frsrdg · GS04JO1 · 2005-01-01 00:00:00 — They are to be met with understanding of the particu- lar difficulties associated with their prison sentence (Section 9 of the Pri- son Treatment Act). Principles and reality in the treatment of offenders My area of responsibility includes the treatment of offenders. I have chosen here to concentrate solely on that aspect of my responsibilities and on one single issue overcrowding in the prison facilities and detention centres. This Annual Report includes an account of an adjudication relating to this issue (p. What follows is basically a summary of the adjudication. During the year I have dealt with just over 500 cases concerning condi- tions in detention centres and prison facilities. I have received almost 700 new complaints. I have inspected five prison facilities and detention centres. These inspec- tions have enabled me to talk to the inmates without the staff being present. I have of course also talked to the staff and inspected the premises. This does not mean that I have acquired perfect appreciation of the condi- tions that prevail. But nevertheless I have acquired enough experience and insight to enable me to determine that there are serious problems. Ultimately these problems are the result of overcrowding. This affects conditions in the detention centres and prison facilities in many different ways. Here I am only going to mention some of the conse- quences. But before doing so, I should like to point out that the Riksdag has enacted legislation guaranteeing prisoners certain rights. This legislation leaves no leeway for standards that fail to meet the statutory requirements, be it for financial or other reasons. In my opinion this is a very important star- ting point for the discussion of overcrowding. According to the most recent statistics available, the occupancy level for prison facilities was 102 per cent. This may not sound very alarming. But what has to be borne in mind is that the system requires some degree of elas- ticity. The level of security required varies, as do the forms of treatment offered, for instance. To enable those serving prison sentences to be placed in the facility that is most appropriate to their needs, the occupancy rate must be considerably lower than it is currently. Difficulties also arise in enabling prisoners to maintain contact with their next-of-kin. B I L A G A 10 20 04 /05 :JO1 Delays in providing prison places after sentence One consequence of the overcrowding is that detainees who have been sen- tenced to prison and are to begin serving their sentence often have to endure unacceptably long periods in detention centres while waiting for prison places to become available. This waiting period should not normally exceed one week. On 1 there were 416 individuals waiting to begin their sentences in a suitable prison facility, 290 had been waiting for more than seven days. Not enough room for detainees at the detention centres The assumption of responsibility for cells at stations by the Prison and has resulted to some extent in their transformation into detention centres. The standard of these detention facilities is often poor. One example can be provided by the following description. The floor consists of painted concrete and the walls are tiled completely. The furnishing consists of a bed and a table, both attached to the wall, a lavatory without a lid, a small washbasin and a television receiver. The exterior windows are fitted with fixed steel shutters angled vertically to allow light to enter but to limit any possibility of looking out or down. However, you have to stand very close to the window to see anything at all. Only a limited amount of daylight is admitted. I have visited one cell that lacked both a bed and a table, which meant that its inmate had to eat sitting on a mattress on the floor. I should like to point out here that the period someone spends in custody is very important for many reasons. These detainees have not yet been convicted of any crime but must, on the contrary, prepare themselves for a trial which may have consequences that will affect the rest of their lives. Some facilities have opted to deal with overcrowding by making two inmates share the same room. There are no rules that prevent this. However, the ac- commodation in detention centres and prison facilities is not normally desig- ned or equipped for more than one person. When two inmates are obliged to share a room, it is not unusual for one of them to have to sleep on a mattress on the floor. I have met inmates who allege that they are forced to share a room with someone who smokes even though they are non-smokers. Sharing a room can of course give rise to problems for other reasons as well. Accommodation in visitors quarters etc. In some cases inmates are housed in premises that were not intended for ac- commodation. They have been placed in laundry rooms and common rooms of various kinds. Accommodation intended for visitors has also been taken over to house inmates. This reduces the possibilities of receiving visits, which is, of course, particularly unfortunate. 