frsrdg · GT04JO1 · 2005-12-01 00:00:00 — One general endeavour should, of course, be to preclude as far as possible the kind of participation in which the foreign officer, either because of lack of knowledge of the regulations that apply to procedures in or for some other reason, may commit actions that would be regarded as the abuse of authority if committed by a Swedish officer. It is of course of the utmost importance that all forms of participation are monitored continually on the part of , which in principle probably requires all such participation to take place in the presence of a Swedish officer. A corresponding argument was presented in an adjudication by the Parliamentary Ombudsmen in 1984 (JO 1984/85 p. In a case involving contacts between the and foreign security services, the Chief Parliamentary Ombudsman, , endorsed the opinion cited above. He stressed in particular that the legal regulations in this area do not permit foreign officers to conduct activities in other than while assisting Swedish officers, and that the participation of these officers in Swedish operations must always take place in the presence of Swedish officers. It should be pointed out that these previous adjudications by the Parliamentary Ombudsmen have mainly involved the participation of foreign officers in interrogations that have taken place in . A memorandum recently drawn up by the on international legal assistance in criminal cases (Ds 2004:50) contains the statement that a fundamental requirement for both the participation of foreign officers in and of Swedish officers abroad is that this may not involve measures that according to Swedish law would be considered to be the exercise of public authority. In addition, it is pointed out, with reference to the Parliamentary Ombudsmens adjudications cited above, that this general principle should be considered to apply if there are no regulations permitting more extensive measures, as is the case, for instance, with the Act on International Co-operation (p. own internal procedural directives lay down, for instance, that co-operation with foreign services or other authorities may not include exercise of their powers in . As pointed out above, the Enforcement Inquiry found no reason to propose any legislative amendments in this respect. On the other hand, the agencies responsible were recommended to issue regulations on how their officials must act when involved in repatriation transport. In view of this, in February 2005 issued regulations and general guidelines for the enforcement of deportation and expulsion orders involving by air (FAP 638-1). These lay down that the authority is the enforcement agency even when assisted by a foreign agency (§15). Another stipulation is that security controls that involve body-searches or other methods that require statutory endorsement must be carried out on Swedish territory by Swedish officers (§17). The general guidelines under this last regulation state that there may be reasons for foreign officers or other officials representing foreign agencies to assist Swedish officers in enforcement situations on Swedish territory, for instance in cases pursuant to the Act concerning Special Controls in Respect of Aliens (1991:572). This can occur in cases when another state assists by providing transport. The general guidelines under §17 also point out that a foreign officer or other official may, on the orders of the captain or in some other emergency, use coercive measures on board an aircraft. In its report the Enforcement Inquiry also raised another aspect that may be of some significance in this context, which is the position and powers of the captain on board an aircraft. Section 1 of Chapter 5 of the Act (1957:297) lays down that the captain of an aircraft is the supreme authority on board. The captain may take the measures required to avoid danger, if the behaviour of any individual constitutes an immediate risk to the safety of the aircraft or safety on board. In carrying out these measures the captain may not adopt greater force than the circumstances require and force may only be used when other methods are of no avail. If force is resorted to, only the mildest form likely to achieve the desired result may be used and only for as long as is absolutely necessary. Members of the crew are to provide the captain with any assistance he may require. Passengers may also provide such assistance, if requested by the captain. If, because of imminent danger, measures must be taken immediately, members of the crew or passengers may themselves act without the captains order (Chapter 5.4). A captain may also refuse to allow members of the crew, passengers or cargo on board the aircraft when the circumstances so demand (Chapter 5.3). The captain of a foreign aircraft has the same powers even in Swedish areas (Chapter 5.6). In view of these regulations, the Enforcement Inquiry contained the following statement (p. In the case of a foreign aircraft, certain security controls may be demanded before the individual in question is at all permitted to board the aircraft for transport from . In cases where security controls of this kind include body-searches or other coercive physical measures that require some basis in law, it is reasonable to assume that these measures may not be carried out on Swedish territory by foreign officials without such a legal basis. In view of the captains responsibility for safety on board the aircraft and the regulations entitling him in certain cases to invoke violent measures, it cannot, however, be excluded that foreign officials may have the right, on his orders or in an emergency, to resort to some degree of coercion. It can be pointed out that the memorandum of about this particular enforcement concluded with a reference to the appointment a few days earlier of a special commissioner to review regulations and praxis in connection with the