frsrdg · H004JO1 · 2012-11-07 00:00:00 — A psychological profile has been made by the psycholo- gist [] to enable the targeted individual to be approached and cultivated in the best way as well as the use of operators whose profiles offer the best matches. The operational plan also went on to describe the objective was to infiltrate the targeted individual for a substantial period to procure information that could strengthen suspicions about the crime or mean that they could be re- jected and thus provide valuable evidence for the preliminary investigation. The actual operation lasted for about one year. Before the adoption of the plan in 2008, R had been persuaded to take part in a fictitious market survey. By participating R won a trip, which was intended to establish a contact between R and the NCIDs operator (in this context an operator means a officer who adopts a fictitious identity to gain entry to envi- ronments in which the are interested). The trip was a pleasure trip and involved R travelling together with a number of other winners to for a weekend during which, for instance, they watched a football match be- tween the English league teams Arsenal and . One of the operators struck up a special friendship with R and intimated in the meetings that followed their return to that there might be a demand for his services. Among these tasks mention can be made of a trip to , dur- ing which R was to be given a trial assignment of driving a boat from Ger- many to . The trip took place but the boat turned out to be faulty so R had to return without it. He did, however, receive the payment he had been offered (about under the table and his out-of-pocket expenses). These and other activities were preparatory phases leading up to the final objective of the operation, which was to offer R employment in a fake Neth- company, when he was to be induced to provide information of inter- est to the investigation of the arson in . B I L A G A 10 20 12 /13 :J O1 The final phase took place during and 2009 when R met opera- tors who claimed to be representatives of the company at a hotel in , where he filled in application forms before travelling with them to the to be interviewed by another operator, who was acting as the representative of the company. During this phase the District Court issued orders on two occasions allowing interception of Rs telephone (25 May1 and 22 June20 ). The employment interview took place on 29 . During the operation R had gradually been groomed so that he would be attracted by the potential earnings and at the same time understand that the job in question presumed that he was no stranger to the idea of acting illegally and required unswerving loyalty to his employer. In this respect the records describe the objective for instance as: Intensifying the relationship and culti- vating [R] to implant gradually a discreet but more criminal element and the value of loyalty, and elsewhere: to arouse [Rs] avarice in concrete terms. This was summarised in the final report (Memorandum 2 2009) in the statement that R at the final employment interview was to have formed an impression of the company that aroused his avarice and which would help to induce him to confess to previous offences and criminal behaviour. According to the report on the interview, R was asked about the fire by the operators saying that they had heard something about a fire he had started on someones behalf. R then stated that he had started the fire, described how and who had given him the assignment and that he had been paid for doing so. R was prosecuted in District Court. The circumstances presented above are also described in the judgment (B 2119-09, annex 4). The court did not consider that what had occurred was unlawful. R was convicted of aggra- vated arson and sentenced to ten years imprisonment for arson. An appeal was lodged against the judgment of the District Court. In its rul- ing issued on 27 2010 (B 644-10, RH 2010:62) the Court of Appeal for Southern dealt with an objection made by R that the fake em- ployment interview should be considered an interrogation that had not been conducted in compliance with the provisions of the Swedish Code of Judicial Procedure (CJP). After a thorough discussion of this point, the Court of Ap- peal found that, with reference to the principle of unrestricted appraisal of evidence, in its assessment of the charge it was not prevented from including what had come to light. This applied even though the investigatory methods used by the during the fake employment interview did not comply with the regulations in the CJP on how a judicial investigation should be con- ducted. On the other hand, no appraisal of whether what had occurred was against the law was made. However, an assessment was made of whether the legal proceedings in their entirety involved encroachment of Rs right to a fair trial according to Convention. After accounting for the contents of the Convention and the practice of Court of Human Rights (ECHR) the Court of Appeal went on to state the following: 2 012 /1 3:JO1 B I L A G A 10 In this case the individuals who took part in the employment interview and the rest of the stay in the have given more or less the same picture of what took place. In view of this information and against the back- ground of the praxis of Court of Human Rights, the Court of Appeal has made the following considerations on the issue of whether Arti- cle 6 has been violated. To begin with the Court of Appeal is able to determine that the employ- ment interview was faked and R had therefore travelled to the in misleading circumstances to take part in the interview in the belief