2 004 /0 5:JO1 B I L A G A 10 Many inmates complain about their accommodation. This I fully understand and consider that many of them can justifiably claim that they are being sub- jected to treatment which is completely unacceptable on humanitarian grounds and which also contravenes the principles on which the legislation in this area is based. The right to social contacts, employment, physical training and other activities Naturally, the problems resulting from overcrowding are not restricted to accommodation, but have other negative consequences as well. One is that more inmates have to share the facilities provided to enable them to receive visits or for physical training. There is also increased demand for activities of various kinds, such as work and other forms of employment. Overcrowding has also meant that many places have not had enough staff to enable inmates to meet in groups, undertake occupational or physical activities or spend time outdoors. In addition, staff have fewer opportunities to talk to the inmates. In many places, treatment of offenders, in any real sense of the term, has often had to give way to the measures required to supervise and confine them. Another consequence is that there is less scope for those held in custody to meet each other despite the principle that detainees should be provided with opportunities to spend time together with one or several other detainees. This is not a new problem. At the end of the 1990s my predecessor expressed hopes that the measures the Prison and was then about to adopt would improve the situation. These hopes have not been fulfil- led and the situation seems rather to have worsened, at least in some quarters. The Swedish statutes that govern conditions for detainees and inmates in prison facilities are based on values that are fundamental to the society in which we live, such as respect for individual human dignity. One of the cor- nerstones of this legislation is the requirement that the conditions on which the necessary restrictions of the freedom and rights of individuals may be imposed in detention centres and prison facilities must be carefully regulated and comply with stringent legal demands in other respects as well. As a result of recent developments, the staff responsible for detention centres and prison facilities are often deprived of any practical possibilities of complying with the statutory requirements. There can be no doubt that the problem is very grave, not least in view of the legislation involved. What is particularly disturbing is that we are now experiencing a development that involves continuous deterioration. All our experience teaches us that sound social institutions can collapse very rapidly, but that a great deal of time and effort is required to restore them. It is excee- dingly important to halt this negative development and to adopt measure that can reverse it without delay. B I L A G A 10 20 04 /05 :JO1 The fundamental aim of the treatment of offenders is to promote their so- cial rehabilitation. This aim cannot be achieved with the overcrowding that prevails today. 2 004 /0 5:JO1 B I L A G A 10 3 Reports of three individual cases 3.1 The action of a district court in deciding to permit listening by relay during a detention hearing and not to divulge the identity of the defendant in its decision A complaint was submitted to the Parliamentary Ombudsmen in which P.S., a lawyer representing C., expressed criticism of the of Appeal. At a detention hearing, the Court had published the name of the defendant without giving any reason for doing so, even though both P.S. and the prosecutor had requested that the defendants identity, which had not been disclosed at the district court hearing, should be kept secret. The appeal court file for case no. and the diary entry and record of the detention hearing in Court, case no. , were requested and examined. These documents revealed the following. The detention hearing was held in the City Court on 8, 2002. The case concerned gross espionage or alternatively gross industrial espion- age. The court record identified the defendant as secret C, who was thereaf- ter referred to as C. When the case came before the City Court the defen- dant stated that he did not wish his name to be disclosed. C. was therefore placed in the detention room and enabled to listen to the hearing via loud- speaker. Nevertheless the hearing remained public. The prosecutor presented the application for a detention order and also requested that the hearing be held in camera asking the court to rule pursuant to Section 5.4 of the Procedural Code. The legal representative of the defendant stated that he contested the application for a detention order but had no objection to the hearing being held in camera. Court then decided, by virtue of Sections 5.1, 2.1 & 2, and 9.17 of the Secrecy Act, to hold the hearing in camera. When the proceedings were again declared open, the City Court announced in its decision that there were reasonable grounds for suspecting C of gross industrial espionage and issued a detention order against him. In its decision the City Court also ruled that, pursuant to Section 5.4 of the Pro- cedural Code, no information about the case or the identity of C. presented at the hearing was to be disclosed and that this ruling would remain in force until the court issued a decision to the contrary. C. appealed against the detention order. After an exchange of correspon- dence with the of Appeal, in which the defendant was consistently referred to as C., a detention hearing was held on , 2002 concer- ning the case. The record of the detention hearing in the Appeal Court reveals the following. The detainee was identified as the defendant by both his name and his social registration number. After having established that there was nothing to prevent the hearing the court decided, at the prosecutors request, B I L A G A 10 20 04 /05 :JO1 that it should be held in camera. After withdrawing to consider its decision, the court announced that the hearing was once again open to the public and in the presence of the prosecutor and the defendant dismissed the appeal. The detainee named was suspected on reasonable grounds of gross industrial espi- onage and there was the risk that he could both evade the due process of law and collude with others. In addition the of Appeal ruled that the information presented during its hearing that was subject to confidentiality pursuant to Section 5.1 of the Secrecy Act was not to be disclosed. This pro- hibition was to remain in force until a decision to the contrary was issued. The complaint was referred to the of Appeal for information and a statement about the way in which it had dealt with the detention hearing on , 2002. The information was to indicate what