frsrdg · H004JO1 · 2012-11-07 00:00:00 — This right may not be limited unless it is authorised by law and is necessary in a democratic society in the view of a number of purposes listed in the article. The delimitations of this protected area are, as has been seen, not distinct. The method used in this preliminary investigation was described in the plan for the operation as infiltration of the target individual, i.e. The way in which this was undertaken has been described above. The extent to which each single one of the measures adopted against R the initial sur- vey, establishing a personal profile, the numerous manoeuvres to induce R to take part in one activity or another, the carefully managed actions intended to rekindle his interest in criminal behaviour and arouse his avarice, etc. violated his right to respect for his private life can be discussed. But there can be no doubt that taken in their entirety this is how they must be assessed, particularly if one takes into account the very long period concerned and that they were cumulative phases of deepening intrusion into Rs life. The investi- gatory measures in their entirety therefore constituted an encroachment of Rs rights as laid down in Article 8. The Convention permits restrictions of the rights of individuals to respect for their private lives, in connection with criminal investigations, for instance, but then first and foremost imposes the requirement that the investigating authority has support for doing so in its domestic legislation, which must moreover meet fundamental principles of the rule of law. As has been shown in the account of the legal provisions, this means among other things that the legislation must state clearly when measures may be adopted and that there is protection against arbitrary actions or abuse. Swedish law contains no regulations at all about infiltration of individu- als and in principle none about infiltration in general either. It has not been possible on the basis of the legislation to predict that the investigating authori- ties had the authority to intervene in Rs private life in the adopted, nor was there any protection against arbitrary actions or abuse. Neither of the two features of the legal support required in Convention were, in other words, fulfilled. Article 8 of the Convention has therefore been vio- lated, irrespective of whether it would have been possible in different legal circumstances for the operation to have been covered by the restrictions per- mitted by the Convention. The fake employment interview Those suspected of crimes have the right during investigations to remain silent and not to incriminate themselves and also the right to the assistance of a defence counsel. When someone suspected on reasonable grounds is ques- tioned, they are to be notified of the suspicion and their right to a defence counsel. This is laid down jointly by Convention, the CJP and the OPI. The praxis of the ECHR can also be understood to mean that those 2 012 /1 3:JO1 B I L A G A 10 suspected of crimes should be informed of their right to remain silent and not to incriminate themselves. These regulations are based, however, on normal criminal investigations in which the authority investigating the crime questions suspects or subjects them to the open and official exercise of its powers in some other way. It is not self-evident that this applies in the same way to investigatory procedures that are not disclosed to the suspect and where the authority investigating a crime adopts more informal working methods. In my opinion it would, at any rate, be going too far to require officers involved in an investigation to have to assess all the time whether an individual who can provide information of specific interest is suspected of a crime on reasonable grounds or not. What occurred in this case did not, however, involve the acquisition of information of this kind. The background to the operation against R was that the prosecutor in charge of the investigation wanted to avoid notifying R that he was a suspect and was also afraid that R would not say anything, in other words avail him- self of his right to remain silent and not to incriminate himself. The investi- gating authority therefore created with no basis in law a situation in which R could be questioned by officers without being aware of it. The aim was to seek evidence that could be adduced in a court of law. The procedure involved, in other words, circumvention of the rights of a suspect. In this context there are grounds for recalling the opinion expressed by the ECHR on the right not to incriminate oneself: The right, which the Court has previously observed is at the heart of the no- tion of a fair procedure, serves in principle to protect the freedom of a sus- pected person to choose whether to speak or to remain silent when questioned by the . Such freedom of choice is effectively undermined in a case in which, the suspect having elected to remain silent during questioning, the authorities use subterfuge to elicit, from the suspect, confessions or other statements of an incriminatory nature, which they were unable to obtain dur- ing such questioning and where the confessions or statements thereby ob- tained are adduced in evidence at trial. (, § 50, also cited above.) What is stated here must, in my opinion, apply not only when suspects have been given the opportunity to exercise their rights but also when, as was the case here, they have deliberately been denied the chance to do so. Section 12 of Chapter 23 of the Code of Judicial Procedure Section 12 of Chapter 23 of the CJP stipulates that it is not permitted during questioning to use unwarranted measures in order to elicit a confession or a statement of particular implication. Examples of such unwarranted methods are the use of knowingly false information, promises or hints of special treat- ment, threats, force or driving the suspect to the point of exhaustion. The