enforcement of deportation and expulsion orders, i.e. the Enforcement Inquiry. In addition, it was pointed out that experience of the case had been taken into account when drafting the directives for this inquiry. Finally, it may be added that there are no regulations governing the possibilities open to the of using foreign aircraft in enforcing deportation and expulsion orders. For a long time the in have had extensive international co-operation with the in other countries and with international organizations. This occurs, for instance, through participation in , Europol and Schengen, commitments in international conventions, bilateral agreements or simply through the exchange of valuable information. It also seems as if international co-operation is becoming more intensive, both within the scope of Union and at a more general international level. There may be good reasons for co-operation of this kind in itself and it may be necessary to prevent and oppose terrorism and other forms of cross-border criminality. This international co-operation naturally involves the work of the Security to a great extent. It was pointed out, for example, in 1989 in a report on the working methods of the Security that international co-operation plays a very important role in enabling the security service to operate effectively, for instance in the field of counter-terrorism (SOU 1989:18 p. has also ratified various conventions on combating international terrorism, such as the UN International Convention for the Suppression of the Financing of Terrorism. It is therefore remarkable that during its surveillance and investigation of A. and E.Z. the Security had contacts with the security services of other countries. However, a completely different state of affairs arises when this kind of co-operation evolves from merely exchanging information to permitting foreign officers or security agents to take an part in operations and to exercise public authority in . There is, as K.B. remarks, an essential difference between the enforcement of a Swedish deportation or expulsion order and other forms of international co-operation. To begin with, I wish to point out that the mere fact that a foreign officer or official is present when Swedish officers exercise their authority is not in conflict with current legislation. I can, therefore, envisage a situation in which a foreign security agent assists a Swedish officer in a terrorist case by, for instance, being present and asking additional questions during an interrogation (cf. the opinions expressed in JO 1974 p. 93 and JO 1993/94 p. Another conceivable situation could involve the presence of a foreign officer while Swedish officers are searching premises. do I have any objections to the presence of a foreign official during the enforcement of a deportation and expulsion order. It is, however, important to point out that in these cases the public authority must be explicitly exercised by Swedish officers and that the foreign officials have to remain in the background and adopt what is basically a passive role. The inquiry into this case reveals, however, that during the brief period of time, about one hour, during which the American and Egyptian officials were on Swedish territory, the opposite circumstances applied. officers remained in the background while the American officials exercised public authority on their own by, for instance, adopting coercive measures such as body-searches, physical examination and some degree of force in the use of fetters and handcuffs. In section 3.2 below I will present my opinion of the force and coercive measures that were invoked during the enforcement in more detail. Before dealing with the question of whether or not the exercise of public authority by American officials on Swedish territory was legal, there are grounds for touching to some extent on the reason for accepting the American offer. The inquiry reveals, as has already been described, that from and onwards, continuous discussions were taking place between the Ministry for Foreign Affairs and the Security concerning, among other things, when a Government decision could be expected. It transpires that it was said initially that no decision could be expected before January 2002. Information on file at the Security shows that subsequently it was intended that the Government should reach its decision on , 2001, and the enforcement was therefore arranged for . On 5, the Ministry for Foreign Affairs then announced that no decision could be expected before . This information must have been revised, however, as on , the Ministry announced that the Government intended to make a decision in the case only four days later. In other words, there seems to have been far from adequate planning. This lack of foresightedness appears to have contributed to the fact that the American offer came under discussion. Indeed, the inquiry reveals that when the Security were attempting to charter a plan in the customary way via the National Prisons and transport service, it was difficult at short notice to arrange slots for flights through Europe on the day when the decision would be made, 2001. As the plane chartered could not leave until the morning of places were requisitioned for A. and E.Z. The difficulty of arranging the desired transport in immediate connection with the anticipated Government decision must be considered to be the reason why it was only shortly before the expulsion order was issued that the Security received the CIA offer of the use of a plane with a direct flight path through Europe on the day of the decision itself. One question is whether this offer was discussed during the presentation of the case to the Ministry for Foreign Affairs on , 2001. As the inquiry shows, the Security and the Ministry for Foreign Affairs have different opinions on this issue. A.A. and officer have both stated that the two transport alternatives were