frsrdg · GS04JO1 · 2005-01-01 00:00:00 — If a case or issue in which a court has ruled in the referred to here is pursued further, the superi- or court must review this secrecy when it terminates its proceedings in the case or issue. When the detention hearing began at the City Court, C. stated that he did not want his identity to be disclosed. Court permitted C. to listen to proceedings from an adjacent room while the hearing remained open to the B I L A G A 10 20 04 /05 :JO1 public, i.e. when the charges and the response of the defendant were heard and when the court announced its decision. The response submitted by the City Court reveals that the court found that Cs name constituted information of the kind subject to secrecy by virtue of Sections 9.17 and 12.1 of the Sec- recy Act and that as it was at the same time important to allow the public access, as far as possible, to the proceedings the only alternative to the loud- speaker relay was to hold the entire hearing in camera. As the principle of public access to hearings also applies to detention hea- rings, the court should be careful to order hearings in camera only during those sections of the proceedings where this is justified (cf. , Offent- lighet och sekretess i rättegång,(Public Access and Secrecy at Trials) p. 157 and the Parliamentary Ombudsmens Annual Report for 1985/86, p. It was therefore correct for the City Court to allow public access to some sec- tions of the detention hearing. This public access was vitiated to some extent, however, by the decision to allow the loudspeaker relay. Loudspeaker relay is not a term used in the Procedural Code but is used to describe the possibility open to a court of law of permitting an individual to listen to testimony by means of a loudspeaker in an adjacent room. The legal basis for this measure can be found, for instance, in Section 36.18 and the first paragraph of Section 37.3 of the Procedural Code. These provisions are intended for situations in which it can be assumed that fear or some other reason will prevent an individual from telling the truth freely in the presence of a party or that one party or a spectator will obstruct testimony. In this kind of situation the court may prohibit one of the parties or a spectator from being present during an examination. Testimony that has been given in the absence of one of the parties for this reason should be recounted to the extent required on their return. An alternative to this is to arrange a loudspeaker relay for the individual who is not present. As pointed out above, an order to make an exception from the principle of public access to hearings in a court of law must be based on a legal provision. As the City Court has also pointed out in its response, there were no grounds in law for permitting C. to be absent from the detention hearing in order to ensure that his identity remained secret. There was, in other words, no scope for such a pragmatic resolution of the conflict envisaged by the court. In- stead, the court was obliged to decide whether to hold the hearing in public or if the circumstances justified a hearing in camera as provided in Section 5.1 of the Procedural Code. Court ruled that, pursuant to Sections 5.1, 5.7, 9.17 and 2.1 & 2, of the Secrecy Act, the hearing was to be held to some extent in camera. I have no reason to question this decision. As has already been mentioned, the City Court considered that information about Cs name was subject to the secrecy laid down in Section 9.17 of the Secrecy Act. In the court record of the hearing C. is referred to consistently as 2 004 /0 5:JO1 B I L A G A 10 secret C or C. The identity of the detainee was not therefore disclosed in its decision. Section 9.17 of the Secrecy Act lays down regulations to protect the interests of individuals during preliminary investigations, for instance. These stipulate that secrecy is to apply to information about the personal or financial circumstances of individuals unless it is clear that this information may be divulged without occasioning harm or injury to these individuals or anyone close to them. Names or social registration numbers are included in the con- cept of personal circumstances and may therefore be subject to secrecy in accordance with these provisions. It is also clear that a suspect or someone close to a suspect could suffer harm should his or her name or social registra- tion number be divulged during a preliminary investigation. During a pre- liminary investigation, moreover, information about the name or social regis- tration number of a suspect may be subject to secrecy by virtue of other regu- lations, for instance to avoid jeopardising the investigation, as laid down in the first paragraph of Section 5.1 of the Secrecy Act. The issue that arises in this case is to what extent information about the identity of a suspect may be subject to secrecy in a decision issued by a court of law. The provisions of the second paragraph of Section 12.4 of the Secrecy Act lay down that a ruling that secrecy should continue to apply to information submitted in a case or issue heard or adjudicated by a court may not include the final judgment or the corresponding section of some other decision unless the safety of the realm or some other interest of particular gravity renders it imperative. Moreover, if a case concerns the prosecution of an individual on a criminal charge, no secrecy ruling may be made about the final judgment or the corresponding section of some other decision unless a state of war exists, or the threat of war or some other exceptional circumstances resulting from warfare. In the travaux préparatoires to the Secrecy Act it is stated that from the point of view of the rule of law it is very important for the proceedings and decisions of the courts to be open to public scrutiny as far as possible (Government 1979/80:2 Section A, p. In the case of final judgments or the corresponding sections of other court decisions