wording of the provision applies to questioning but can be considered to ex- press a more widely applicable principle (cf. SOU 1982:63 p. It should, in my opinion, be taken into account in investigatory procedures intended to induce individuals to supply information to the in situations which are B I L A G A 10 20 12 /13 :J O1 to use the phrasing of the ECHR the functional equivalent of interroga- tion (, § 52). The expression unwarranted measures is a general one and elastic. In ear- lier legal texts the expression has been taken to mean that all unfair methods are forbidden (, Rättegången i brottmål enligt RB [Criminal trials pursuant to the Code of Judicial Procedure], 3rd. ed., p. Even though this may seem imprecise, the provision embodies a value judgement that few are likely to oppose, which is that information may not be elicited from indi- viduals through threats or coercion, nor by inducing them unduly to make statements that they would not otherwise have made. The investigating authorities have claimed that when R supplied the in- criminating information during the interview, he was under no coercion, the setting was relaxed and that the question of the hotel fire in had not been suggested to him. When the question was posed to R, which according to the information was worded more or less as we have heard something about a fire and that you started it for someone ? he had, however, for over a year been subject to systematic grooming intended to induce him to answer exactly as he did. This grooming, planned on the basis of the personal profile of R produced by a psychologist, included arousing Rs avarice, to use the wording of the document, in the form of for the life of luxury that the individuals who had wormed their way into Rs life were pretending to live. The instructions followed by the officers/operators also included making sure that R felt that loyalty and frankness were important, while at the same time he was to understand that the information he supplied could be checked, in other words that he would be taking a risk if he lied. Finally it was made clear to R that the job he was being offered presumed that he was willing and able to commit unlawful acts. In view of this, no appraisal of whether what R was exposed to was unwar- ranted or not can be restricted to the circumstances in which the employment interview took place and the way in which the questions were worded. The entire procedure, from the initial survey to the final interview must be taken into account. As has been shown, this means that for a long time R was sub- jected to carefully tailored, penetrating psychological and social influence. To subject a suspect to something like this is, in my opinion, not compatible with the value judgement that finds expression in Section 12 of Chapter 23 of the CJP. The operation undertaken by the NCID that was a central feature of the pre- liminary investigation was not fully documented in the files on the prelimi- nary investigation nor was it included in the rest of the investigatory material. These records can be found in the NCIDs files. They should have been in- cluded in the dossier on the preliminary investigation. 2 012 /1 3:JO1 B I L A G A 10 Collectively the measures adopted constituted encroachment of the right to respect for private life laid down in Article 8 of Convention. According to the Convention, encroachment of this kind requires a basis in law that fulfils the fundamental demands of legal security. No such basis exists. The procedure meant that Rs rights as a suspect were deliberately circum- vented. The method adopted is incompatible with the value judgement enshrined in Section 12 of Chapter 23 of the CJP. The principles that apply to the maintenance of records during preliminary investigations were not fully complied with. In the absence of statutory provisions on the kinds of measures adopted in respect of R, the legal situation may have been viewed as unclear. Generally speaking, however, this cannot be taken as a justification for a public author- ity to extend its powers. Where encroachment of the freedoms and rights of individuals is concerned, the rule is that what is not allowed is forbidden. Even though I am refraining, for the reasons stated initially, from assessing the actions of the individual officials involved, I am critical of the standpoints adopted by the authorities in this respect. The criminal investigation into this case was undertaken, other than from the legal viewpoint, in a professional . The records on file at the NCID make it easy to trace what was done and why. The decision to undertake the operation was made at a senior level. The prosecutor in charge of the investi- gation was continually informed of its progress and has subsequently assumed full responsibility for it. These are all indispensable requirements if advanced criminal investigation procedures are to be adopted. But they are not enough. In addition, the investigatory procedure is required to comply with the regula- tions laid down by law. These regulations must be formulated on the basis of generally defensible principles. If methods of the kind used in this case are to be adopted, the questions they give rise should in other words be regulated by law. Only in this way can their principles be scrutinised in a democratic legislative process and the conclusions enshrined in the form of regulations that both public authorities and individuals can relate to. The records show that the assumed that R could be innocent. The measures adopted in such circumstances must seem acceptable, if it turns out that there are no grounds for suspicion. Legislation governing such measures should take this as its point of departure. This is also the import of the re- quirements in accordance with the law or prescribed by law in several B I L A G A 10 20 12 /13 :J O1 places in Convention, which refer not only to official statutes but also the rule