frsrdg · GX04JO1 · 2009-11-12 00:00:00 — He also explained to that he wanted him to instruct the officer to defer the interrogation until his appointment as N.As public defence counsel had been confirmed. In addition also informed that he was unable to attend an interrogation of this kind before the end of a court hearing on the following day. After the officer had spoken to , he told that N.A. was to be informed that he was suspected of a crime and that a time would be arranged for interrogation on the following day. After the hearing had come to an end on the following day and had been appointed to defend N.A., he was informed by his client that he had already been questioned and that the interrogation had lasted for one and a half hours. During the interrogation N.A. was informed that he was suspected of murder and an additional seven cases of attempted murder. B I L A G A 10 20 09 /10 :JO1 account given by N.A. was one in which self-defence was claimed, which meant that the information given during the interrogation was of vital signifi- cance in the proceedings that would follow. When the documents in case-file 102E-998-07 had been procured from the local public prosecution office and scrutinised the following became apparent. One page of the journal contained an entry that on 4 February 2007 a pub- lic prosecutor had decided that N.A. was to be detained for questioning. In addition it was noted that questioning pursuant to Section 9 of Chapter 23 of the Procedural Code had begun at 8.22 p.m. on 5 February 2007 after which a decision to arrest N.A. was made by at 9.30 p.m. According to the record of the interrogation, the questioning took place from 8.23 until 9.20 p.m. was notified that he was suspected of murder and then gave an account of his actions on the night in question. He was questioned by Detec- tive Chief Inspectors and and it was recorded that he was inter- rogated pursuant to Section 8 of Chapter 24 of the Procedural Code. The record also contained a note that N.A. had not wanted a defence lawyer at the interrogation. In addition it was recorded that he wanted to be represented by the lawyer whose name he did not remember who had accompanied him to the station. The case was referred to the regional public prosecution office which sub- mitted information and an official response to the allegations made in complaint. The custody record contained a note that /had summarised the finding in the case and that on 5 February 2007 had decided that there was good reason for suspecting N.A. The times noted for the beginning and end of the interrogation were the same as those entered in the local public prosecution offices journal, i.e. and 9.30 p.m. The custody record contained no record of any instructions that had been given to the officers. was given an opportunity to submit a rejoinder to this offi- cial response and stated, among other things, that the note in the record of the interrogation that N.A. did not want the presence of a lawyer did not reflect what he really felt. As he had accompanied his client when he went to the station, it was of course evident that N.A. wanted assistance during the interrogation. The case was referred to the Authority in the County of which submitted information and an official response on why the interroga- tion of N.A. had been more extensive than instructed by the prosecutor. In his adjudication dated the Chief Parliamentary Om- budsman . included the following. The enquiry reveals that on the evening of 5 February 2007 went to the in accompanied by his client N.A. who was to be 2 009 /1 0:JO1 B I L A G A 10 questioned in the course of an investigation into a suspected murder. On that occasion did not permit to take part in the inter- rogation with reference to the fact that he had not been appointed as public defence counsel. The second paragraph of Section 10 of Chapter 23 of the Procedural Code lays down, in the wording that was relevant at that time, that during interroga- tions held pursuant to the second paragraph of Section 18 at a suspects re- quest both the suspect and the suspects defence counsel are entitled to par- ticipate. The presence of defence counsel is also permitted during other inter- rogations if this is not detrimental to the investigation. Since the corresponding provision now forms the fourth paragraph and although it has been edited and reworded it has not changed in substance. The issue of whether the presence of defence counsel may be detrimental to an investigation has, as pointed out by the regional public prosecution office, been reviewed by the Parliamentary Ombudsmen (Annual Report for 1956, p. It is stated there (pp. 116) that an assessment has to be made on the basis of the circumstances in each individual case and that a refusal must be based on objectively acceptable grounds. When other witnesses than the accused are questioned there may be detrimental impact on the continued investigation, as defence counsel are not bound to keep information secret from their clients. When, however, a suspect is being questioned, the presence of a defence counsel cannot be prohibited on this ground. The possibilities, therefore, of refusing to allow a defence counsel to be present when a suspect is questioned must be extremely limited. The Parliamentary Ombudsman considered that a possibility of this kind could only exist in exceptional cir- cumstances, namely when it had to be assumed that the behaviour of the de- fence counsel would jeopardise the possibility of conducting the interrogation in an orderly or even make it impossible. This presupposed, however, the refusal of the defence counsel to comply with the interrogating officers regulations on the right to express an opinion while the questioning was tak- ing place. Doctrinally