frsrdg · GV04JO1 · 2008-01-01 00:00:00 — However, I assume that in cases in- volving constitutionally guaranteed expressions of opinion, a court would today interpret the provisions on disorderly conduct in the restrictive have just advocated. (For a critical analysis of cases and doctrine on this issue see , Mötes- och demonstrationsfriheten [Freedom of assembly and dem- onstration], p. 613 ff. and SvJT 1999 p. I have viewed pictures like those displayed at the demonstration and can understand that they can cause offence. It can also be assumed that the inten- tion in displaying the pictures was to shock and cause distress. I have as- sumed that the demonstrators intention was to gain adherents for their point of view by demonstrating how close the aborted foetuses were to full devel- opment as human beings. There can, therefore, scarcely have been any doubt that the pictures consti- tuted the main element of the message that the demonstrators wanted to con- vey. Similarly it must have been clear that it was the content of the pictures as such and not the conduct of the demonstrators displaying them that could BILAGA 10 20 07 /08 :JO1 be considered offensive. It is therefore my firm conviction that the display of the pictures in these circumstances can in no way be considered disorderly conduct in the sense used in the penal code. I therefore consider that was wrong to claim that was guilty of the crime of disorderly conduct and that the pictures could therefore be seized. Finally, as the intention of the demonstration was to arouse opinion against the abortion law and in view of the central role played by the pictures in communicating this message, it is easy to understand why the outcome of the intervention was that the demonstrators could no longer see any point in con- tinuing their attempt to shape opinion. Even if it is the case, as stressed by the authority, that the demonstration was never officially dispersed, actions nevertheless resulted in the deprivation of the demon- strators possibility of conveying their message in the they had in- tended. In practice, therefore, the course he adopted had the same effect as a decision of the authority to disperse the demonstration. To sum up, the intervention during this demonstration had, in my opinion, no basis in law and must, in view of its effect, be considered an infringement of the freedom of and the other participants to assemble and to demonstrate. Even though, as has been shown, it is not totally self-evident how the crime of disorderly conduct is to be defined, merits criticism for his actions. It is, however, in its way even more remarkable that in substance the response of the authority merely states the obvious, that the demonstration was never officially dispersed and that reported no criminal offence. These events should have caused the authority to reflect itself on the compatibility of the intervention with funda- mental rights and freedoms. The treatment by the and the Taxation Authority of information supplied by a foreign agency in a criminal case involving international legal assistance on terms that restricted its use , a lawyer, submitted a complaint in which he raised the question of whether the had acted cor- rectly when certain documents were supplied to the Taxation Authority for use in court proceedings on a taxation issue. The documents had been pro- vided to the by the in , following a request for international legal assistance. in had stated expressly that the documents could only be used for the case in which international legal assistance had been granted. also raised the question of whether the Taxation Authority had acted correctly in submitting the documents while the case was being heard. 2 007 /0 8:JO1 B I L A G A 10 Documents were requested from the and the Taxation Authority. (Director General ) submitted a response with statements by the Assis- tant , and , a District Prosecutor as at- tachments. The Taxation Authority (through its legal expert ) sub- mitted a response to which had been attached statements by Per , Tax Director, , Tax Auditor, , an executive officer and , a Tax Inspector. In a decision of 16 2007, the Chief Parliamentary Ombudsman, . , included the following. The inquiry reveals that in , a district prosecutor conducting a preliminary investigation into what was suspected to be a serious case of fraudulent bookkeeping and impeding tax assessment, sent a request for international legal assistance to . In it she sought help in obtaining information about any accounts the suspects may have had in a bank in as well as bank statements, if any existed. The request was accompanied by a letter from ex- plaining that the investigation did not concern any suspected tax offences. In 2001 representatives of the in (Parquet Général du Grand-Duché du ) decided that there was nothing to prevent compliance with the request. In of the same year then took over supervision of the preliminary investigation, according to information in the case file. When the received the requested information in February 2002, an accompanying letter laid down the following conditions concerning the use of the material (trans- lated here from the French). The information enclosed, the attachments and documents obtained in the course of this assignment, may not be used in either the process of investiga- tion of a crime or as evidence in criminal proceedings in any case other than the one for which international legal assistance has been granted. In addition to the use of the information from in the prelimi- nary investigation, it was also cited as evidence by the Taxation Authority in a case involving supplementary taxation and a taxation penalty in the County Administrative Court. The Taxation Authority had received the information from , who was also assisting the in its preliminary investigation as an expert. After a move had been made that the evidence should be dismissed the Taxation