of law. The question of legal regulations to govern special investigatory proce- dures is the subject of a current enquiry. A copy of this adjudication is there- fore being submitted to istry of for their perusal. On the basis of the experience gained in my enquiry, there are reasons for the following to be taken into account during the legislative process. The investigatory procedure dealt with here differs from infiltration in its usual meaning, which generally focuses on infiltration of factions or criminal groups. It involved instead approaching a suspect in this context the word infiltration is misleading and grooming him in order to acquire information that could be valuable for the investigation. Furthermore, infiltration usually focuses on thwarting criminality that is taking place or on criminal intelligence intended to prevent crime. In this case it involved the prosecution of offences that had already been committed. These differences need to be taken into account when the need of investigatory procedures of this kind is considered. Generally speaking, interest in prosecuting for offences that have already been committed should probably not justify such far-reaching inter- vention as the prevention of criminal acts that are taking place or are immi- nent. The appraisal made here means that currently it is not possible to use the investigatory measures adopted in this case lawfully. Today as well, the pro- vision that came into force about the significant invasion of personal privacy that takes place without consent and involve surveillance of the individuals personal circumstances, second paragraph of IoG 2:6, raises obstacles to any survey of the kind undertaken of R. A related investigatory method is de- scribed in the case of the disappearance of the woman, which the Supreme Court found, as has been noted, included an unwarranted element and can be understood to state that central protective regulations on the conduct of crimi- nal hearings had been set aside. What occurred in that case was not lawful either. There are reasons to assume that similar methods have been used in other cases as well, including those that have led to prosecution (cf. the report of inspection referred to above). Further light has to be shed on this to provide a broader basis for an assessment of whether and, if so, how this investigatory concept can be included in the regulations on criminal procedure. Nevertheless, methods of this kind should not, in my opinion, be consid- ered unless they are exceptionally important for investigations of very serious crimes. An additional requirement should be that they are only used when suspicion is very well grounded: there should be very risk that that the individual is innocent. Customary investigatory measures should have been tested without result and it must be likely that decisive information for the investigation will be acquired, in other words a needs analysis is required. In order to guarantee the rights of the suspect, methods of this kind should only be invoked within the framework of a preliminary investigation, with the maintenance of records and insight that this implies. This means that the 2 012 /1 3:JO1 B I L A G A 10 prosecutor in charge of the investigation will be responsible for decisions and their implementation. This responsibility will also include careful considera- tion of the legal issues that can arise in each individual case before decisions are made, so that what takes place complies with current procedural regula- tions and does not encroach on the freedoms and rights of individuals to any greater extent than provided by law. B I L A G A 10 20 12 /13 :J O1 Criticism of a prosecutor responsible for the questioning of a juvenile suspect who did not have a defence counsel and of a authority and the officer in charge of the interrogation for errors in connection with the way it was conducted. (Adjudication of the Parliamentary Ombudsman , 28 October 2011, reg. Summary of the adjudication: In this adjudication, which dealt with a seven- teen year-old youth who together with some friends was suspected of having defamed a large number of girls of the same age, the main issue was entitle- ment to a defence counsel when being questioned by the . A number of circumstances among them the age of the suspect, the na- ture of the evidence and the fact that statements made during questioning could be adduced as evidence, mean that all the questioning should have been undertaken in the presence of a defence counsel. A suspect is entitled to waive the presence of a defending lawyer, but if so this has to be stated unequivo- cally in a legally correct and proper records must be kept. The adju- dication points out that, generally speaking, information obtained from ques- tioning when no defence counsel has been present is given less weight as evidence. Access to a defence counsel when being questioned by the is one of the criteria for a fair trial laid down in Convention. The adjudi- cation assesses whether this entitlement had been infringed. As some of the evidence consisting of information from the interrogation was in prac- tice rejected at the final court hearing, it is not considered that such in- fringement occurred. J.R., who will be referred to as J below and who was seventeen years old at the time, was charged together with five other youths for gross defamation as well as other offences. They were accused of having produced films of a kind that had been circulated on the Internet. Their contents consisted of pictures of a large number of girls of their own age together with captions that de- scribed them in grossly abusive sexual terms. J was sentenced by the district court on two charges of gross defamation to 45 hours of juvenile community service and ordered to pay a large amount in damages to the complainants. He appealed to the court of appeal, which rejected one of the charges of gross defamation. In the end he was sentenced to 20 hours of juvenile community service. In addition J was subject to an order for joint and several damages for a sum that according to the appeal court amounted to around ,000. The grounds given for this decision make it clear that the convictions were to a large extent based on information given when the accused were questioned by the while they were in detention and which they had denied during the court hearings on the grounds that they had felt they were under pressure and that they wanted to be released. 