frsrdg · GT04JO1 · 2005-12-01 00:00:00 — In this case it has even been shown that initially there was no room for Security officers on board the aircraft but that after objections had been raised by Swedish representatives two Swedish officials were allowed to accompany the flight. Of the two selected to do so, one had been assigned no explicit command and the other was a civilian interpreter who could not exercise authority. To sum up, it can be concluded that at airport the Security had already lost control of the enforcement. In reality, the Security officers at the airport relinquished the enforcement to American officials and gave them free hands to exercise public authority. There is no basis in law for conduct of this kind. 3.2 The use of force and coercive measures etc. 3.2.1 The legal framework Convention on the Protection of Human Rights and Fundamental Freedoms (European Convention) has had the force of domestic law in since 1994. Article 3 lays down that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. A definition of the concept of torture may be found in the United Nations Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, which is known as the Torture Convention (see also , Mänskliga rättigheter i europeisk praxis (Human rights in European Praxis), 2002, p. 71 f.). In addition Chapter 2 of the Instrument of Government contains provisions about the fundamental freedoms and rights of citizens. All citizens shall be protected in their relations with the public administration against any physical violation and physical search (Section 6). The expression physical violation refers principally to the use of force against the human body but also includes examination, minor operations such as vaccination or taking blood samples and also similar actions of the kind often referred to as physical examination (Govt. 1975/76:209 p. Physical examination is defined in its turn as an inspection of the surface and interior of the human body and examination of samples taken from the human body (Procedural Code 28.12, second paragraph). Body-search refers to the examination of garments and other items worn and also of bags, packages and other objects that someone is carrying (Procedural Code 28.12, third paragraph). Foreigners in are, unless some other provision is made by legal statute, on the same footing as Swedish citizens in these respects (IG 22.2, second paragraph). The use by the of force and coercive measures implies a restriction of the protection against coercive physical violation and physical search cited above. This protection may only be restricted by law (IG 2:12, first paragraph). The Aliens Act lacks provisions on the use of force and coercive measures in the enforcement of an expulsion order. Instead, when assistance is required in the course of enforcement the provisions that regulate the actions of the in general apply. It should first be pointed out that in all forms of operation, the principle of necessity and proportionality referred to in the first paragraph of Section 8 of the Act (1984:387) must be taken into account. According to this statute, a officer may, in the execution of his official duties, only act in ways that can be justified in terms of the objective of his actions and other circumstances. If coercion has to be used, this may only be in the form and to the extent needed to attain the intended result. The legal basis for the powers of the to use force can be found in Section 10 of the Act. This lays down that a officer, insofar as other methods are ineffectual and it can be justified in view of the circumstances, may use force to discharge his duties, for instance, if he is offered violence or the threat of violence (point 1), if someone who is to be detained, apprehended or in some other way lawfully deprived of attempts to escape or the officer encounters some other form of resistance when enforcing such a deprivation of (point 2), to prevent a criminal act or danger to life, health or valuable property or extensive damage to the environment (point 3), or if the action is needful in other respects for the sake of public order and security and that it is obvious that it cannot be carried out without violence (point 7). The powers of the to restrain individuals are regulated in Section 10a of the Act, together with the first paragraph of Section 15 of the Act on the Treatment of those Detained and Arrested, etc. (1976:371). These provisions permit a detainee to be restrained during transport and on other occasions outside the place of detention whenever this is required for the sake of safety or in order to prevent violent behaviour by the detainee, if other remedies are seen to be ineffectual and when required to safeguard the life and health of the detainee or other individuals. According to Section 10a of the Act, a officer has the same rights to use restraints when he apprehends or restricts the of an individual in some other way. Restraint is normally used to refer to a device that binds the hands or feet together (and , Polislagen (The Act), 4. ed., p. The manual issued by the Prison and states that the following types of restraints may be used: handcuffs, ankle fetters, waist chains, plastic restraints, stretchers and straitjackets. Apart from the areas laid down in these statutes, there are no others, except for the special situations referred to in Chapter 24 of the Criminal Code on the general grounds for exemption from criminal responsibility, in which the may resort to the use of force. The provisions in the Act entitling officers to use force do not apply to foreign officers. It is quite another matter that a foreign officer, like any other individual, is exempt from criminal responsibility if he comes to the assistance of a Swedish officer (see 24.5 of the Criminal Code, cf. as well SOU 1987:14 p. The Act also contains a provision on body-searches. A officer who makes a legal arrest or otherwise apprehends someone