frsrdg · GY04JO1 · 2010-11-10 00:00:00 — also states that he offered . his service number, which would later make it possible to identify who the complainant had been in contact with. In view of this, the reason given by for not wanting to give his real name when the complainant insisted on it seems irrational. The authority has not, how- ever, found anything to support the allegation that gave false information about his rank. By and large, nothing that has come to light in this case can give the authority any reason to establish that in the situation concerned had acceptable grounds for giving any other name than his own. The opinion of the authority is therefore that should have responded to the complainants question about his identity by providing his real name. should also have understood that . was asking for the name of his superior officer and explained that he was not on duty on a Sunday. . seems however on the following day to have managed on her own initiative to get hold of the acting commander (who should correctly be described as the temporary head of the unit in Al- ingsås) and obtained clarification of certain issues. It is important for the confidence of the general public in the that of- ficers behave in their contacts with individuals in a way that inspires their trust and respect. own statements about the event in ques- tion prompt questions about whether his conduct in other respects when re- cording the complaint was of the kind that can reasonably be required of him according to the Ordinance. The authority regrets the treatment experienced by . on 13 2008. In this context the authority would like to point out that a national project is under way to produce a joint value system which can be endorsed by officers. The authority intends to continue with this endeavour to further raise the confidence of the general public in the . . was offered an opportunity to submit a rejoinder to this official response. The adjudication of 2 October 2009 by the chief Parliamentary Ombuds- man Mr. included the following comments. Treatment of individuals reporting a crime In this case it has been disclosed that . and dis- agreed among other things about the classification of the event she wanted to complain about: a dog fight. As the authority points out, the Parlia- mentary Ombudsmen have pointed out on a number of previous occasions that in principle the authority is required to record notifications of offences. The main rule is that the must accept such a notification with- out delay. Notification may be submitted orally or in writing to any authority. There are grounds here for pointing out in particular that no ap- 2 010 /1 1:JO1 B I L A G A 10 praisal of what has occurred should be made in connection with the filing of a complaint. This assessment should be made instead during the ensuing as- sessment of whether a judicial enquiry should be launched or not. In the ini- tial stages the should also in principle accept the statements made about the classification of the crime by the complainant (cf. Parliamentary Ombudsmen 1989/90 p. should therefore properly have recorded the complaint that . wished to make without starting a discussion of whether the requisite criteria in a particular provision were fulfilled or not. This is an appraisal to be made by the investigating officer in subsequent analysis of the complaint. It seems very probable that the conversation between . and would not have become so heated if he had not challenged her information and ended up in a legal discussion about various criteria for classification of the crime. I find that cannot avoid criticism of his actions in this re- spect. Using a fictitious name To begin with I would like to point out that the enquiry into this case has confirmed the allegation in complaint that when asked what he was called gave a fictitious name. It is also equally clear that no decision had been made to give what is termed high-level protective identity. My understanding is that gave a fictitious name because he had previously been victimised and been advised by the personnel security unit in to give his service number is situations of this kind. When . insisted on being given his name he stated instead that he was called , which he regards as an alias familiar to his fellow officers. (Parenthetically it can be mentioned that Inspector is the name of a character in the Swedish film called I lagens namn [In the name of the law] from 1986.) The enquiry does indeed reveal that in was the subject of a case concerning personnel security because of certain threats but that this case was closed after only a few months as the threats were no longer considered serious. I would also like to point out here that nothing in this case suggests that . behaved threateningly to , even though she was perhaps heated and angry. As stated by the authority, conduct on the ba- sis of the motives he has described was moreover irrational. I can fully agree with this judgement. He should also of course, as the authority also points out, have given the name of his superior officer when this was requested, understanding that he was not the person referred to, and also ex- plained to . that his superior was not on duty on the day in ques- tion. It is not at all unusual for the to encounter individuals who are chal- lenging, assertive and irascible. In situations like this it is, of course, very B I L A G A 10 20 10 /11 :JO1 important for individual officers to show restraint and curb any frustra- tion they may feel. If the public are to feel confidence in the , it is im- portant for officers to act in their contacts with individuals in a way that in- spires trust and respect. In addition officers are to behave politely, considerately and firmly and also demonstrate restraint and avoid what could be considered outbreaks of hostility or pettiness (Section 1 of Chapter 4 of the Ordinance). In my opinion the contacts of officers with