2 012 /1 3:JO1 B I L A G A 10 During the court proceedings after the verdict of the district court J submitted a complaint about the Authority in the County of to the Parliamentary Ombudsmen which included the following claim. He had agreed with a officer named to go to the station to answer some questions that wanted to ask about his moped, which had been confiscated because it had been tuned. When he arrived at the station he was placed instead in an interrogation room where another officer, , began to question him about the films. He denied any involvement but was subjected to a great deal of pressure and then admitted that he did indeed know something about them. He was informed that he was suspected of a crime and was asked if he wanted a lawyer. He said he did and gave the name of the lawyer he would like. He was then locked into a cell for the night. On the following day he was questioned on two occasions by and again subjected to a great deal of pres- sure. There was no defence counsel present. He felt that the situation was threatening because he had been locked up with no contact with his parents and no access to a lawyer. After an initial review of the documents in the case, the authority was asked to submit a statement. The response of the authority was submitted by the acting Chief Commissioner, , and included information from the officer in charge of the interrogation, Inspector , and Sergeant . With regard to the circumstances surround- ing Js arrival for questioning the authority stated the following: Both a memorandum drawn up by Sergeant and Js own statement show that on the morning of J telephoned Löf- gren and wanted to talk about his confiscated moped. It was then decided that J would come to the station in after lunch. After had spoken to J he then remembered that Js name had been mentioned by other suspects in the investigation. therefore contacted his superior, Detective Chief Inspector , and then the prose- cutor, upon which the prosecutor said that J was to be questioned as there were reasonable grounds for regarding him as a suspect. When J arrived at the station he was placed in an interrogation room. After a while, Inspector entered the room and began to question J and that was when he was told that he was suspected of gross defamation. Questioning is normally preceded by a summons unless there are grounds for detaining someone for interrogation. In the case in question, the informa- tion suggests that no summons to attend for questioning was issued at any time before J arrived at the station to talk about his confiscated moped. When the prosecutor made the decision that J was to be questioned and in- formed that he was for good reason suspected of a crime, in a normal case J would have been summoned to attend, his legal guardians would have been informed and also summoned to attend and, if prompted by the circum- stances, the guardians and the suspect would also be informed of the possibil- ity of requesting the assistance of a public defence counsel from the very first interrogation. The authority is unable to assess the correctness of the prosecutors decision that on this occasion J was to be questioned and told that he was suspected of gross defamation. B I L A G A 10 20 12 /13 :J O1 The authority considers that it is very important for suspects to be given every opportunity to exercise their rights. When someone who it is believed can provide information in a preliminary investigation is summoned to attend for questioning, misleading information may not be given to per- suade them to come to the station. In this case there is nothing to show that misleading information was used during Js telephone conversation with to persuade J to come to the station. Only after being con- tacted by did the prosecutor decide that J should be questioned and informed that he was suspected of gross defamation. On the basis of the information available, therefore, the authority does not consider that J was deceived into coming to the station to be questioned on suspicion of gross defamation. It is unfortunate that J has been given this impression. According to the authority there are no records to show when Js legal guardians were informed. Information provided by the authority shows, how- ever, that his mother was present at the station during or after the first interrogation and that she was then present at the station from time to time. The authority considered that Section 5 of the Act with Special Provisions on () had been complied with. , according to the authority, were there any records to show what contacts had been made with the social services. The authority had been informed by the social services in that there was nothing to show that they had been involved in connection with the measures dealt with here concerning J. In its summing up, the authority pointed out that there were short- comings in the records. The authority intended therefore to make sure that officers in charge of and involved in enquiries were informed in some appro- priate of the importance of complying with the current provisions in the as well as the requirement pursuant to Section 21 b of the Ordinance on Preliminary Investigations (OPI) to keep records of notification/summons to attend for questioning. It was also stated that the authority had decided on specific internal monitoring of investigations in which juveniles were sus- pects.