or removes them may, in connection with this measure, also conduct a body-search to the extent that this is required for the sake of safety, for instance, so that weapons and other dangerous objects can be impounded (Section 19). The kind of search required for the sake of order or safety when someone has been detained by the is normally referred to in everyday terms as frisking (see and , p. 120 f.). There are, however, no provisions in the Act that provide a legal basis for physical examinations. Chapter 6 of the Aliens Act includes regulations on detention. If an alien is detained and placed in a Criminal Correction facility, detention centre or cell, the rules laid down in Sections 2 and 2a-2c in the Act on the Treatment of those Detained and Arrested, etc. apply to physical searches and physical examinations. (Aliens Act 6.2, second paragraph.) There are no provisions that deal with the rights of officers to wear masks in the course of their operations. Conduct of this kind, with the possible exceptions that may arise in the course of operations by the National Counter-terrorist , is alien to the spirit of regular activities. It has however been considered that in view of the duties of the Security , its officers are often required to use methods that are rarely adopted by the regular . One example that may be cited is that Security officers sometimes have to assume another identity in order to safeguard both themselves and their families from being exposed to threat and other forms of reprisal (see for instance JO 1993/94 p. 88 and SOU 1990:51 p. There are also what are known as the protective regulations for civil (see, for instance, the Act on the Protection of (2004:1100) which came into force on January 1, 2005. This Act enables body-searches to be made in the course of a security check at an airport. Similar regulations were previously contained in the Act on Special Controls at Airports (1970:926).) In the regulations and general guidelines on the enforcement of deportation and expulsion orders by air (FAP 638-1) recently issued by , it is stipulated that if during the enforcement procedure an alien is treated by foreign officials in a way that is obviously incompatible with what is regarded as acceptable in terms of Swedish law, the Swedish officer responsible for the enforcement must intervene without delay. The authorities shall in such cases promptly consider whether the enforcement is to be cancelled (Section 3, cf. also Section 16). One of the general guidelines under Section 3 states that if the treatment of the alien referred to in the regulation is of extremely brief duration and no repetition may be anticipated, the enforcement should not be cancelled. To begin with, I should like to point out that for me it is self-evident that in a democratic state, subject to the rule of law, officers must treat all those who become the object of actions in a humane and dignified . This means that nobody may be subjected to degrading or humiliating treatment in the course of a operation. Among its other provisions, Convention also lays down, as has been pointed out, as an unconditional rule that nobody may be subjected to inhuman or degrading treatment (Article 3). The following adjudication is therefore based on this fundamental acknowledgement of and respect for the freedoms and rights of every individual. As can be seen from the presentation of the legal regulations, there are grounds in law for the use by the of force and to some extent coercive measures in the enforcement of a deportation or expulsion order. Actions of this kind, such as the use of restraints, may not, however, become a matter of routine and in every individual case an appraisal must be made of whether the situation requires recourse to such means. There are, therefore, grounds for studying more closely whether the measures adopted in the case of A. and E.Z. were compatible with Swedish legislation and, if so, whether they were necessary. In this case, it has been revealed that Swedish officers made body-searches of A. and E.Z. when they were apprehended. They were then subjected to a security check at airport conducted by American officials. As has already been made clear, these checks comprised at least the following elements. A. and E.Z. were subjected to body-searches, their clothes were cut to pieces and placed in bags, their hair was thoroughly examined, as were their oral cavities and ears. In addition they were handcuffed and their ankles fettered, dressed in overalls and photographed. Finally loose hoods without holes for their eyes were placed over their heads. A. and E.Z. were then taken out of the station in bare feet and conveyed to the aircraft where they were laid on mattresses to which they were strapped. The hoods, handcuffs and fetters were not removed during the flight to . Where the body-searches are concerned, it can be observed that for the sake of safety, for instance, it is of course a matter of routine to conduct a body-search of individuals when they are apprehended. I therefore have no objection to the body searches made by the Security officers of A. and E.Z. and can also, in view of the regulations and safety requirements that apply to air transport, accept that a second body-search was made immediately before boarding the aircraft. I can also understand that for the sake of safety on board an aircraft, there may be grounds for handcuffing someone during a repatriation. I therefore have no objections to the decision to handcuff A. and E.Z. during the flight to . However, there seems to have been no obvious need for ankle fetters as well. At no stage during the enforcement had A. and E.Z. attempted to resist, either actively or passively, or shown any tendency to want to escape. In addition they were surrounded all the time by a large number of American, Swedish and Egyptian officials. The only incident that took place consisted of the remark E.Z. made at the