frsrdg · H004JO1 · 2012-11-07 00:00:00 — It was pointed out, among other things, that a suspect is often in a particularly vulnerable posi- tion in the initial stages of a criminal investigation. In most cases this can only be compensated for by the assistance of a lawyer whose task includes helping to ensure respect for the right of an accused not to incriminate him- B I L A G A 10 20 12 /13 :J O1 self (§ 54). The court went on to state that access to a lawyer is one of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (§ 54). Its reasoning led to the following conclusion: Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently practical and effective [] Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interro- gation of a suspect by the , unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction whatever its justification must not unduly prejudice the rights of the accused under Article 6 []. The rights of the defence will in principle be irretrievably prejudiced when in- criminating statements made during interrogation without access to a lawyer are used for a conviction (§ 55). In this case the judgment of the ECHR can be summarised as follows. Salduz had been denied the assistance of a defence counsel when he made the state- ments that were used in evidence against him. This could not be justified. The statements were admittedly evidence against him. His situation had undoubt- edly been affected negatively by the restriction of his access to a defence counsel while being questioned. These shortcomings could not be remedied during the later stages of the proceedings. The court concluded by taking note of Salduzs age and emphasised the fundamental importance of providing juvenile detainees with access to a lawyer. To sum up, the absence of a law- yer while he was in custody irretrievably affected his defence rights (§ 62). In its praxis the ECHR shows that it considers that a suspect can waive his rights according to the Convention and will then have to face the conse- quences. In this context the court has pointed out that neither the letter nor the spirit of Article 6 prevents individuals from waiving their rights, but has em- phasised at the same time that such a waiver must not run counter to any important public interest, must be established in an unequivocal and must be attended by minimum safeguards commensurate to the waivers im- portance. (Panovits v. , judgment issued , applica- tion number 4268/04, § 68). This case also concerned statements made by the suspect after he had been informed of his right to remain silent but had no access to a defence counsel. Like Salduz, Panovits was seventeen years old when he was questioned by the . Here the ECHR gave a more detailed account of the particular considerations required when a juvenile is accused of a crime, one of them that being particular stringency is needed if a waiver of the rights afforded by the Convention is to be accepted: The Court considers that given the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings, a waiver by him or on his behalf of an important right under Article 6 can only be accepted where it is expressed in an unequivocal man- ner after the authorities have taken all reasonable steps to ensure that he or 2 012 /1 3:JO1 B I L A G A 10 she is fully aware of his rights of defence and can appreciate, as far as possi- ble, the consequence of his conduct. (§ 68, see also § 67) The documents in this case do not reveal when Js parents were informed. It is, however, clear that this had taken place when the questioning began. There is nothing to suggest that the social services were involved in the prescribed . The current regulations on notifications and summonses to the par- ents or guardians and to the social authorities were not therefore complied with. The prosecutor, whose role was to direct the investigation, had issued in- structions that a young person was to be questioned and notified that he was suspected of gross defamation. It is the force, ultimately its senior officers, who are responsible for ensuring that the prosecutors instructions result in appropriate measures and that these are carried out in a correct man- ner and by qualified personnel (cf. the Parliamentary Ombudsmans adjudica- tion of 24 2011, reg. This responsibility also includes without detailed instructions from the prosecutor in charge of the investiga- tion making sure that routine measures take place such as notifications and summonses as laid down in Sections 57 of the . It is, in other words, the authority in that merits criticism for the fundamental short- comings that arose in this respect. The actions of the investigating officers in relation to J were initiated when J contacted the to ask for information about his moped. He then agreed with a officer that he would come to the station to discuss this. According to the statement from the authority, the officer subse- quently remembered that J figured in a preliminary investigation concerning gross defamation. The district prosecutor in charge of this investigation, , was therefore informed that J was going to come to the station. issued instructions that J should be informed that he was suspected of the crime of gross defamation and should be questioned briefly. As points out in her statement to the Parliamentary Om- budsman, there were grounds for taking J to the station in custody without any preceding notification. This could have caused J more distress and I can- not, therefore, consider that the circumstances surrounding his appearance at the station impaired his legal rights. From the perspectives that the have to take into account