it is asserted, as pointed out by the regional public prosecution office, which refers, for instance, the adjudication cited above, that defence counsel are on the whole unconditionally entitled to attend when their clients are being questioned (cf. Rättegång V [Trials V], 7th ed. 133 and Fitger , del 2 [The Procedural Code, Vol. 2] p. Fit- gers examples of when the attendance of defence counsel may be prohibited includes, in addition to the situation described above, when the individual retained by the suspect is generally unsuitable. On a number of occasions, Court of Human Rights has been asked to review whether refusal to allow a defence counsel to attend initial interrogation by the is in conflict with Articles 6.1 and 6.3 of the Euro- pean Convention on Human Rights and Fundamental Freedoms. The court has ruled that Article 6 normally requires an individual to be allowed the assistance of a lawyer even during initial questioning. This right, which is not laid down explicitly in the Convention, can only be restricted if there are good grounds for doing so. What is decisive is whether the suspect, in view of the B I L A G A 10 20 09 /10 :JO1 proceedings in the case in its entirety, has been denied a fair trial (ECHR judgment of 8 February 1996 in v. The , for more details see Danielus, Mänskliga rättigheter i europeisk praxis [Human rights in European praxis], 3rd ed. was suspected of a very serious crime. He came to the station in the evening accompanied by . There can have been no doubt that he wanted the assistance of as his defence counsel. As this was outside the office hours of the District Court, it was impossible then to request the appointment of as public defence counsel for N.A. has, however, stated that he told that for the time being he was representing N.A. as his private defence lawyer. As the regional public prosecution office has stated, the fact that had not been appointed as a public defence counsel was not an ac- ceptable reason for refusing him permission to be present when the question- ing took place. If a suspect wants the assistance of a lawyer, it is of no signifi- cance whether the lawyer has been appointed as a public defence counsel or is representing the individual privately. has any other objectively acceptable reason been presented for not allowing to be present. therefore merits grave criticism for not permitting to be present while N.A. was being questioned. When it comes to the way in which the initial interrogation of N.A. was carried out, has confirmed the information given by that he gave oral instructions to a officer that when questioned N.A. was merely to be informed that he was suspected of the crime and that a more thorough interrogation was to be deferred until the following day. I have no reason to doubt this information. In spite of the instructions that had been given, a relatively long and de- tailed interrogation of N.A. took place on the evening in question. According to the authority, it has not been possible to determine who received the instructions from . As far as can be seen from the official re- sponse, neither of the interrogating officers had been in contact with before they began to question the suspect. As, therefore, insofar as the enquiry reveals, they were unaware of instructions, I have no grounds for criticising them for the way in which the interrogation was con- ducted. I do, however, find it remarkable that no officer can remember the instructions given by . As, however, I consider that the enquiry shows that gave oral instructions about the conduct of the initial interrogation to a officer, I nevertheless consider that there are grounds for criticising the authority for the failure to forward the prosecutors instructions to the interrogating officers so that the questioning could be re- stricted to comply with them. This event also demonstrates the importance of records of instructions that have been given. 2 009 /1 0:JO1 B I L A G A 10 The disciplinary accountability of a officer for her abuse of her official position in a private matter. submitted a complaint that Detective Sergeant Kickis Åhre Älgamo at the Söderort department of County Authority had committed a serious abuse of office in expressing views about him in a discriminatory and abusive in the course of a dispute on custody and right of access. In his complaint provided the following detailed account. He grew up in and came to in 1999 after having married. In his wife gave birth to their son but in the following month the couple separated. Since then they have been involved in continual disputes on custody and right of access in various courts. His ex-wife has, for instance, attempted to inflame the situation with honour-related issues. In this con- text she sought the assistance of Kickis Åhre Älgamo, who in 2004 and 2007 wrote in her capacity as a officer two documents on culture-related conflicts. In these documents, which were based on his ex- wifes one-sided description of the situation, Kickis Åhre Älgamo expressed discriminatory and abusive opinions about on the ground of his ethnic origin. She described honour-related problems in the Middle East and then tried to draw general conclusions and pin them on him. Kickis Åhre Älgamo also testified at a court hearing in . In this way she has supported and backed his ex-wife in an unprofessional in the ongoing disputes that have no relation to any form of criminality. The judgment issued by the City Court of on and the record of the main hearing in case T 8556-02 were procured. These together with the documents attached to the complaint revealed the following. In a document dated 16 2004 with the name of the National Authority and its emblem in the top left-hand corner addressed to Those concerned and headed