Authority withdrew the material. The County Administrative Court issued its judgement in the case on 22 October 2004. BILAGA 10 20 07 /08 :JO1 How could the information from be cited in the taxation proceedings? During the inquiry the Parliamentary Ombudsman has endeavoured to ascer- tain what contacts were made and/or what agreements were reached between and about the information from . Their accounts differ however. According to the information was supplied by to the Taxation Authority without any condi- tions and they were then in agreement that it could be included in the Taxa- tion Authoritys case review. , on the other hand, has stated that the information was given to in her capacity as expert in the criminal investigation and that the Taxation Authority had itself made the decision that it could be used in the taxation hearing. Here, therefore, it is a case of one word against another. Some of the in- formation submitted by and the contents of the working notes she made provide support for the claim that supplied the infor- mation from for use in the taxation cases as he considered that the Taxation Authoritys inquiry could be of assistance in the preliminary investigation he was conducting. It has not been possible, however, to deter- mine clearly what took place and I have not considered it meaningful to un- dertake any further inquiries in this respect. Therefore I have nothing to sup- port an allegation that supplied the information from Luxem- bourg to the Taxation Authority for use as evidence in the taxation cases. However, I would like to point out that it is in itself a grave shortcoming that it has not been possible in retrospect to inquire into how the information was handled. The handling of this case warrants the following further statements for my part. the Swedish authorities required to respect the terms restricting the use of the information imposed by the in ? participates in international cooperation between states on issues relating to the investigation and prosecution of crimes. This cooperation is intended to enable states to launch or complete legal proceedings with inter- national ramifications. This cooperation offers the possibility of, inter alia, ensuring that measures applied in the course of criminal proceedings can be executed abroad. The legal regulations on which international cooperation is based consist, where is concerned, of both legislation and also various international conventions and bilateral agreements with other states. Legal Assistance in Criminal Matters Act (ILACMA) (2000:562) contains provisions on procedures for legal assistance in criminal cases. They enable various investigatory measures to be undertaken in Swe- den at the request of another state and abroad at the request of . The legal assistance may, as in the case here, involve searching property and con- fiscation (Sub-section 5 of the first paragraph of Section 2 of Chapter 1). 2 007 /0 8:JO1 B I L A G A 10 When information is provided within the framework of international assis- tance, evidence can be supplied on condition that it may only be used for a specific purpose, most often the one stated in the request. Section 5.1 of the ILACMA laid down, at the time when the legal assistance in this case was requested, that if a Swedish authority in a case involving legal assistance had received information or evidence from another state pursuant to an interna- tional agreement that was binding on and that included conditions that restricted the use of the information or evidence in the investigation of a crime or legal proceedings related to crime, the Swedish authority was to comply with these conditions irrespective of the provisions of any other legis- lation or statute. This provision was taken without any substantial changes, insofar as it af- fected prosecutors and courts, from Section 1 of the Act with Certain Provi- sions on International Cooperation in the Area of Criminal (1991:435). The travaux préparatoires of that act stated that one reason why legal regula- tions were needed in this area was that some of the conventions and agree- ments entered into by or that it intended to enter into contained con- ditions that restricted the possible uses of the information obtained. For Swe- den such undertakings could lead to conflicts between the provisions of the conventions and agreements and, for instance, various regulations in Swedish law about the obligations of the authorities to fulfil their official functions, for instance the mandatory requirement for prosecutors to bring charges laid down in 20.6 of the Procedural Code (government bill 1990/91:131 p. In addition it was stated that the new regulations should not be limited to conditions laid down in international agreements entered into by the Govern- ment. If the authorities in a foreign state were prepared to assist Swedish authorities with information in a specific case with the proviso that it could not be used for other purposes, Swedish authorities should be enabled to make such an agreement. However, an agreement of this kind presupposed that the Government, pursuant to the provisions of 10.3 of the Instrument of Government, had instructed the authority to make the agreement. It was fur- ther said that the prohibition against using information or evidence in a way that was in breach of an agreement made with a foreign state was to apply not only to the authority that had received the material but also to other authori- ties to which the provision applied (see the bill cited, p.18 and 23.) The international agreements to which Section 5.1 of the ILACMA applies are listed in the Notification of Agreements referred to in the ILACMA issued in 2005 (2005:1207). At the time of this case they were listed in the 2001 Notification. As has pointed out, the convention of 19 1990 on the application of the Schengen Agreement of 14 1985 (Schengen Conven- tion) is the international agreement