indi- viduals should also be characterised as far as possible by frankness, which means that they should unless special circumstances prevail because, for example, the situation is threatening give their names when asked and not hide behind service numbers and definitely not behind invented aliases. To sum up, has in my opinion in giving the complain- ant a fictitious name disregarded the obligations incumbent on him in a way that constitutes the kind of misconduct that pursuant to Section 14 of the Act on Public Employees should lead to a disciplinary penalty. For this reason I am referring the case to for its review. Finally I note that the authority regrets this occurrence. In a decision of tional issued a disciplinary penalty to in the form of a reprimand. In stating its reasons declares that did not comply with the regulations on the conduct of officers in the execution of their duties and that his actions were surprising and had impaired public confidence in the . 2 010 /1 1:JO1 B I L A G A 10 Pronouncements on the right to defence counsel criticism of a officer because a detainee was not allowed to contact a defence counsel etc. Per Stadig, an attorney, submitted a complaint about the authority in the county of . According to the complaint, after the arrest of Per client, P.P., he was not allowed to have his defence counsel present during his interrogation or to contact him. In addition Per Stadig was not allowed to get in touch with P.P. because the claimed that he had not been appointed by the court to defend him in the case. According to Per Sta- dig, however, a previous appointment had been made. The documents on file at the local office of the (case no. AM-157850-08), District Court (case no. B 5597-08) and the authority (case nos. K34533-08 and K35616- 08) were requested and examined. They contained the following information. On 11 October 2008 a complaint was made against P.P. for gross violation of the integrity of a woman or, alternatively, assault (K34533-08). He was arrested, questioned and remanded in custody. He was released from deten- tion on 13 October. During the period of his remand Per Stadig was appointed by the court as his public defence counsel and, according to the record sheet at the cells, Per Stadig spoke to his client on two occasions. On 19 October 2008 a new complaint was made against P.P. alleging as- sault and unlawful threats concerning the same person (K35616-08). A war- rant was issued for the arrest of P.P. on 20 October and he was apprehended on the same day. He was questioned on 20 and 21 October. No lawyer was present at these interviews. According to the record sheet, P.P. did not at any time request to be allowed to speak to a lawyer but there is a note on the document saying we do not know who his lawyer is. On 23 October P.P. was remanded in custody by the district court. was the lawyer appointed as public defence counsel for P.P. on 22 October. At the remand hearing on 23 October P.P. was represented by the lawyer . After Per Stadig had contacted the court at the end of October, was relieved of her position and P.P. was repre- sented by Per Stadig from that time onwards. An oral statement was taken from Inspector who reported as follows. On 21 October he questioned P.P. Before the interview P.P. stated that Per Stadig had previously been his public defence counsel and he wanted him to act in this capacity again. As far as could see, neither Per Stadig nor any other lawyer had been appointed as P.Ps public defence coun- sel. He informed P.P. of how the questioning was to take place and that P.P. could opt to terminate it whenever he wished. He also asked whether P.P. B I L A G A 10 20 10 /11 :JO1 could agree to being questioned without the presence of a lawyer, which P.P. expressed a to get in touch with Per Stadig. rejected this request on the grounds that Per Stadig had not been appointed as P.Ps public defence counsel. On the day before the remand hearing, 22 Oc- tober 2008, found out that had been appointed to act as public defence counsel. During the afternoon he telephoned , who promised to contact P.P. The authority was requested after the officers involved had been heard to provide information and a statement on the allegation in the complaint to the Parliamentary Ombudsmen that P.P. had not been allowed to contact Per Stadig or to have him present while being questioned. The response of the authority (Chief Commissioner ) in- cluded the following. The file on this case shows that P.P. was arrested on 20 October 2008 for gross violation of the integrity of a woman. He was remanded in custody during the period 20-22 October 2008. The record sheet from the cells shows that on 21 October 2008 P.P. requested to be allowed to speak to his lawyer. On this occasion the officers on duty contacted the station commander to find out whether a public defence counsel had been appointed for P.P. As no lawyer had been appointed for P.P. for this charge, he was given this information. has stated in his own complaint to the Parliamentary Ombudsmen that he was denied the right to have his defence counsel present or alternatively to speak to his defence counsel while he was being questioned on 21 October 2008. The opinion of the authority Section 3a of Chapter 21 of the Procedural Code lays down that a public de- fence counsel is to be appointed if a suspect so requests. In addition, Section 8 of the same Chapter states that the defence counsel for someone who has been arrested or is on remand may not be refused the right to meet the client. The right to meet a defence counsel may, however, be restricted under certain circumstances. The Parliamentary Ombudsmen have declared in an adjudication issued on that the possibility of not allowing consultation with a defence counsel may only arise in extremely few cases after an individual assessment and on objectively justifiable grounds. With regard to the refusal of the authority