frsrdg · GT04JO1 · 2005-12-01 00:00:00 — One individual had a clear memory of talking to A.A. on some occasion before the meeting, who then mentioned that the Security could not arrange Swedish transport at such short notice and therefore had to try to get hold of a foreign plane. It is likely that the Foreign Minister had been informed to this effect prior to the meeting so that she would be ready for the question. The Foreign Minister had, to the best of his recollection, no opinion about who should undertake the transport. He does not remember whether they discussed an aircraft of any particular nationality but was fairly convinced that the Foreign Minister would at least have raised her eyebrows considerably if had reported that it was to be an American plane. The same official also made a note that after the enforcement A.A. had rung to report that all had gone well but that the plane had turned out to be American and not Egyptian. Overall assessment of the information provided gave, according to the Ministry for Foreign Affairs, no support for the claim that during the presentation the Security had stated that the enforcement would take place using an American aircraft or with American participation. On the other hand, the information could suggest that American help would be provided in arranging slots for the flight. In addition, it was also pointed out that different information cultures were involved. After this presentation the Security contacted the American intelligence service. 2.4.3 December 18, 2001, the day of enforcement At lunchtime on Tuesday , 2001, Y the security officer who had planned the enforcement met American officials at airport. During the meeting he was informed that American security personnel would be on the plane, which was expected to land at at about 9 p.m. The Americans also stated that there was no room on the aircraft for Swedish officers. Officer has stated that he emphasized that this was our enforcement so we have to go along as well. The Americans then arranged for Security officers to on the flight. During the meeting it was also said that the security personnel on the plane might be wearing hoods and that they wished to conduct a security check of A. and E.Z. before they boarded the plane. Without this examination the men could not be transported on the plane. According to Y this involved a body-search; no other procedures were discussed. As the Americans preferably wanted access to a room in which to perform the security check, the unit responsible for passport control at airport was approached and it was agreed that the checks could be carried out there. Officer contacted A.A. to inform him that the American officials wanted to conduct their own security check at . According to Y, A.A. had no objection to this. A.A. has stated that he probably was contacted on this matter but that he has no memory of it happening. He has also said that purely hypothetically he probably considered it was relatively OK to conduct a security check before permitting the Egyptians to board the aircraft but obviously under the direction of or with the participation, as it were, of Swedish officers. Later that day the Government decided, pursuant to the Aliens Act, to reject the applications of A. and E.Z. for and labour permits and that the two men were to be expelled. In addition it was decided that the Security were to enforce the expulsions without delay and that the destination was to be . According to the Security journal in the case file, notification of the Governments decision was received at 3.10 p.m. As the officer with overall responsibility for the case, A.A., remained at Security headquarters in for the entire day. At 4.43 p.m. he decided that A. and E.Z. were to be apprehended. At the request of the Security , decided that E.Z., who was in , could be placed in a detention centre or a cell until enforcement could take place. The grounds cited for this request involved both reasons of security and logistical considerations. At about the same time the units were alerted that were to apprehend the deportees, who were both, as has previously been pointed out, under surveillance. apprehended A. relatively quickly at a bus stop in . A body search was carried out but no weapons or other dangerous objects were discovered. A. was informed of the decision in his own language, placed in a vehicle and driven to airport. According to the journal entry, A. was apprehended and informed at 4.55 p.m. No coercion was required during the apprehension nor was A. handcuffed during the journey to . The medication needed by A. for his stomach problems was also procured from . The National Counter-terrorist apprehended E.Z. at about 5 p.m. at his workplace in . He was then taken to the , where he was detained until transport to airport could be arranged. A body search was also made of E.Z. and he was informed of the Governments decision in his own language. After a few hours E.Z. was taken to by the National Counter-terrorist . At this time he was in handcuffs. However, no other coercive measures seem to have been invoked during his apprehension. According to a log entry by officer dated , 2001, about the transport of A. and E.Z., the two vehicles arrived at airport at 8.20 p.m. and 8.30 p.m. After they had been guided into the restricted area of the airport by authorized staff, the vehicles were parked outside the airport station, where they then waited for some time. According to one Security officer, . became indignant when he understood that he had been taken to an airport and one of his remarks in his own language was that there would be bloodshed. At this time there were five Security officers at the airport, among them officers X and Y. None of these five held senior rank, nor had any of them been assigned command of the operation. The American officials that Y had