legal consider- ations had been taken into account with respect to the issue of secrecy. The statement received from the of Appeal (The President, ) referred to information and a statement submitted by , Chief Judge, which were attached. stated that he himself had nothing to add to the opinions on the application of law and the routines referred to in this statement. statement included the following. From the appeal and the City Courts files on this case it could be seen that information about the suspects name, for instance, was subject to a secrecy order. While the case was being prepared in the Appeal Court, it became clear that the main reason for the secrecy ruling related to the in- vestigation, as disclosure of the identity of the defendant would reveal what kind of secret information it was believed had been divulged. Before the conclusion of the hearing and the withdrawal of the Appeal Court for its deliberations, the prosecutor and the defence lawyer were asked to present their opinion concerning the question of the name secret. The prosecutor then informed the court that the investiga- tion had reached a stage at which there was no longer any reason for sec- recy. The only provision regarding secrecy that could possibly be invo- ked, according to the prosecutor, was Section 9.17 of the Secrecy Act, but he himself had no firm opinion on the matter. P.S. merely stated that his client had no for his name to be revealed. The assertion made in P.Ss complaint to the Parliamentary Ombudsmen that both parties had requested that the name should remain secret is therefore erroneous. In its deliberations the Appeal Court came to the conclusion that there were no grounds for continuing to keep the name secret. The premise on which the standpoint adopted by the court was based was that the de- cisions issued by a court of law must, as far as is possible, be public. This applies particularly to a final judgment. It may frequently be the case that a suspect has no for his name to be made public but this cannot justify secrecy. could the Appeal Court find that the provisions of Section 9.17 of the Secrecy Act offered adequate grounds in any other re- spect for the name secret. The standpoint adopted by the Appeal Court found no other expression than in its identification of the subject of its final judgment on the detention issue. Consequently, no specific ruling was issued on this matter, therefore, and none was considered necessary in view of the provisions of the first paragraph of Section 12.4 of the Sec- recy Act. 2 004 /0 5:JO1 B I L A G A 10 As the City Court had not concluded the case and in doing so issued a decision as laid down in the second paragraph of Section 12.3 of the Se- crecy Act, in our opinion there were no grounds for the Appeal Court to issue any ruling about continued secrecy. The case was then referred to the Court for information and a statement about the legal considerations taken into account with respect to secrecy issues and permitting the use of a loudspeaker relay in connection with the detention hearing on 8th, 2002, at which a detention order had been issued against the defendant secret C. Court (Chief Judge ) submitted a response which re- ferred to the information contained in an attached statement from . asserted that she had nothing to add to this statement. I presided at the detention hearing in case no. on 8, 2002 at the City Court. The legal considerations taken into account on the issues raised by the Parliamentary Ombudsmen were the following. Section 9.17 of the Secrecy Act (SFS 1980:100) lays down that secre- cy applies, for instance, to information about the personal circumstances of individuals subject to investigation in accordance with the provisions on the preliminary investigation of criminal offences if it is not evident that the information may be divulged without occasioning harm or injury to the individuals or anyone close to them. Section 12.1 of the same act lays down that this secrecy also applies in a court of law. It is more than probable that information about someones name is in- cluded in the concept of personal circumstances. C. was anxious for his name not to be made public. The case had attracted attention and had aroused great interest in the mass media. As things then were, it was of course uncertain whether the suspicions against C. would in fact lead to prosecution. In this light and in view of the presumption of secrecy im- plied by the converse requisite of injury, the City Court found that Cs name should not be disclosed to the public. At the same time the court realised that it was important to allow as much public access as possible to the hearing. For this reason the public were permitted to be present du- ring the sections of the hearing in which the charges and the response of the defendant were presented and also when the decision of the court was announced, while the court permitted C. to listen to the hearing from an adjacent room (by loudspeaker) while his counsel remained in the cour- troom. During the major part of the hearing, which was held in camera, C.was of course present in the courtroom. The decision of the City Court to conduct the hearing in camera, with the exception of the initial presentation of the charges and the defen- dants response and the concluding announcement of the decision of the court, was based on the assumption that, as laid down in Section 5.1 of the Procedural Code, information would be presented during the hearing that was subject to secrecy. The secrecy provisions considered likely to apply were, as noted in the record, Sections 5.1, 9.17 and 2.1 & 2 of the Secrecy Act. The last two references were made because the suspicions involved crimes against the security of the realm in which diplomats from the embassies of foreign powers might be involved. In the courts opinion this implied, as is not the case when deciding to hold a hearing in camera on the grounds laid down