airport. The inspection of A. and E.Z.s hair and the scrutiny of their oral cavities and ears must be considered to constitute a physical examination. There is no legal support for the use of this kind of coercive measure in this particular case. A. and E.Z. were also made to wear hoods. Actions of this kind are alien to the conduct of the Swedish although, in one or two cases, similar measures have unfortunately been adopted in recently. The response of the Security asserts, as does the memorandum drawn up by 2002, that it is most appropriate to consider the use of hoods on the basis of Section 10 of the Act. In my opinion, there is a great deal to suggest that a measure of this kind cannot be evaluated by reference to this provision but that, instead, there are no regulations that apply. Even if the measure were to be appraised on the basis of Section 10 of the Act, in this case it was manifestly not a necessary element in the performance of official duties (cf. and , p. Moreover, in my judgement, it is patently obvious that the requirements for the use of force laid down in point 7, which the Security refer to in particular, were not fulfilled. In other words, there were no legal grounds for this measure. In this context it may also be pointed out that the UNs general principles for the protection of individuals deprived of their emphasise, inter alia, that detainees may not be deprived of the ability to use their senses, vision or hearing, nor their sense of orientation in time and space. I have no reason to comment on the fact that the American officials were wearing masks other than to point out that, as can be seen from the account of the legal regulations, in principle such conduct cannot be accepted in . It has also been claimed that in the changing room tranquillizers were administered to A. and E.Z. rectally and that they were even made to wear diapers before being dressed in overalls. officers who have been heard, including the two who were present in the changing room, have however stated that they did not at that time observe and were not subsequently informed that this was the case. Their accounts leave, however, some scope for the possibility that these actions may have taken place without their notice. Some support for the belief that drugs were administered coercively can be found in the information given by E.Z. and the entry made by officer in the enforcement log, A. and E.Z. were probably given a tranquilliser by the doctor before take-off. Officer has asserted that the entry was mere speculation on his behalf but has not, in my opinion, been able to provide any reasonable explanation as to what, in this case, his speculation was based on. I am therefore obliged to conclude that the inquiry cannot show with certainty whether a coercive measure such as the forcible administration of drugs did take place or not. The same applies to whether the two men were made to wear diapers. The lack of certainty that therefore prevails on this point is, as far as I can see, one outcome of the shortcomings in the way in which the Security organized the operation. As no Swedish officers even diligently supervised the measures adopted by the foreign officials, it has been impossible subsequently to establish or repudiate the allegations of forcible medication. Even though the inquiry has not, therefore, been able shed light on the circumstances in this respect, I would like to point out that coercive medication is one of the kinds of coercive physical measures referred to in 2.6 of the Instrument of Government and which therefore requires the support of law to be permitted. There is no such support in the Act. In the travaux préparatoires to the legislation, it is specifically pointed out that in a society like , it can never be permissible for the to use psychopharmaceuticals or other drugs in the course of an official enforcement. No support for methods of this kind may be derived from the Act but they should be considered unlawful. In addition, it is stated that this does not exclude the possibility that a court of law, by virtue of the general rule about emergencies in the Criminal Code, may consider it justifiable, in exceptional cases, for a officer to have administered medicine to someone against their will in a situation of extreme emergency. 1983/84:111 p. Coercive medication in the current case would therefore have been unlawful. I also have reason to consider whether the treatment of A. and E.Z. during the enforcement was compatible with the prohibition against torture and inhuman and degrading treatment enshrined in Convention and elsewhere. On this issue I would first like to point out that in both from the Torture Convention and from application by Court of Human Rights of the distinction made in Article 3 of Convention between torture and other forms of unlawful treatment, it is clear that torture is a concept reserved for cases involving the intentional infliction of severe pain or grave suffering intended, for instance, to obtain information or to punish or intimidate (see for example the judgment of Court of Human Rights of 27, 2000, in the case of v. ). I, for my part, do not consider that the treatment to which A. and E.Z. were subjected in and during the flight to can be regarded as torture. For some action to be considered to be in breach of Article 3 in Convention in some other respect, Court of Human Rights has taken the view that the treatment, when all the circumstances have been taken into account, such as how long it lasted, its effect on the physical or mental health of the victim, as well as the victims age and health, must attain a certain level of severity (see for instance the judgment issued on January 18, 1978, in the case of v. the ). In particular, when the issue concerns whether or not some form of treatment is to be considered degrading, the court has taken into account whether the object has been to humiliate the individual