previously met during the day also arrived at the airport. Their task was to ensure that everything took place as agreed and they remained in the background all the time. In addition, , an officer of the Border , and some members of the National Counter-terrorist and officers from were also present. Just before 9 p.m. the American plane touched down. Officer went to speak to the occupants of the plane. These included, in addition to its crew, a security team of seven or eight, among them a doctor and two Egyptian officials. Officer informed the American officials that A. and E.Z. were waiting in the vehicles parked in front of the station and the Americans were taken to them. The security team, all of whom were disguised by hoods around their heads, then went up to the vehicles in which A. and E.Z. One of the men was taken first to the station by the team. Inside the station, in a small changing room, the American officials conducted what they had referred to as a security check. According to reports, a doctor was present in the changing room. When the check had been completed, the second man was sent for and the same procedure repeated. The inquiry has revealed that this security check comprised at least the following. A. and E.Z. were subjected to a body search, 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, each was then dressed in an overall 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 led to the aircraft. In addition, K.J. has reported that E.Z. said that the security team had forced him to lean forwards in the changing room and he had then felt some object being inserted into his anal cavity. Afterwards he was equipped with a diaper. According to K.J., E.Z. then felt , as if all the muscles in his body were slack. was, however, fully conscious for the entire journey. has added that E.Z. was blindfolded and placed in a hood and also forced to lie in an uncomfortable position on board the aircraft. Officer has stated that he has the impression that he asked two of his fellow-officers to keep an eye on the two security cheks so that they had some grasp as it were of what was going on. There was only room for a very few people in the changing room. While the security cheks were taking place, Y himself was standing some distance away and could not see what was happening. The two Security employees, a officer and a civilian interpreter, who were with the security team in the changing room have stated that they did not see suppositories being administered to A. and E.Z. or diapers being used. Their information reveals, however, that the changing room was very crowded and so they had difficulty in observing what was going on for the entire time. officer says that because it was so crowded he left the changing room after only a short time. He did not, therefore, even see the garments being cut to pieces. The interpreter says that he was present for the entire time but that when E.Z. had been undressed he turned away for about 20 seconds. When he looked back, . was in principle fully clothed. According to both witnesses, the security team conducted the security inspection rapidly, efficiently and professionally. The members of the team did not speak to each other but communicated using hand signals. did any of the other Security officials in attendance at state that they had noticed or been informed that A. and E.Z. had been administered suppositories or equipped with diapers. The two men were then taken to the aircraft. Just before 10 p.m. the plane took off from for the flight to . Two representatives of the Security were on board the plane: officer and the civilian interpreter. The original intention had been for three people to accompany the plane to but late in the day they were informed by the captain of the plane that there was only room for two from the . A. and E.Z. were placed at the rear of the plane, each lying on a mattress to which they were strapped. Their handcuffs, ankle fetters and hoods were not removed during the flight to . The transport log drawn up by officer contains the following entry: They were kept under observation for the entire time and the guards were changed every other hour. The doctor in the escort inspected them all the time (A. and E.Z. were probably given a tranquilliser by the doctor before take-off). According to officer these notes in the log should be regarded as his speculations, as this is what one could as a doctor was with them. He did not, however, see this taking place. Officer also wrote a memorandum dated , 2001 about the measures adopted in connection with the expulsion. It contained the information that the body-search at the airport and the use of handcuffs and fetters was at the express order of the captain of the aircraft. In addition, it was noted that the explanation for requiring A. and E.Z. to wear hoods was that this was a policy that had been laid down on the basis of the events of , 2001 about the transport of deportees with terrorist links. At about 3 a.m. the plane landed at . A. and E.Z. disembarked and were received by Egyptian officials. They were then driven off in a transit bus. At this point the Security officers considered that the enforcement had been completed. On their return to , a meeting was held at Security headquarters about the enforcement. Those present at this meeting included officer , A.A. and M.L. The meeting was informed, for instance, that the Egyptians had been required to wear hoods. According to M.L. there may also have been discussion of the use of diapers and that one of the Egyptians was suffering from stomach problems, which was why this was needed. She has, however, pointed out that she is not certain on this point. A.A. has also said that he is uncertain about what was discussed at the meeting but believes that the diapers and the medication were raised in view of the entry on tranquillisers