply is particularly unclear for a person failing to fulfill their notification obligation. Our hope is that future legal practice will clarify this matter.
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