concerned and also its effect on the individuals personality. When such treatment has occurred in connection with the deprivation of , it must involve a violation that exceeds the humiliation inherent in arrest or detention (see for instance the judgment of 12, 2003, in the case of v. ). It should be noted in particular that in the case mentioned the court considered that the circumstance that for security reasons was blindfolded and handcuffed during a flight from to did not constitute a violation of Article 3 of Convention. Nevertheless, I consider that the treatment to which A. and E.Z. were subjected, from the moment when their clothes were cut up and removed and they were hooded at airport until they arrived in , still wearing hoods, fettered and strapped to mattresses, must in its entirety be characterized as degrading. The possibility cannot be excluded that this treatment, even if it may have been prompted mainly for reasons of security, could also have been intended to humiliate. In my opinion therefore, questions could be raised as to whether the enforcement was implemented in a that constituted a breach of Article 3 of Convention. Irrespective of whether or not this was the case, it is nevertheless clear that in the end the enforcement was carried out in an inhuman and therefore unacceptable . I have previously observed that there was no basis in law for allowing the American officials to exercise public authority on Swedish territory. should have reacted, therefore, as I have already pointed out, when a demand was made on , 2001, to be allowed to conduct a security check. As has been made clear, the representatives of the Security remained passive on this issue. The officers present at airport were therefore surprised by the extent of the examinations. For this reason - and in view of the rapidity with which the examinations were made - I can understand that the Security officers made no analysis of the legality of the measures adopted. They should, however, even without such an analysis, have realized that there were grounds for intervening to prevent the inhuman treatment that A. and E.Z. were being subjected to. Certain other circumstances may be assumed to have played a role when the Security allowed these events to occur. To begin with, no officer had been assigned operational command at airport. As a result none of the Swedish officers present - all of whom were of relatively junior rank - considered that they were ultimately responsible for the enforcement. has also referred to this shortcoming. It cannot be excluded that an operational commander with a relatively senior rank could have influenced the course of events. Instead, the officers were remarkably submissive to the American officials. The unclear organization of the Swedish team may also have contributed to give the Americans the impression that there was no need to give the Security more detailed information about what was about to happen. Secondly, it cannot be excluded, either, that the Security officers present may have been burdened by their knowledge that the Government had decided on enforcement without delay and that the Ministry for Foreign Affairs, for instance, considered it important for enforcement to take place on the day the decision had been made. It is mainly against this background that I have decided, albeit with some hesitation, to take no further action than to express my criticism in this adjudication. In the public debate, information has been offered to suggest that what occurred was the first American transport of prisoners in the hunt for presumed terrorists after , 2001, and that the American officials were part of a special commando that undertook what have been called extraordinary renditions. This term is used to refer to a process in which individuals suspected of being terrorists are secretly and with no basis in law taken to certain states that cooperate with the so that they can be interrogated there in a brutal . For instance, in of Command - the Road from 9/11 to AbuGhraib, 2004, . Hersh alleges of the events at airport that American operatives participated in what amounted to the kidnapping of two Egyptians (p. My impression is that the enforcement involving A. and E.Z. cannot be regarded as a rendition of this kind. It is important to remember that the Security were conducting certain investigations and surveillance, that studied the applications for asylum submitted by the two men and that, above all, the Government rejected, by virtue of the Aliens Act, A. and E.Z.s applications for and labour permits and decided that the two men were to be expelled to their native country. This was not therefore a case in which American agents alone removed the two men. In international co-operation it is important to consider the legal aspects and restrictions that apply. It is obvious that the Security did not pay sufficient consideration to the difficulties that could be linked to acceptance of the American offer. In this adjudication I have accounted for considerable shortcomings in the way in which the Security dealt with the enforcement. In my opinion, the most striking deficiency is the passivity shown by the Security throughout. This failing, combined with the lack of any designated operational commander at airport, resulted, in my view, in the Security losing control of the way in which events developed. I have also pointed out that A. and E.Z. were subjected to inhuman treatment. I would like to emphasize that treatment of this kind is alien to Swedish procedures and cannot be tolerated. Foreign officials who assist Swedish officers in are not, in principle, entitled to use force and may not resort to other forms of coercion. If, nevertheless, foreign officials take such measures or, as in this case, go so far as to act in a way that is not acceptable according to Swedish legal standards, Swedish officers must intervene to put a stop to this without delay.