that could be of interest in this case. Arti- cle 50.3 in the convention contains a regulation on the restriction of the right to use information or evidence that has been obtained through mutual legal assistance in a criminal case. The parties to the convention are, as laid down in Article 50.1, obliged to assist each other with regard to offences against legal regulations and ordinances on excise duties, value added taxes and cus- BILAGA 10 20 07 /08 :JO1 In this particular case, however, as indicates, the legal assistance was not granted for investigation of a crime of this nature. The Schengen Convention is therefore not applicable. The question then arises of whether in this case and can be considered to have reached the kind of agreement to which the provi- sions of Section 5.1 of the ILACMA nevertheless apply. It can be seen from Section 10.1 of the Instrument of Government that it is the Government that enters into agreements with other states. However, pur- suant to Section 10.3 of the Instrument of Government, the Government may empower an administrative authority to enter into certain international agree- ments. Section 19 of the Ordinance on International Legal Assistance in Criminal Cases (2000:704) authorises the Office of the Prosecutor General to enter into agreements with a foreign authority which include restrictions in the right to use the information or evidence supplied to a Swedish prosecutor. This authorization was the result of awareness that certain practical prob- lems had arisen with the system that had previously prevailed. There could be difficulties in acquiring authority from the Government quickly enough to enter into an agreement with another state that contained restrictions on us- age, for instance when the Swedish investigators were already in the foreign state and could not get access to the material before the conditions laid down had been accepted. It was therefore considered important to set up a system that would make it quick and simple for a Swedish prosecutor to obtain per- mission to accept the conditions laid down by the other state for the assistance it was prepared to provide in a Swedish preliminary investigation (cf. govern- ment bill 1999/2000:61 p. Section 4 of the regulations issued by the Prosecutor General that were in force at the time (RÅFS 2000:5) about the management of cases of interna- tional legal assistance stated that the Prosecutor General was to be contacted if a foreign authority placed restrictions on the possible use of information or evidence as a condition for providing international legal assistance. Since , in the corresponding situation, the current regulation re- quires consultation with before conditions can be accepted (Section 6 of the Regulations for Prosecutors (ÅFS 2005:14) on the Management of Cases of International Legal Assistance). It can be assumed that the most common situation is that restrictions as a condition for the provision of the information requested are imposed before the information is handed over to the prosecutor. In this particular case, how- ever, the prosecutor was informed of the conditions at the same time as the information was provided. It is reasonable to suppose that in a situation like this the foreign state considers that it can supply the information because it assumes that its conditions will be respected in . The primary method of ensuring compliance with the condition is, as has been made clear, through an agreement of the kind referred to in Section 5.1 of the ILACMA, which in its turn requires, when no convention with general effect is applicable, that the Prosecutor General enters into an agreement by virtue of the authorization granted in Section 19 of the Ordinance on International Legal Assistance in 2 007 /0 8:JO1 B I L A G A 10 In the situation we are dealing with here, therefore, in my opinion the prosecutor was required to contact what is now the Office of the Prosecutor General before making use of the information. When received the documents with the conditions imposed, it was therefore incumbent on him to submit the case to the Prosecutor General at that time. This was not done. The shortcomings in the way the dealt with the material could, as argues, lead to the conclusion that the was not bound by the conditions imposed by the in . I for my part, however, consider that an agreement that was binding on was, nevertheless, in force. I base my conviction on the following reasoning. The principles that have developed in international practice in the area of treaties are largely reflected in the 1969 Convention on the of Treaties (the Convention). According to Article 7 of the Convention an individual is consid- ered to represent a state for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the state to be bound by a treaty if, for instance, it appears from the practice of the states concerned or from other circumstances that their intention was to consider that person as representing the state for such purposes and to dispense with full powers. If the representative of a state enters into a treaty when according to national law he is not authorized to do so, it can be considered invalid. The representatives lack of authority may not, however, according to Article 46 of the Convention, be cited as a ground for invalidity unless the viola- tion of the national law was manifest and concerned a regulation of funda- mental importance. A violation is manifest if it would be objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith. Through its ordinance the Government has authorized the Prosecutor Gen- eral to enter into agreements with foreign authorities that involve restrictions of the possibility of using information supplied to Swedish prosecutors. This means that even without any special authorization he has the power to repre- sent within the framework of the authorization given to him and must certainly be understood to have