that he might possibly be given a well-paid job. His participation in this spurious procedure was, however, voluntary and he was under no pressure or coercion to provide any information about the fire during the interview. It has also been made clear that for the the intention of this provocation was not primarily to induce R to confess to starting the fire but instead to seek more open-mindedly for information that could either link him with or free him from suspicion that he may have been involved. The interview took place in the lobby of a hotel and, according to those who have testified, in a calm and pleasant atmosphere. When the asked R if he had had anything to do with a fire, nothing specific was said about this applying to the fire at the in . It was R himself who linked the officers ques- tions to the fire in and who then gave information about his own par- ticipation. The then asked a number of follow-up questions relating to the fire that R also answered. Information has also been given in the case that both R and [those charged with him] had been informed in detail before the hearing in the District Court about how the entrapment had been arranged. The accused have therefore subsequently had complete insight where the entrapment methods are concerned and have not been deprived through in- adequate information of the possibility of questioning the authenticity, reli- ability or other aspects of the evidence. The prosecutor has also adduced additional evidence in this case to show that R started the fire that has been assessed by the District Court as supporting the charge. This applies for in- stance to testimony, the technical investigation into the causes of the fire and its development as well as the enquiry into Rs presence and behaviour at Central Station on the night of the fire. As the Court of Appeal has already pointed out, appraisal of whether the rights of an accused pursuant to Article 6 of Convention have been violated is not only restricted to the issue of whether the misrepresenta- tion that took place can be considered lawful or not. Instead an appraisal pur- suant to Article 6 takes the entire trial procedure into account and requires an overall assessment of whether suspects have had the possibilities to defend themselves against the charges brought against them. In such an appraisal, it is clear that both R and [those charged with him] had ample opportunity to question the evidence acquired through misrepresentation and that the psy- chological impact this involved for R must be considered relatively restricted. Rs confession in connection with the misrepresentation does admittedly constitute an important proportion of the prosecutions evidence but the prosecutor also cites other significant evidence to support the charge. What has been disclosed about the misrepresentation does not therefore, in the opin- ion of the Court of Appeal, provide grounds for the allegation that it irrevoca- bly undermined Rs possibilities of a fair trial and an overall assessment of the circumstances in the trial procedure gives the Court of Appeal no cause to find that the hearing was in breach of Article 6 of Convention. The entrapment to which R was subjected means that at a stage when he was suspected for good reason of involvement in arson he was not guaranteed the legal rights that a interrogation according to the CJP would have provided. This has meant that his possibilities of defending himself against the suspicion of criminal activity were impaired, which could at least mean B I L A G A 10 20 12 /13 :J O1 that reduction of the penalty could be considered. The same is true of the circumstance that Rs account and the questions asked by the in con- nection with the fake employment interview in the were not documented in the way they would have been in a regular interroga- tion. This means that there is no way for a court of law or other judicial au- thority to check how the entrapment took place. There are, for instance, no recordings of what was said during the employment interview that can clearly demonstrate that the questions and follow-up questions asked by the officers were not leading questions or unwarranted in some other respect. On the other hand, the officers who participated in the employment inter- view and who have given evidence during the trial have stated that before the interview it had already been decided to allow R to speak freely and that they would not put any pressure on him or try to influence him to make statements pointing in any one direction. According to the officers, the employ- ment interview also took place according to these guidelines. in the hear- ings has R himself raised the objection that the officers questions or follow-up questions were unreasonable. After considering these points the Court of Appeal has reached the conclu- sion that the possibilities of R and [those charged with him] of exercising their rights in the respects cited were not impaired to such an extent that there are sufficient grounds for reducing the sentence. This means that the penalty awarded to both of them is ten years imprisonment. The judgment of the Court of Appeal gained lagel force. Complaint to the National Unit for Prosecutions , the attorney-at-law appointed as Rs public defence counsel, complained about the measures adopted in Rs case to the National Unit for Prosecutions at the Public Prosecution Office. In its Chief Prosecutor, Per , decided not to launch a preliminary enquiry. Some of the reasons given were that what had taken place was permissible misrepresentation. Per pointed out in this connection that there is very scope for penalties for