in the first two provisions, that it was of exceptional importance for the information not to be divulged. B I L A G A 10 20 04 /05 :JO1 tion, other secrecy provisions, such as Section 8.18 of the Secrecy Act, could have been invoked in view of the alternative suspicion that the case involved industrial espionage. However, in the brief record of the hea- ring, the City Court went no further than to specify the four provisions on secrecy cited above. I can only find that the City Court was correct in not making Cs name public. It is, moreover, not uncommon for the City Court to determine, on the basis of the provisions of Section 9.17 of the Secrecy Act, that the name of the defendant is not to be made public. Consenting to allow C. to listen to sections of the hearing by loudspeaker relay was one way of re- solving the conflict of opposing interests. The alternative, if Cs name was to remain secret, would have been to hold the entire hearing in came- ra. Court considered it preferable to opt for the procedure adop- ted even though there is no direct support for this course of action in the statutes. In his adjudication issued on , 2003 the Chief Parliamentary Ombudsman, . , made the following observations. The legal regulations etc. In the second paragraph of Section 11 and in Section 12 of Chapter 2 of the Instrument of Government it is stipulated that hearings in a court of law are to be open to the public if no other legal provisions apply. Section 5.1 of the Procedural Code contains, among others, the following provision. Hearings in a court of law are to be open to the public. If it can be assumed that information presented during the hearing is likely to be subject to the secrecy prescribed in the Secrecy Act (1980:100), the court may, if it considers it particularly important for the information not to be divulged, rule that the hearing will be held in camera where this information is concerned. In addition, hearings held during the preliminary investigation of a criminal offence or corresponding cases or issues, may also be held in camera if se- crecy applies according to the provisions of Sections 5.1, 5.7 or 9.17 of the Secrecy Act. Section 5.1 of the Secrecy Act states, for instance, that secrecy applies to information relating to the preliminary investigation of criminal cases and also to the use of coercive measures in such cases or other measures to pre- vent crime, if it can be assumed that the purpose of the measures contemplated or invoked will be thwarted or impaired should the information be divulged. The first paragraph of Section 9.17 of the Secrecy Act stipulates that sec- recy is to apply to information about an individuals personal or financial circumstances unless otherwise provided in Section 9.18, during investiga- tions pursuant, for instance, to the provisions relating to the preliminary in- vestigation of criminal cases and also to the use of coercive measures in such cases or other measures to prevent crime, unless it is clear that this informa- tion may be divulged without causing harm or injury to the individual or those close to him or her. The secrecy laid down in the first paragraph of Section 9.17 of the Secrecy Act does not apply to decisions to bring charges, not to launch preliminary inquiries or to terminate preliminary inquiries (first paragraph of Section 9.18 of the Secrecy Act). Furthermore, this secrecy also ceases to apply, with cer- 2 004 /0 5:JO1 B I L A G A 10 tain exceptions, if the information is submitted to a court of law in connection with a prosecution (second paragraph of Section 9.18 of the Secrecy Act). Sections 2.1 & 2 of the Secrecy Act contain provisions relating to secrecy in connection with issues relating to foreign affairs and the defence of the realm. If, in the course of its adjudications and hearings, a court receives informa- tion from another court or other public authority where it is subject to secrecy, this secrecy is also to apply in the court concerned (first paragraph of Section 12.1 of the Secrecy Act). The first paragraph of Section 12.3 lays down that the secrecy applying to information in cases or issues heard or adjudicated by a court ceases to apply in the case or issue if the information is disclosed at a public hearing in the same case or issue. This does not apply, however, to secrecy pursuant to Sec- tion 5.6 of the Secrecy Act. If information subject to secrecy as laid down in the first paragraph of Section 12.3 of the Secrecy Act is divulged at a hearing in camera, this secrecy continues to apply in accordance with the second paragraph during further proceedings in the case unless the court orders to the contrary. Once the court has concluded its proceedings in the case, this se- crecy continues to apply only if the court includes a ruling to this effect in its judgment or decision. If a case or issue in which a court has ruled that secrecy will continue to apply to information is pursued further, the superior court must review this secrecy when it terminates its proceedings in the case or issue. Section 12.4 of the Secrecy Act stipulates among other things that secrecy ceases to apply to information in cases or issues heard or adjudicated by a court of law if the information is included in a judgment or decision in the same case or issue, unless in the judgment or decision the court has ruled that this secrecy is to continue to apply. Continued secrecy may not include the final judgment or the corresponding section of some other decision, unless the safety of the realm or some other consideration of particular gravity renders it imperative. Moreover, if a case concerns the civil rights or obligations of an individual or suspicion that an individual has committed a crime, no secrecy order applying to a final judgment or the corresponding section of a decision may be issued unless a state of war exists, or the threat of war or some other exceptional circumstances resulting from warfare.