that are not judgments, public access is a particularly important safeguard for legal security. For this reason, the possibilities of imposing secrecy on these elements in the judg- ments and decisions issued by courts of law should be severely restricted (p. In the travaux préparatoires to Section 12.4 of the Secrecy Act, no speci- fic attention is paid to what is meant by the wording final judgment or the corresponding section of some other decision. The question is how to in- terpret this wording in proceedings involving a criminal offence. The first paragraph of Section 30.5 of the Procedural Code lays down that a judgment in a criminal case is to specify in separate sections the court, the time and place of pronouncement of the judgment; the parties, their attorneys or counsel, and the defence counsel for the defendant; the final judgment; the pleas of the parties and the circumstances on which they are based, and rea- B I L A G A 10 20 04 /05 :JO1 sonning in support of the judgment, including a statement of what has been proved in the case. The wording final judgment in the Procedural Code has therefore a very restricted meaning. This is confirmed by the statement in the commentary on the Procedural Code that in its final judgment the court is to indicate both the applicable statutes and the legal specification of the offence (Fitger, (The Procedural Code), Vol. 2, p. A final judgment in the sense intended in the first paragraph of Section 30.5 of the Procedural Code merely contains, therefore, specification of the relevant statutes, legal designation of the criminal offence and the sentence etc. in the way they are listed in a conviction and not, for instance, information about the identity of the defendant. However, in my opinion the legislators cannot have intended the wording final judgment or the corresponding section of some other decision in Sec- tion 12.4 of the Secrecy Act to be interpreted in such a narrowly technical way as suggested in the preceding paragraph. In construing the provision we must take into account that the intention of this restriction of the power of the courts to impose secrecy is to guarantee public scrutiny of their decisions and the resultant protection this offers of the legal rights of individuals. If this intention is to be fulfilled, the identification in a judgment in a cri- minal case of the defendant must be considered the kind of information inclu- ded in the wording final judgment or the corresponding section of some other decision in the second paragraph of Section 12.4 of the Secrecy Act. It is evident that the requirements of public access and legal security would not be fulfilled if all that could be learnt from the public sections of a judgment in a criminal case was that an unidentified individual had been convicted of a certain crime and sentenced to a certain penalty. Interest in the transparency of criminal proceedings with regard to the identity of the defendant is in actual fact satisfied in other ways as well. secrecy concerning the identity of the defendant required to avoid jeopardi- sing the preliminary investigation, as laid down in the first paragraph of Sec- tion 5.1 of the Secrecy Act, may be considered to come to an end when char- ges are brought. The secrecy required during the preliminary investigation to protect the defendants personal and financial circumstances stipulated in the first paragraph of Section 9.17 of the Secrecy Act ceases to apply with cer- tain specific exceptions by virtue of Section 9.18 of the same act when the information is submitted to a court in connection with prosecution. It can also be mentioned that the specific secrecy stipulated explicitly by the wording of Section 9.16 of the Secrecy Act during the hearing of certain types of cases by courts of law does not apply to the identity of the defendant. However as this case does not involve judgments but a detention order, the question arises of what is meant in the second paragraph of Section 12.4 of the Secrecy Act by the wording the corresponding section of some other decision. To begin with, there can be no doubt that the wording includes final de- cisions. If the provision had been intended to apply, in addition to final judgements, only to such decisions it could however have been expressed in a 2 004 /0 5:JO1 B I L A G A 10 The most appropriate interpretation would seem to be that the legislators intended the provision to include at least some non-final decisions. There are occasions when in formulating a ruling on the appointment of a public defence counsel during a preliminary inquiry a court will avoid indica- ting the identity of the defendant in the decision itself for the sake of their integrity. In my opinion it cannot justifiably be claimed that this practice constitutes an unacceptable violation of the principle of public access or legal rights. The situation is, however, different when dealing with the decision of a court that deprives an individual of . Unlike the appointment of a pub- lic counsel, a detention order involves a coercive legal measure for the indivi- dual concerned. In addition, we should bear in mind that the decision to appo- int a public counsel is normally made by a judge in chambers whereas the decision to issue a detention order must, for reasons of legal security, be made at a hearing. As my presentation of the legal regulations has made clear, the fundamental principle is that hearings in courts of law must be public. It fol- lows, therefore, that the principle of public access must be accorded particular weight where decisions made at court hearings are concerned. By virtue of Section 8 of Chapter 2 of the Instrument of Government and Article 5 of Convention, all citizens are protected against depri- vation of their by a public authority. To conceal the identity of de- tainees would therefore obviously involve a drastic restriction of the possibili- ties of monitoring the legal grounds on which detention