official misconduct in cases where judgement is involved. This decision was reviewed in February 2010 by the Director of the Public Prosecution Office, , who did not amend it. He con- sidered that the actions of the officers before and during the interview had not taken place during the exercise of their official powers. Complaint to the Parliamentary Ombudsmen then submitted a complaint on the matter to the Parliamentary Ombudsmen. The Chief Parliamentary Ombudsman decided on 23 2010 after reviewing what had hitherto been disclosed that no preliminary enquiry should be launched. He referred, among other things, to the major lack of any given directives about what forms of action are lawful when undertaken by an official in connection with the implementation of infiltration and entrapment operations. He found no grounds for assuming that any punishable misuse of their powers had been committed by officials subject to the supervision of the Parliamentary Ombudsmen. He did decide, on the other hand, to scrutinise the actions of the prosecutor and officers in connection with the employ- 2 012 /1 3:JO1 B I L A G A 10 ment interview in the within the framework of a routine inspec- tion case. Statements were requested from and the Re- gional Public Prosecution Office. The first was submitted on and the second on . retired from his post as Chief Parliamentary Ombudsman at the end of 2010. The case was subse- quently referred to me for adjudication. The complaint of , the defence counsel, to the Parliamentary Ombudsman is that the fake employment interview was an interrogation. His grounds are that it was undertaken by the in the course of a preliminary investigation and R was subjected to it because he was reasonably suspected of the criminal offence under investigation. He was not notified during this interrogation in the way laid down in the CJP that he was a suspect and did not have any possibility of being assisted by a defence counsel or make use of his right not to answer questions. The complainant alleged that this procedure violated Rs rights according to Article 6 of Convention. The acting head of the NCID, , submitted a response on behalf of , which included the following. By virtue of long-standing practice, typically speaking, the stipulations on interrogation in the CJP are not intended to apply to conversations that occur while the are involved in surveillance. The opposite state of affairs would have an impact on a great many of the surveillance operations undertaken by the . The NCID also pointed out that organising fake employment inter- views in which it is up to the individuals themselves to decide whether they will take part is one type of measure that is used internationally in cold-case contexts. The method was developed in and officers at the NCID received training in the method from their Canadian counterparts. The NCID summed up its opinion as follows. The fake employment interview was undertaken during a preliminary investi- gation into a serious crime. The misrepresentation that the employment inter- view could be considered to involve was, per se, lawful. The employment interview formed one stage of an infiltration operation. Infiltration is a na- tionally and internationally accepted method in crime prevention. Hitherto there have been no specific legal provisions on the use of the method. The employment interview was, however, conducted in a way that conforms to accepted practice in surveillance operations in which conversations take place between officers and suspects in situations that cannot be viewed as interrogations during preliminary investigations. The NCID con- siders that the measures conformed in every respect to current legal provi- sions. The NCID would welcome specific legal provisions in this area. The response of the Public Prosecution Office was submitted by the Prosecu- tor-General, , who did not consider that the prosecutor in charge of the investigation had acted wrongly or inappropriately. According to the Prosecutor-General the infiltration measures did not constitute interro- gation in the meaning of the CJP. It asserts for instance that An interrogation B I L A G A 10 20 12 /13 :J O1 is nothing other than a situation of the kind provided for in Chapter 23 of the CJP and Ordinance on Preliminary Investigations (OPI), in which the power of the state is balanced by the provisions that protect the suspect, and others. It also contains the following: My opinion is that the regulations on interrogation cannot at all be considered to apply when the during an infiltration operation are acting under cover and speak to suspected individuals. This means that it is not the appli- cability of the regulations on interrogation that should set the limits for what kind of entrapment operations are permissible. The prosecutor in charge of the investigation, , has submitted his own statement in which he gives a detailed account of his con- siderations, assessments and the measures he adopted. He points out for in- stance that it is unsatisfactory that the legislators have not laid down in more detail what is admissible and inadmissible in this context and continues: The legal situation is not explicit and leaves no scope for interpretation. It is a delicate matter for the legislators to balance the interests of the investi- gators, the principle of the unrestricted admissibility of evidence and the rights of individuals to their integrity. In addition, it is less than satisfactory from a working environment perspective that law enforcers are not always provided by the legislators with information about what is admissible or in- admissible. I, on my part, have