to allow P.P. to contact the lawyer Per Stadig during the time he was in custody the following has come to light. The record sheet shows that at 4.30 p.m. on 21 October 2008 P.P. re- quested to be allowed to speak to a lawyer. then specifically said that he wanted to speak to Per Stadig has not been shown by the written records or the interviews with the staff on duty and the station commander. The authoritys routine procedure is, however, always to ensure that contact is established without delay when detainees request to speak to their public defence counsel, if one has been appointed. In cases where no public defence counsel has been appointed, suspects are informed that they may at their own expense contact a defence counsel and that a request for the appointment of a public defence counsel should be submitted as soon as possible to the district court. The enquiry has not disclosed, however, whether the authoritys rou- 2 010 /1 1:JO1 B I L A G A 10 tines were followed in this case, as the relatively long period that has elapsed means that the officers on duty have been unable to offer any more detailed account of the circumstances. Since responsibility for the cells has been taken over by the National Prison and . As a result, new routines have been introduced to ensure that the right of suspects to defence counsel is respected. Prison and local manager has informed us that an entry is made in the record sheet when a suspect requests a defence counsel and the authority is then informed. Moreover, P.P. claims that he was refused the right to speak to his defence counsel when he was questioned on 21 October 2008 beginning at 6.31 p.m. The authoritys enquiry reveals the following. The interrogating officer in this case was Detective Inspector . He refusing P.Ps request to be allowed to speak to his public defence counsel in connection with the questioning. could have considered a refusal of his request to do so may, according to Bihlar, be the information that no public defence counsel had been appointed on his behalf in the case in question. The enquiry has not disclosed whether P.P. said specifically that he wanted to speak to Per Stadig or any other specific defence counsel. If this had been the case, Bihlar says that according to the routine in force he would have informed P.P. that he was able to do so at his own expense. Bihlar states that there was no reason to refuse P.P. the possibility of speaking to his defence counsel. With regard to P.Ps allegation that he was not allowed to have his defence counsel present when he was questioned at 6.31 p.m. on 21 October 2008, Bihlar states that at the beginning of an interrogation he routinely asks the suspect if he wants a defence counsel to be present and that he did so on this occasion as well. is said to have waived the possibility of having counsel present. Bihlar states that he then asked P.P. if he wanted any specific defence counsel at a potential hearing in the district court, upon which P.P. is said to have declared that he wanted Per Stadig as his public defence counsel. This has also been noted in the interrogation record. As the interrogating officer, in the morning of 22 October 2008, Bihlar then contacted the Regional Prosecution Office to ensure that a public de- fence counsel would be appointed for P.P. was appointed on the same day. During the morning it was brought to Bihlars attention that the public defence counsel had not been in contact with P.P. and as a result, al- though he was off duty, he contacted to make sure that P.P. would be able to contact his public defence counsel as P.P. had expressed the wish to meet his counsel before the impending remand hearing which was to take place on the following morning. To sum up, the authority does not consider that P.P. was denied the possi- bility of speaking to his public defence counsel or to have him present during the interrogation. With regard to P.Ps claim that he was refused the right to speak to his defence counsel while he was remanded in custody, the enquiry has not been able to determine whether the authoritys routines were com- plied with or not. The transfer of responsibility for the cells to the Prison and has resulted in new routines being laid down concerning how written records of requests for defence counsel are to be kept. Because of the attention drawn by the Parliamentary Ombudsmen to the right of suspects to legal assistance, the authority has also launched internal training to raise, if possible, awareness of their right to contact their defence counsel. Per Stadig was offered an opportunity to submit a rejoinder to this official response. The adjudication of by the chief Parliamentary Ombudsman . included the following. B I L A G A 10 20 10 /11 :JO1 In view of what has been submitted by the authority on the question of the legal regulations, I would like to start by pointing out the following. The defence counsel for someone who has been detained or remanded may not be denied the chance to meet his or her client. Those who have been ap- pointed as public defence counsel also have an unconditional right to speak to their clients in private (first paragraph of Section 9 of Chapter 21 of the Pro- cedural Code). On the other hand the right of defence counsel to be present when suspects are questioned is subject to the provisions of the fourth paragraph of Section 10 of Chapter 23 of the Procedural Code, which lays down that this is permit- ted if it will not be detrimental to the investigation. The possibility of denying defence counsel the right to attend during questioning of a suspect is, how- ever, extremely restricted. This possibility can only exist in exceptional cases, i.e. if it must be assumed that the behaviour of the defence counsel will dis- turb the interrogation or even render it impossible to conduct it in an orderly . This presumes, however, the refusal of the defence counsel to com- ply with the instructions