these powers by a foreign authority. In the case in question was represented by a prosecutor at the Na- tional . Without making any objection to the condi- tions imposed by the in , he has received and used the information supplied. This must have been seen by the foreign authority as acceptance of the conditions on the part of . No represen- tative of the prosecution agency of another state can, of course, be required to ensure that he is negotiating with a Swedish prosecutor who is acting on be- half of Prosecutor General or to question whether the prosecutor is dealing with the case in a way that complies with Swedish national legisla- tion. If a Swedish prosecutor enters into an agreement that he is not authorized to make, it cannot be considered to be manifest that he is exceeding his pow- BILAGA 10 20 07 /08 :JO1 ers in the laid down in the Convention, at least not since the Government authorized a representative of the to make agreements. It would therefore be in breach of the principles that apply to the relationships between states in this area to claim that such an agreement is invalid. In my opinion the condition imposed by the in must therefore be regarded as enjoying legal support by virtue of an international agreement that is binding on in the way required for application of Section 5.1 of the ILACMA. Has the Taxation Authority failed to comply with an obligation to respect the condition imposed? As has been pointed out, it has been impossible to determine the circum- stances in which the material was supplied to . The prohibition against using material subject to a restrictive condition applies however, as pointed out above, not only to the authority requesting the material but to other authorities as well. Irrespective of the information re- ceived, or thought she had received, from , it was of course incumbent on the Taxation Authority to make its own appraisal of whether the information could be used in taxation cases and presented in hearings before a general administrative court. In this case the condition was worded to exclude any use of the material in either the process of investigation of a crime or as evidence in criminal proceedings in any case other than the one for which international legal assis- tance has been granted. The Taxation Authority has, in my impression, considered that the condi- tion only restricted possible use of the material in some other criminal con- text and that as the cases before it were not of that nature there was nothing to stop the authority from using it. In addition, the Taxation Authority seems to have believed that another reason why the information could be used was that the decisions in the tax cases could provide some of the basis for the standpoint later to be adopted by the in its preliminary criminal investigation. However, the very wording of the condition entails the conclusion that the material could not be used in any other case than the one for which the legal assistance had been granted. The context in which the condition was imposed can give rise to no other interpretation of its meaning. The information was acquired by virtue of the provisions in the ILACMA and was provided by the foreign authority for the investigation of a certain specified crime. The condi- tion imposed must therefore be interpreted, also against this background, to mean that the information could not be used for any other purpose than inves- tigation of a crime of the kind specified when the legal assistance was granted. I can therefore come to no other conclusion than that the Taxation Author- itys assessment that the condition only meant that the information could not be used in any other criminal proceedings was erroneous. This applies even if the Taxation Authority considered that decisions in the tax cases could 2 007 /0 8:JO1 B I L A G A 10 be significant for the in its continued preliminary criminal investigation. Finally it can be pointed out that the wording of the provisions in Section 5.1 of the ILACMA was changed on 1 2005. The current regulations state that if a Swedish authority receives information or evidence through legal assistance from another state to be used in the investigation of a crime or legal proceedings arising from a crime and conditions apply that restrict the use of the information or evidence because of an international agreement that is binding on , the Swedish authority is to comply with the conditions irrespective of the provisions of any other law or statute. One of the reasons for this change appears to have been the need to make it clear that such liberal interpretations of restrictive conditions as those pro- posed by the Taxation Authority in this case may not be made (cf. govern- ment bill 2004/05:144 p. I have established, with regard to the treatment of this case by the , that when received the information together with the condition restricting its use, he should have asked the Prose- cutor General to determine whether an agreement on these terms should be made. For his failure in this respect he merits criticism. I have however found that a binding agreement must be considered to have been made, even though was not empowered to accept the condition imposed on behalf of , and that the was therefore obliged to observe the condition restricting the use of the material imposed by the Prosecution Authority in . The information should not, there- fore, have been divulged to the Taxation Authority, even though naturally could be given access to it in her capacity as expert in the criminal investigation. As it has been impossible to determine the circum- stances in which received the information I cannot, however, allege that failed to meet his obligation to comply with the condition by supplying the material to for use in the taxation case. When it comes to the way the case was handled by the Taxation Authority I cannot criticise for gaining access to the information con- cerned.