carefully considered each stage of this opera- tion and have, to the best of my abilities, endeavoured to guarantee the quality of the results of the entrapment to guarantee the fairness of the process and the best interests of the investigation. Finally I would like to make it clear that in my capacity as leader of the in- vestigation I was obviously responsible for the exercise of official powers involved in the entrapment operation to acquire evidence. Respect for private life: Article 8 in Convention Convention for the Protection of Human Rights and Funda- mental Freedoms (Convention) has the force of law in . In interpreting the Convention the praxis that has developed at Court of Human Rights (ECHR) is of central importance. Article 8 in Convention, which is headed to respect for private and family life has the following wording: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The limits of the area that is protected are difficult to define. The right to respect for private life has many aspects (see , Mänskliga rättigheter i europeisk praxis [Human rights in European praxis], 3rd. 301 f.). These include for instance the physical and psychological integrity of a per- 2 012 /1 3:JO1 B I L A G A 10 son (see Moreham, The right to respect for private life in Con- vention on Human Rights: A re-examination, EHRLR 2008, p. 49, with refer- ences to the praxis of Court of Human Rights). In legislative contexts the Government has stated that the protection of- fered by the Convention for private life cannot be considered to prevent the from using infiltration to become acquainted with individuals in order to information than can lead to the elucidation of a crime. The Gov- ernment did, on the other hand, share the opinion presented by of the that there was a more general risk of violation of respect for private life if an authority monitored and noted the personal activities of individuals to provide more systematic documentation of their lives. (See Govt. 2005/06:149 and SOU 2003:74 p. Article 8.2 lays down that a state signatory to the Convention has the pos- sibility of restricting the protection of private life. The fundamental provision is that this is in accordance with the law. According to the practice of the ECHR this involves two requirements: one is that there is clear support for the measure in national legislation, the other that this support includes the necessary guarantees for the rule of law. This is made clear for instance in Bykov v. (judgment issued by the Grand Chamber 10 2009, application no. 4378/02), in which the court stated: The Court reiterates that the phrase in accordance with the law not only requires compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of surveillance by public authorities, in this instance the , domestic law must provide protection against arbitrary interference with an individuals right under Article 8. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to such measures. (§ 76) In the case of Bykov the Court found that the requirement of legal support was not fulfilled. The Court was therefore able to determine that Article 8 had been violated without having to delve into the issue of whether what had occurred had been necessary in a democratic society. The protection afforded by the Instrument of Government against surveillance and monitoring Individuals are protected against significant invasion of their personal integ- rity if this occurs without their consent and involves the surveillance or sys- tematic monitoring of their personal circumstances through the second para- graph of Article 6 of Chapter 2 of the Instrument of Government (IoG). This provision came into effect in 2011: it did not therefore apply when the inves- tigation under review here was undertaken. This protection may be restricted by law and on the conditions laid down in Article 20 of Chapter 2 of the IoG, which only permits limitations to satisfy a purpose acceptable in a democratic society and stipulates that no limitation may go beyond what is necessary for the purpose which occasioned it. B I L A G A 10 20 12 /13 :J O1 The preparatory work, Govt. 2009/10:80, include the following. The protection is general and not restricted to any technical system (p. Measures adopted against an individual and which for reasons of secrecy may not be divulged are, typically speaking, particularly sensitive from the point of view of infringement of integrity, mainly because in such circumstances individuals lack any possibility of taking steps to safeguard their integrity themselves (p. What is decisive in assessing whether a measure is to be considered surveillance or monitoring is its effect, not the prime purpose of the measure (p. The protection only applies to invasion which because of its intensity, extent, the sensitivity of the information from the point of view of integrity or other circumstances involves a significant encroachment of an individuals private sphere (p. What is to be considered surveil- lance and what regarded as monitoring has to be assessed on the basis of what these concepts mean in normal language (op. Fair trial: Article 6 of Convention etc. The sections of Article 6 of Convention, which is headed to a fair trial that are here are worded as follows: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: [ ] (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of so require. A provision on a fair trial has also been included since 2011 in the stipula- tions of the IoG on fundamental freedoms and rights (second paragraph of 2:11). This is based on the fundamental regulation in Article 6.1 (see SOU 2008:125 p. 426 and Govt. 2009/10:80 p. 156 ff.).