of the interrogating officer concerning the right to speak during the interrogation (Parliamentary Ombudsmen 1956 p. 96, in particular p. 116 f. and Parliamentary Ombudsmen 2009/10 p. The legal doctrine is that, on the whole, defence counsels have an uncondi- tional right to attend when their clients are questioned (cf. Rät- tegång V [Trials V], 7th ed., p. 133 and Fitger, [The Proce- dural Code], vol. 2, p. Fitger also offers an additional example to the one above of when a defence counsel may be refused permission to attend, which is when the individual employed by the suspect is generally unsuitable. In a number of adjudications Court of Human Rights has considered the question of whether refusing defence counsels the right to attend initial interrogations is in conflict with Articles 6.1 and 6.2 of Convention for the Protection of Human Rights and Fundamen- tal Freedoms. In a judgment issued after the adjudication in Parliamentary Ombudsmen 2009/10 p. 68, the Grand Chamber of the court has called re- newed attention to the importance of access to legal advice and that this right is particularly important when serious charges are involved. The court points out that Article 6.1 means as a rule that the suspect should already have been provided with access to a defence counsel during initial interrogation, unless it can be shown that in view of special circumstances there were com- reasons for limiting the right of the suspect in a specific case. The court also declared that even if these compelling reasons exist, no such re- striction whatever its justification may unduly prejudice the suspects rights and that an irredeemable prejudice of this kind arises if, without access to a defence counsel, the suspect makes statements under interrogation on which a conviction can be based (judgment of Court of Human Rights in Salduz v , ). The court has admittedly considered that a suspect may waive the right to the assistance of a defence counsel provided that this is explicit and voluntary. Such a waiver must, how- 2 010 /1 1:JO1 B I L A G A 10 ever, take place in an unequivocal and be safeguarded by minimum guarantees that correspond to its importance (Yoldas v , judgment issued 23 February 2010). In addition I have pointed out that the fact that a lawyer has not been ap- pointed to act as public defence counsel is not an acceptable reason for deny- ing him or her the right to attend during questioning. If a suspect wants the assistance of a lawyer, it does not matter whether the lawyer has been ap- pointed to act as public defence counsel or represents the individual on a private basis (Parliamentary Ombudsmen 2009/10 p. To sum up, therefore, a defence counsel for someone who has been de- tained or remanded in custody has an unconditional right to meet the client and the scope for refusing to allow a defence counsel to attend when the sus- pect is questioned is extremely restricted. The complaint to the Parliamentary Ombudsmen mainly alleges that when P.P. was deprived of his on 20 October 2008 he was not allowed to contact Per Stadig, who was also denied the right to attend when P.P. was questioned on the following day. The reason for this is said to have been that Per Stadig had not been appointed to act as public defence counsel, which was incorrect. The enquiry shows that Per Stadig was appointed as P.Ps public defence counsel during the first half of October 2008. Consequently, a public defence counsel had been appointed for P.P. when the complaint to the that gave rise to this detention was made. I would like to point out, therefore, that an appointment as a public defence counsel is not restricted to the offences for which it has been made. Such an appointment should be considered to include offences which the client may be suspected of later during the inves- tigation. The appointment should also include acts that become the subject of new investigations, if it is intended to bring charges for these acts within the framework of the same criminal hearing (Fitger, [The Pro- cedural Code], vol. 2, p. 21:33 and SvJT 1971 ref. p. With regard to the first allegation that P.P. was not allowed to contact Per Stadig, as far as can be shown in this case, it has not been established at what stage P.P. expressed this and to whom it was addressed. The complaint to the Parliamentary Ombudsmen claims that he had already made this clear on 20 October but the record sheet contains the note that P.P. requested to be allowed to speak to a lawyer on the afternoon of 21 October. The possibility that P.P. expressed this wish on repeated occasions cannot be excluded. Irrespective of the circumstances in this regard, it seems that the of- ficers involved were unaware that Per Stadig had already been appointed to act as P.Ps public defence counsel. In his oral statement to the Parliamentary Ombudsman, declared that he did not know that a public defence counsel had been appointed for P.P. In my opinion this is remarkable. had, after all, been held in custody by the only a week earlier and had then had contact with Per Stadig, who is identified on the record sheet as his public defence counsel. In the subsequent complaint to the reference is made to the previous case. A rapid review of the case should reasonably al- ready have made the correct circumstances clear and therefore enabled the B I L A G A 10 20 10 /11 :JO1 to ensure that P.P. was able to contact his defence counsel when he requested to do so. It goes without saying that it is of fundamental impor- tance for the legal rights of those who have been deprived of their for the to ensure that they have the correct information about whether a public defence counsel has been appointed on their behalf. I am critical of the failure to do so. When later P.P. is alleged to have been denied the right to have Per Stadig present while he was questioned on 21 October it can be observed that the interrogation record contains the note that P.P.