orders are based. The importance attached by the legislature to the principle that deprivation of must always be a matter of public record can be found for instance in the provision in the first paragraph of Section 7.2 of the Secrecy Act. This lays down that the secrecy applying to information on the state of health and personal circumstances of individuals in the health and services does not cover decisions made in accordance with the legislation on compulsory mental care or forensic care that involve the deprivation of . One of the reasons for this exception from the secrecy that normally applies in the health and services is that it is considered more important to enable scrutiny of compulsory mental care than to protect the integrity of individuals. The travaux préparatoires relating to this provision contain the following comments. On the whole the health and services presuppose volun- tary participation, but regulations in specific statutes may involve some de- gree of compulsory treatment. In the memorandum on which the drafting of the Secrecy Act was based, it was stated that for the sake of legal security and public scrutiny less stringent secrecy should apply to cases involving coercive measures based on such regulations than otherwise provided. It was of par- ticular importance according to the memorandum for cases involving depriva- tion of not to be decided in secret. Some criticism of this standpoint was expressed in the responses to the draft when circulated. However, the Minister responsible expressed the view that it was important to uphold the right of public access when measures against individuals were concerned in these cases. He therefore recommended, in accordance with the proposal in B I L A G A 10 20 04 /05 :JO1 the memorandum, that decisions of the current parole boards, decision- making boards and psychiatric boards as well as decisions made in the social services about the compulsory care of individuals should be open to the public (Govt. 1979/80:2, Vol. A, p. According to another statement, this was also to apply to cases in the Health and involving measures leading to the deprivation of (p. Another example in which the principles of public access and legal securi- ty can be considered to outweigh concern for the protection of the integrity of the individual can be found in the provisions on temporary custody in the second paragraph of Section 13 of the Act (1984:387). Point 3 of the first paragraph of Section 9.18 of the Secrecy Act states that secrecy as laid down in the first paragraph of section 9.17 does not apply to information about temporary custody of this kind. The reason is that for the sake of legal security great importance is attached to ensuring that decisions on temporary custody are open to public scrutiny (et.al., Sekretesslagen, En kom- mentar [The Secrecy Act. A Commentary], p. In my opinion it is natural that the provisions in the second paragraph of Section 12.4 of the Secrecy Act also apply to non-final court decisions that in- volve the deprivation of an individuals . For reasons that correspond to those accounted for here concerning deprivation of in the health and services and temporary custody as laid down in the Act, the provision should be construed as meaning that the sections of a decision to which secrecy may not apply are also those containing explicit information about the identity of the individual deprived of . There can be no doubt that applying the provision in this way best accords with the principle of pub- lic access that is of fundamental significance for judicial proceedings in coun- tries where the rule of law prevails. In addition to the arguments presented here, it could also be pointed out that a detention order that does not identify the detainee cannot be enforced. Should it be preferred to identify the detainee in a separate annex to the deci- sion, this must therefore also be considered to form an inseparable part of the detention order, which from the point of view of secrecy cannot be treated differently from its other sections. To sum up, therefore, it is my opinion that the provisions of the second pa- ragraph of Section 12.4 of the Secrecy Act make it impossible to invoke, for instance, Sections 5.1 or 9.17 of the same act to impose secrecy with regard to the identity of the defendant in a decision that will result in his or her deten- tion. The expressed of the defendant that his or her identity should not be divulged is of no significance in this context. How the law stands in this respect can , however, be considered totally clear, and I therefore see no reason to criticize the City Court for its treatment of the issues discussed here. The Court of Appeal At the request of the prosecutor, before the defendant had presented his plea and the prosecutor stated his response, the Court of Appeal had already ruled that the detention hearing would be held in camera. The reasons for this are 2 004 /0 5:JO1 B I L A G A 10 not made clear in its record of the hearing. From the response submitted by the Court of Appeal, however, the most immediate explanation is that it was for the sake of the secrecy of the investigation, as laid down in Section 5.1 of the Secrecy Act. The hearing was opened to the public again when the court announced its decision. In this decision, the Court of Appeal identifies C. both by name and by his social registration number. In view of what I have already said about the City Courts treatment of the issue of secrecy with regard to Cs identity, I consider that the Court of Appeal was correct in iden- tifying him in its decision. The Court of Appeal was of course not bound by the ruling of the City Court pursuant to Section 5.4 of the Procedural Code that information about the identity of C. submitted during its hearing was not to be divulged. As stated by the Court of Appeal, no specific decision was required to revoke the secrecy concerning information about Cs identity (cf. the