in officer log of the journey. Officer then reported the case to J.D. As has previously been noted, in February 2002 drew up a memorandum on the expulsion. In it he states, inter alia, that he can find no grounds for criticizing those involved in the expulsion. This memorandum was submitted to the , which, on , 2002, conducted a judicial appraisal of the way in which the Security had dealt with the enforcement. The accepted the Security procedures, in principle, and noted that the Ministrys assessment concurred with the judgement expressed by J.D. 2.5 The Parliamentary Ombudsmans referral of the case to the Security The case was referred to the Security with the request for a response on the following issues. What legal grounds are there for allowing foreign officials to assist Swedish officers in connection with the enforcement of a deportation or expulsion order and for permitting them to use coercive measures on Swedish territory? What appraisal was made of these issues by the Security in this case? What legal grounds are there for the use of force or coercion in the enforcement of a deportation or expulsion order (repatriation)? the coercive measures invoked in the case in question necessary and acceptable? What assessment has been made by the Security of the conduct of its officers on this occasion? Had command of the enforcement been assigned to any of the Swedish officers present at airport, i.e. could any officer be considered to have operational command? If not, for what reason had command not been assigned? What judgement has been made by the Security on the question of who was in fact in control of the enforcement from the arrival of the two Egyptians at airport? 2.6 The response of the Security submitted a response to which were attached written statements by M.L. and A.A. and also officers X and Y (whose statements have been omitted). After beginning with an account of the legal provisions, K.B. went on to state the following. officers who carried out the enforcement have been questioned by the Parliamentary Ombudsman in this case and provided information that deals with the issues raised from different perspectives. In this response from the Security I have enabled these officers to submit additional information on which assessment of the questions raised by the Parliamentary Ombudsman may be based. The statements they have submitted are attached to this response. Two officers have informed me that they have nothing to add to what they have previously said. The Director General at the time, , has not submitted any further statement. This, of course, makes it difficult for me now, three years later, to undertake renewed review of the appraisals made of the issues raised by the Parliamentary Ombudsman by officers at the time of the enforcement. has, in the memorandum submitted by J.D. to the on the circumstances of the enforcement, undertaken an appraisal of the case in question in accordance with the issues raised by the Parliamentary Ombudsman. The memorandum was drawn up on the basis of the actual circumstances that were then known about the enforcement and have not changed in substance since then. I must therefore refer to this memorandum. The has, on the basis of this account, taken a standpoint in a memorandum dated , 2002 on the measures that were justified in connection with the enforcement. The then found that the measures adopted were not obviously incompatible with Swedish law but that at the same time they were not totally in accord with Swedish procedures. The conclusions reached by the Ministry were presented to the Minister of on 26, 2002. The took no measures as a result of the account presented in the Security memorandum. The issue of command is not touched upon in J.D.s memorandum. From the information I have gathered it is clear that no specific officer had been assigned command at airport. As far as can be seen, the Security came to the conclusion that this was not the kind of operation that made it necessary to assign operational command at airport. With regard to the actions of the Security officers, I can merely point out that the enforcement has been reviewed by the public prosecutor and that the Director of the in as part of a review process --- have found no grounds for initiating a preliminary enquiry as a result of the measures adopted in connection with the enforcement. I assume that this review also comprised any use of coercion that took place during the enforcement. One result of the appraisal made by the and other conclusions that can be drawn about the enforcement is, in my opinion, that the Security must develop in some respects and further improve both its decision-making procedures and the operational conduct of enforcement cases. Effective counter-terrorism obviously requires Swedish participation in international endeavours in this area. This must never, however, result in foreign officials being permitted to exercise their authority in . There is in my opinion, an essential difference between the enforcement of a Swedish deportation or expulsion order and international co-operation. For my part, I would find it alien to use a foreign aircraft with foreign security staff, as in this instance. must have total control over the enforcement, although due consideration must be taken of the role of the captain of the aircraft. is currently formulating regulations and general guidelines on the responsibilities of officers and the management of cases involving enforcement of deportation and expulsion orders. One section will deal with repatriations by air. Pending the issue of these regulations, published a circular on October 14, 2002 with guidance for repatriation by air. will, of course, comply with these instructions. In my judgement, it is clear that some of the measures adopted after the two Egyptians had arrived at airport were excessive