For crime prevention purposes, Kickis Åhre Äl- gamo claimed to shed light on problems linked to culture-related conflicts and describe the structure of society in . The description offered is a gen- eral one but she also expressed an opinion on the case in question. She writes, for instance, that There are therefore good grounds for [the ex-wifes] wor- ries that their son will be removed from and brought up/taken care of/given away to one of Maliks relatives who does not have a son and that there is probably a risk that [the son] will be taken away from in order to maintain the familys honour as the boy is Maliks son and has to ensure the continuation of his line. This document was signed Kickis Åhre Älgamo, Detective Sergeant WCU/Honour related violence. B I L A G A 10 20 09 /10 :JO1 contained details about how she could be contacted, all of them linked to the position she then held at the National Criminal Investigation Department. In Kickis Åhre Älgamo was called by ex- wife to testify in the dispute on custody and right of access then being heard. According to the judgment, Kickis Åhre Älgamo then stated that she had been a officer since 1988 and had ended up specialising in criminality linked to honour-related violence. In a document drawn up on 15 2007 with the name of Söderort District and the emblem of the authorities in the top left-hand corner, subject re [ex-wifes name] and headline Opinion on culture related prob- lem complex, Kickis Åhre Älgamo began by stating that in her role as a po- lice officer specialising in culture-related conflicts she had come into contact with ex-wife. Kickis Åhre Älgamo went on to say that her previous statement was still valid and that, in her view, an honour conflict still existed and had not been finally resolved and also that in the long run she could see an impending risk for the [ex-wifes] physical and mental health and of their joint child being taken on holiday to his former country and remaining there with his fathers kinfolk. This document was signed Kickis Åhre Älgamo, Detective Sergeant, specialist in culture-related conflicts. The telephone number given was to the Authority. The case was referred to the authority for information and an offi- cial response to the allegation in the complaint to the Parliamentary Om- budsmen. The authority (Deputy Chief Commissioner ) submitted a response and stated among other things that in the opinion of the authority there were grounds for reviewing Kickis Åhre Älgamos actions in the light of labour market legislation. submitted a rejoinder. In his adjudication dated the Chief Parliamentary Ombuds- man Mr. included the following. I would like to begin by pointing out that the Parliamentary Ombudsmen should not launch any enquiry into circumstances that are more than two years old unless there are special grounds for doing so. At the time of complaint, three years had already elapsed since Kickis Åhre Älgamo submitted her opinion in 2004. In view of this and taking into account that disciplinary penalties may only be issued to employees who have been notified in writing of the complaints against them within two years of the offence (Section 17 of the Act on Public Employees 1994:260), I have not found adequate grounds for going into more detail about the circumstances surrounding the document written in 2004. This must not, however, be taken to mean that I consider Kickis Åhre Älgamos actions in this context unobjectionable but merely as a statement that I have not found sufficient grounds for reviewing them. 2 009 /1 0:JO1 B I L A G A 10 I shall now turn to an appraisal of the opinion submitted by Kickis Åhre Älgamo dated 15 2007. The enquiry shows that the document in question was drawn up with the name of the authority and its emblem in the top left-hand corner: ac- cording to Söderort District its letter template was used. The subject of the document was re [ex-wifes name] and it was headed Opinion on cul- ture related problem complex. In addition the document was signed by Kickis Åhre Älgamo, with her official title. The document also gave the num- ber of her desk telephone at the Authority. It goes without saying that there is nothing to prohibit public officials from using the knowledge and expertise gained in the course of their duties for private concerns. On the other hand, there are good grounds for discussing how appropriate it is to use their official titles in situations of this kind. The Parliamentary Ombudsman has, for instance, previously expressed the opin- ion that judges should be cautious about using their official titles when acting as private individuals in a legal context and it is not permissible for judges to use their titles in a way that could be seen to exert pressure (see the Parlia- mentary Ombudsmens Annual Report for 2004/05, p. Similar arguments can of course be applied to officers. Furthermore, it is of fundamental importance for confidence in the that a document written by a officer in a private legal context is not given a form that could lead readers to feel that it is an official document and perhaps even that it expresses the views of the authority on the issue. It is obvious that a document, for instance, that is perceived as having been drawn up by a officer in the course of her or his duty is ascribed par- ticular significance. Letter formats with the name and emblem of a authority must not therefore be used to produce documents that lack any con- nection with the performance of official duties. If officers become involved in private concerns, it must therefore be made entirely clear that they are not acting in their official capacity or expressing opinions on behalf of the authority. In my view, the form taken by Kickis Åhre Älgamos document of 15 2007 makes the