first paragraph of Section 12.3 and the first paragraph of Section 12.4 of the Secrecy Act). As I have stated above, the courts should be careful to hold only those sec- tions of hearings in camera for which it is really justifiable. However, I see no reason to express any criticism of the Court of Appeal in this respect. I would like to point out, however, that the reason for ruling that a hearing is to be held in camera should be included in the record or any other report of the hearing (see the first paragraph of Section 6.3 of the Procedural Code). Recently I have noticed that courts have, on a number of occasions, concealed the identity of the defendant in detention orders. In her book Sekretess inom rättsväsendet (Secrecy in the ) has pro- vided examples of how it is possible to word the records of detention hearings and decisions when the identity of the defendant cannot be revealed (p. The response submitted by the of Appeal in this case indicates, on the other hand, that the court did not consider that it would be possible not to disclose the name of the detainee in this particular detention order. In other words, there are different opinions on this issue. Arguments could, of course, be presented particularly in the light of the introduction of what has been termed the converse requisite of injury in Sec- tion 9.17 of the Secrecy Act for the viewpoint that solicitude for the integri- ty of suspects in preliminary inquiries justifies their names secret in detention orders. Solicitude of this kind in individual cases must, however, be balanced against the principle that public scrutiny of judicial proceedings is required to ensure legal security in a state subject to the rule of law. In my opinion, greater weight must be ascribed to the protection provided by public scrutiny of the legal rights of individuals in cases such as the one dealt with here than solicitude for their personal integrity. As I have indicated above, the legal situation with regard to the application of the second paragraph of Section 12.4 of the Secrecy Act in detention hea- rings is not however completely clear. In my opinion it would be appropriate to raise this issue in connection with the review of the Secrecy Act that is B I L A G A 10 20 04 /05 :JO1 currently taking place. I am therefore submitting a copy of this adjudication to the and . 3.2 An inquiry initiated by the Parliamentary Ombudsmen into the action of a school in undertaking searches of pupils bags and lockers and whether these measures contravened the provisions of the second sentence of Article 6 of Chapter 2 of the Instrument of Government concerning protection against physical searches, house searches and similar encroachments On , 2004 the Parliamentary Ombudsman, , issued an adju- dication with the following contents. Initiation of the inquiry An article on the home page of on 28, 2002, contained a report of an event that took place at in the local authority of on Friday 24, 2002. According to the article, a search of pupils bags had been organised by the school administrators. In a few cases wallets had also been searched. The aim of the searches was to discover balloons and water pistols. Games involving water had taken place at the end of previous school years. No pupil was allowed into the school unless they had displayed the contents of their bags. A note was made of the names of those refusing to do so and they were later required to speak to the principal. A search of stu- dent lockers had also taken place after an anonymous tip-off that drugs were to be found in the school. to launch an inquiry and to request a statement from in the local authority of . The official response submitted by the board (the majority) consisted of a statement sig- ned by the Director of Education, . His statement contained the following. The background to the events that took place on Friday 24, 2002 is described in the letter sent by the Principal, , to the parents and guardians of the pupils (see below, Parliamentary Ombudsmans comment). There is no reason not to credit this description. The principals letter also presents the justification for the schools ac- tions. There are no reasons for not accepting this justification. The admi- nistrators of took the measures considered appropriate to protect pupils and staff from being the victims of a water battle. In connection with the information provided by the principal on the Locker search it should be pointed out that there was a suspicion that narcotic substances were to be found in the lockers of one or more pupils. In the material submitted as a basis for the official response, which had been signed by the principal at that time, , the follo- wing could be found. 2 004 /0 5:JO1 B I L A G A 10 published the following article on 28, 2002, Pupils protest against searches. Our responses to the allegations made in the article can be found below: In the article it is alleged that nobody was admitted to the school un- less they had revealed the contents of their school bags. The letter sent to the pupils homes (see below, Parliamentary Ombudsmans comment) stated that no pupil was refused admittance to the school. Even pupils who refused to open their bags were admitted. Hauled before the principal The pupils 9 in number who refused to reveal the contents of their bags were asked to wait outside and speak to a teacher, who explained why this measure had been adopted. The names of these 9 pupils were recorded so that discussions could be arranged with their . No pupil has come forward to confirm that any teacher also searched wallets. The pupils were asked to open their bags themselves and display what they contained. The pupils in grade 8 were asked to open their lockers under the supervi- sion of two of the caretakers. Only pupils were allowed to touch the con- tents of the lockers. No pupil refused to open her or his locker. Nothing suspicious was encountered in the lockers. We had received a false alarm.