presented at the meeting and that the Foreign Minister gave the go-ahead to acceptance of the American offer. The Ministry for Foreign Affairs claims, on its part, that there is no support for the assertion that the Security mentioned the American alternative during the presentation. I may conclude that the inquiry (by the Ministry for Foreign Affairs) into this issue was made in /2004, i.e. about 2,5 years after the event, that the recollections of those interviewed seem to be vague and extremely disparate and that the information provided by the Security is corroborated by a journal entry and other written documents drawn up shortly after the meeting. Appraisal on the basis of the information available to me strongly suggests, therefore, that at this meeting the Foreign Minister was informed about the alternative involving the use of an American aircraft for enforcement and the Security received the impression that this procedure had been accepted. It should be emphasised that full responsibility for how the enforcement was implemented rests of course with the Security . In my opinion, it is nevertheless understandable that in the choice of transport the Security also took into account what it had come to believe was the Foreign Ministers attitude in this respect. Here I would already like to point out that scarcely any objection on principle can be raised to the use of a foreign aircraft for the enforcement of a deportation or expulsion order, even though, of course, there may be situations when such a course of action may appear to be less than suitable. It is also clear that during the presentation on , 2001, nothing was said about the participation of foreign security personnel in the enforcement. As far as I have been able to determine, this information was not given to the Security until lunchtime on , 2001. Against this background, I have found no reason to go any further in my inquiry into what was discussed at the presentation to the Foreign Minister. In addition, as pointed out initially, Ministers are not subject to the supervision of the Parliamentary Ombudsmen. With respect to the acceptance by the Security of the American offer, it is worth pointing out that, after the terrorist attack on , 2001, the began what was termed a war against terrorism. There are therefore good reasons for asserting that the offer of the use of an American aircraft for transport by the American intelligence service only three months after the terrorist attack should have given rise to explicit questions from the Security about whether this offer was conditional on the requirement of any particular arrangements with regard to security. If such questions had been asked when the offer was received, it is likely that the required participation of American security personnel and security checks could have been taken into consideration when deciding whether to accept it or not. Questions like this would probably have been answered, not least in view of the fact that there seems to have been an American policy, developed on the basis of the events of , 2001, that applied to the transport of deportees with terrorist links. A.A., who handled contacts with the CIA, has said that no conditions were attached by the Americans to the use of the American plane by the Security . However, during my inquiry, no information has been submitted to suggest that this was ever discussed at all. Instead, the Security seems to have accepted the offer almost passively without investigating what it would mean in practice, merely assuming that they were talking about a pure transport service. The circumstance that, according M.L., this was probably the first time the Security had used a foreign aircraft in a case like this, should have given rise to appraisal of the problems, for instance from a legal point of view, that acceptance of the American offer might entail. In this respect the Security displayed remarkable inadvertence. After this, there is reason to turn to what occurred during officer meeting at at lunchtime on , 2001. As far as I have been able to determine, this is when the Security received information that security personnel would be accompanying the aircraft, that the personnel would be hooded, that they wanted to conduct their own security checks of A. and E.Z. and that there would not be room on the plane for any Swedish officers. This information should have given rise to considerable apprehension about the ability of the Security to retain control over the enforcement. It was therefore not sufficient for the Security to assert that Swedish officers were responsible for the enforcement by merely demanding that a pair of its representatives should be enabled to accompany the plane to . Information about the extent of the American involvement should at any rate have prompted those responsible at the Security to assign immediate operational command to an officer of sufficiently high rank to ensure on the spot that the Swedish officers would retain control of events at in every respect and also during the flight to . In addition, the Security at this stage should have asked for information about what the security checks would comprise. If this had been provided, the Security would have had time to undertake a judicial appraisal of whether and if so to what extent checks of this kind were acceptable. The inquiry suggests that officer informed A.A. and that the latter, without any further probing or consideration, approved that security checks could be made. Once again the Security acted passively. Officer has admittedly stated that a security check was all that had been mentioned, but the turn that the events took shows that these inspections went further than this and the measures taken by the American officials followed what appeared to be a well-drilled pattern. The fact that the Americans wanted access to a room should have raised doubts about whether