in relation to the actual risks that existed, in particular as Security officers had already made body-searches of the two men. There were also other shortcomings in the case, for instance in allowing foreign officials to take measures without adequate participation by Swedish officers and the lack of any designated operational commander at airport. We cannot, of course, exclude the possibility that, within the framework of international co-operation in counter-terrorism, foreign officials may be present during some measures in , at interrogations for instance. In view of previous experience, including this case, the Security will, however, carefully consider in advance to what extent and in what way these officials will participate and inform them of the conditions that apply. In this context, I would also like to mention some organizational and procedural changes that will, overall, help to raise the quality and reliability of Security operational measures, including enforcement cases. The governance of the Security is being reorganized and augmented at the moment to enable strategic planning and substantially enhanced direction and monitoring of its operational activities. The new structure will provide greater scope for more intensive analysis of various possible alternative courses of action, and also improved risk analysis for complex operations. The allocation of authority and accountability in the Security will be made more explicit so that responsibility for the conduct of operational measures will more explicitly rest with the head of the unit concerned in certain operational areas. New and more stringent requirements will be introduced for documentary records and reports on operations. This will facilitate retrospective review and appraisal of sensitive and difficult operations. The Director General will have at his disposal a special unit for internal review, which will provide support for senior officers on issues relating to the focus of and risks involved in major, sensitive operations, and also enable their quality, security and effectiveness to be monitored and evaluated. This unit will consist of senior commanders with considerable operational experience. The unit will also have access to legal expertise from the legal unit. At the moment the Security possesses good general competence in the area of international law and human rights on the issues relating to its operations, but additional specialist expertise at an advanced level will be made available in this area. During 2005 an extensive training programme for newly recruited personnel will begin, which is intended to provide both enhanced basic training and training at specialist levels. In-service training for all personnel will be linked to this programme. Important elements in this training will involve international criminal and procedural law, international law and human rights. Special seminars will also be arranged to deal with the new regulations relating to the conduct of counter-terrorist measures. 3 The parliamentary ombudsmans appraisal 3.1 actions in connection with the exercise of public authority by American personnel on Swedish territory etc. 3.1.1 The legal framework () is posited on the assumption that judicial and administrative measures are the concern of Swedish authorities. The constitution is based therefore on the principle that only Swedish officers are empowered to use force or coercive measures, for instance, against individuals or exercise their authority in any other form (cf. SOU 2003:25 p. However, the Riksdag can decide on exceptions to this principle (IG Chapter 10, Section 5, fourth paragraph). One exception of this kind has been made in the Act on International Co-operation (2000:343), enacted as a result of accession to the Schengen Convention. This act contains provisions that give foreign officials legal rights in specific circumstances to invoke measures on Swedish territory in the case of what is specified as cross border pursuit and surveillance. However, there is no exception to the principle referred to in the case of enforcement of deportation and expulsion orders. In situations like this, the fundamental rule that only Swedish officers may exercise public authority on Swedish territory applies. This issue has recently been considered in a Government inquiry. On April 4, 2002, a special commissioner was appointed to review certain issues concerning the enforcement of deportation and expulsion orders. The inquiry, which was called the Inquiry into review of the regulations and praxis in connection with the enforcement of deportation and expulsion orders (Enforcement Inquiry) submitted its report Enforcement when identity is unclear etc. (SOU 2003:25) in 2003. The report contained the following evaluation of this issue (p. The conclusion reached in the Enforcement Inquiry is that the fundamental principle on which the current regulations are based, i.e. that public authority can only be exercised by the officials of the country whose territory it is, is apposite. The opinion of the inquiry is therefore that there is no reason at the moment to consider any legislative amendments to enable foreign officials to invoke coercive measures on Swedish territory over and above the possibilities afforded by the existing statutes. The legal situation that applies today has been subject to the appraisal of the Parliamentary Ombudsmen in a number of previous adjudications. In a case concerning the regular (JO 1974 p. 93) the Parliamentary Ombudsman, , expressed the following opinion. The participation [of foreign personnel] has been raised in a number of different cases. It is more than likely that there are grounds for adopting a liberal approach to foreign participation, but when it comes to the closer forms of participation there is good reason to advocate a more restrictive stance.