distinct impression that it has been produced in her capacity as a officer at the Söderort district. can its contents make it clear for the reader that, in spite of everything, it is Kickis Åhre Älgamos private view of the matter that is being presented. Like the authority itself, I consider that an action of this kind creating a private document in a way that makes it look as if it is an official production is highly inappropri- ate. In using her position as a officer in a private concern has, in my opinion, disregarded the obligations incumbent on her in her position in a way that constitutes the kind of abuse of office that accord- ing to Section 14 of the Act on Public Employees should result in disciplinary responsibility. My decision is, therefore, to forward this case to appraisal of this matter. B I L A G A 10 20 09 /10 :JO1 In a decision dated 18 2008, the National Boards Staff Discipli- nary Board imposed a disciplinary penalty on Kickis Åhre Älgamo that took the form of the deduction of five days salary. In the grounds given for its decision the staff disciplinary board first stated that Kickis Åhre Älgamos actions were, even if they did not form part of her duties, linked to her position as a officer in such a way that they could make them the subject of disciplinary review. The board then included the following. It is of fundamental importance for the general public and other authorities to be able to trust that documents which appear to have been issued by the really have been produced by the authorities. Particular signifi- cance is ascribed to a document from a authority. This trust must not be abused. Kickis Åhre Älgamos actions are likely to shake the trust of the general public and other authorities in the . In using the name and emblem of the authority and her official title in an ongoing legal dispute on the custody of a child she has disregarded the duties incumbent on her in her official position. This offence is so grave that it calls for a more serious pen- alty than a reprimand. She is therefore to be penalised by the deduction of five days salary. 2 009 /1 0:JO1 B I L A G A 10 Question of the restriction of the right of prisoners to worship In a complaint submitted to the Parliamentary Ombudsmen on 15 2008 against the National Prison and facility at Kumla, detainees held in the facilitys unit for prisoners who are to be deported after serving their sentences criticised the staff of the unit. Their grievances included the following. There were eight who were trying to practise their reli- gion in the unit. Three warders had made racist comments about them on a number of occasions. They had also stopped their Friday prayers, reported detainees who participated in them and in this context made comments such as this is a country and we are in . Their imam had been placed in isolation for one month on the grounds that he was a negative leader. Prison and submitted an official response on this case. In her adjudication of the Parliamentary Ombudsman . included the following. Among other things, Section 1 of Chapter 2 of the Instrument of Government guarantees all citizens in their relations with the public administration free- dom of worship. Freedom of worship means the freedom to practise their own religion either alone or together with others. And, unlike the regulations that apply to other freedoms and rights in the Instrument of Government, no re- striction of the freedom to worship is permitted. Section 15 of the Act on Correctional Treatment in Institutions (1974:203) stipulates that an inmate in a correctional institution who wishes to worship is, as far as possible, to be provided with the opportunity to do so. Section 12 of the same act lays down that an inmate is obliged to take part in activities and to occupy himself or herself as directed to. Section 9 makes it clear that inmates are to comply with the regulations in force in the institution and the instructions they are given by its staff. In this case the complainants, who according to their own statements are practising , have objected to attempts made by the institution on some occasion to interrupt their Friday prayers. Prison and Pro- bation Service has admitted that this has occurred. According to the National Prison and the reason for doing so was that the time for prayer coincided with their working hours. Some of the inmates were also B I L A G A 10 20 09 /10 :JO1 given written warnings because they did not comply with instructions from the staff to stop the prayers. The guarantee of freedom to worship means that regulations, measures or routines that are directed against any specific religious practise or obviously intended to obstruct a specific religious persuasion are prohibited. On the other hand this guarantee does not, in principle, entitle the practitioner of any faith to refuse to fulfil his or her obligations or require a public authority to adapt its operations to the needs of these practitioners in different ways. Where the inmates of a correctional institution are concerned, the deprivation of their in itself and the routines that apply in the institution for the sake of order and security constitute in fact restrictions on the scope open to the inmates to practise their religion. Practical consequences of this kind can- not, in my opinion, be regarded as restrictions of the freedom to worship in the meaning of the Instrument of Government. Consequently inmates in a correctional institution do not enjoy any consti- tutional right to refuse to take part in the activities stipulated for them so that they can pray instead. do the provisions of Section 15 of the Act on Cor- rectional Treatment in Institutions confer any such entitlement. There are therefore no grounds for criticising the institution.