it was merely a question of frisking the two men in the usual way. The closer implications of the American demand to be allowed to make security checks do not therefore appear to have been clear to the Security before the inspections were being carried out at airport if even then. I will now turn to a discussion of the question of whether the behaviour of the Security in connection with the conduct of the American security personnel on Swedish territory is compatible with Swedish law. As has been made clear by the account of the legal regulations, the legal situation in this area is relatively clear. Insofar as Swedish law does not otherwise provide, the Swedish legal system is based on the premise that activities in are dealt with by Swedish officers. At the moment, in other words, the Swedish legal system does not permit foreign officials to undertake operations in unless they are assisting the Swedish force and the participation of such officials in operations in must always take place in the presence of a Swedish officer. One cogent reason for adhering to this principle is that criminal liability for misuse of office applies only to the exercise of Swedish authority (Criminal Code 20.1). In the cases where provision has been made for a foreign officer to exercise certain public authority in as a result of agreement with other states this liability has been extended to include officers in this position. Section 12 of the Act on International Co-operation (Schengen co-operation) stipulates that liability for misuse of office as laid down in 20.1 of the Criminal Code applies to foreign officials exercising their authority in on the same terms as if they were exercising Swedish authority. The foreign officials are therefore placed on the same footing in this respect as Swedish officers. In my opinion it would be unacceptable to have a system which enabled foreign officials to exercise public authority in without being subject to the liability laid down in the Criminal Code for misuse of office. In addition, it may be worth pointing out that problems may arise in civil suits for indemnity for injuries or damage caused by foreign officials in (cf. Section 13 of the Act on International Co-operation). In his statement A.A. has raised the issue of whether, in view of the international developments that have taken place in recent years both in and outside the EU, any change has taken place in attitudes to the extent to which foreign officials from other security or intelligence services can participate in operations in . As has already been shown, the answer must be in the negative. The previous opinions of the Parliamentary Ombudsman cited here still apply and also seem to have gained general support. can I, for my part, see any reason for excluding the Security from the current system. On the contrary, there may be grounds for particular restrictiveness in allowing foreign security and intelligence services to operate on Swedish territory. In addition, it is my opinion that the growth in the extent and intensity of international co-operation augments the need for firm and clear regulations. Another question that has been raised in this case is whether the provisions of Chapter 5 of the Act can be invoked in support of the actions of the American officials on Swedish territory. Such support could be derived from the observations of the Enforcement Inquiry that in view of the captains responsibility for security on board an aircraft and the regulations that entitle him in certain cases to use force, the possibility cannot be excluded that at his request or in an emergency foreign officials have the right to use some coercion. However, the Act only grants the captain, and, in principle, if he so decides, members of the crew and passengers, power to resort to the use of force to maintain order and safety on board the aircraft. Recourse to force may only take place when other means are ineffectual and it may be invoked for no longer than is absolutely necessary. On the other hand, the captain does not have the right to order the use of force towards someone who is not on board his plane. Here his power is restricted to the right to refuse to allow passengers to board when the circumstances so require. If a captain, by virtue of this entitlement, demands at a Swedish airport that a passenger undergo some coercive measure before being allowed on board, it is obvious that this measure may not be implemented by anyone other than a Swedish officer (cf. Section 17 in FAP 638-1). Here too, therefore, I agree with the opinion that generally prevails that, to the extent that Swedish legislation does not provide otherwise, according to the current law foreign officials are not allowed to undertake operations in except when assisting Swedish officers and that the participation of such officials in Swedish operations must always take place in the presence of a Swedish officer. In my opinion there are particularly cogent reasons for upholding this principle when the operation concerned may involve subjecting individuals to force or coercive measures. The inquiry in this case shows that the American security officials did not merely assist the Security in their enforcement but that in reality they took over and were in control from the moment of their arrival at airport. officers were present, but they remained passively in the background while the American officials were allowed to conduct the security checks on their own. This kind of complete transfer of the exercise of public authority to foreign officials on Swedish territory is not compatible with Swedish law. can the Security be considered to have been in control of the enforcement on board the aircraft. The enforcement of an expulsion is not complete until the deportee has been received in the destination country. The Swedish therefore have full responsibility for the enforcement until that time.