among them Section 17 of the OPI, which requires them to ensure that an interrogation does not attract attention I can even have some understanding of the way in which they took time by the forelock, as it were. can I see anything to indicate that the at- tempted to catch J off guard. The fact that the never informed J of B I L A G A 10 20 12 /13 :J O1 the planned interrogation means, however, that he was left with the belief that the subject to be discussed was his moped. From this point of view it was predictable that J was going to feel that he had been deceived. Now, after the event, I consider that this procedure was inappropriate. Partly because a public authority must always take great pains to behave in a straightforward and trustworthy , partly because it was probably one of the reasons why things went wrong. The normal procedure, as indicated by the authority in its statement to the Parliamentary Ombudsman, would have been to plan the interrogation and notify or fetch the suspect while at the same time considering what information was to be disclosed and preparing for the appointment of a public defence counsel. This is not how things worked out here and it is difficult to rid oneself of the suspicion that, to some extent at least, this stemmed from the improvised actions of the . The prosecutor in charge of the investigation has stated that she issued a di- rective that initially J was merely to questioned briefly. Afterwards a re- quest for the appointment of a public defence counsel was to be submitted. The head of the District Prosecution Office described this as a notification interrogation, i.e. when notification is given about the suspected offence and the suspect offered an opportunity to express a standpoint and whether or not they want a defence counsel. However, according to the records, the interro- gation lasted for more than one hour. The statement of the officer conducting the interrogation makes it clear that she was well aware of Js right to a de- fence counsel. She also interrupted the interrogation when J, once he realised what the subject was, wanted his mother to be informed and the presence of a lawyer. According to the officers own account, the two of them then re- mained sitting in the room where the questioning was taking place waiting for Js mother and the lawyer, upon which J began spontaneously to relate every- thing he knew about the crime that was being investigated. She entered this information in the record of the interrogation after first having asked J if she was allowed to do so. In view of this, I would first like to stress that an interrogation should have formal limits. If it has been interrupted, it should naturally not then continue in the form of an unstructured conversation. If the suspect discloses informa- tion outside the interrogation, this must not be entered into the records. If the information is of interest for the investigation, a separate record should be made, in for instance the case notes that form part of the investigation dossier irrespective of whether the suspect agrees or not. Secondly, I note that the contents of the record of the interrogation deal predominantly with the only matters that the officer involved, according to the statement she submitted as part of the Parliamentary Ombudsmans en- quiry, asked specific questions about after the official part of the interrogation had been interrupted (which computer had been used, when the films were made and which youths he mixed with). The information contained in the 2 012 /1 3:JO1 B I L A G A 10 record of the interrogation does not appear, in other words, to be only or per- haps even mainly the kind of thing that J stated spontaneously. In view of this, the officer conducting the interrogation, , merits criticism for her continuation of the interrogation in point of fact after it had been interrupted and her lack of respect for Js right to the assistance of a defence counsel. The prosecutor in charge of the investigation, who gave instructions that the interrogation should be brief and that a defence counsel should be appointed, cannot in my opinion be criticised for what in all essential respects seems to have been a blunder by the officer carrying out the interrogation. The right to defence counsel: certain general conditions Anyone who while being questioned is told that he or she is reasonably sus- pected of a criminal offence must at the same time be informed of their right to the assistance of a defence counsel during the investigation. Even if a sus- pect states that questioning can be carried out without the presence of a de- fence counsel, the official in charge of the investigation has to assess on ob- jective grounds whether or not this is the case (see the adjudications of the Parliamentary Ombudsmen cited above). The primary intention of entitling a suspect to a defence counsel at an early stage in a criminal investigation is to make sure that lack of knowledge of the investigatory procedure or the legal provisions will not leave them at the mercy of the or prosecutors but that they will be provided with access to the kind of information that will enable them to take full advantage of their rights. This means that the suspect must have access to a defence counsel. On the other hand, it does not automatically mean that a defence counsel has to be present when the suspect is questioned. During the criminal investigation and trial, however, the defence counsel plays a more extensive monitoring role. Compliance with the rules of proce- dure that guarantee the legal rights of suspects is normally enhanced if it is scrutinised from their perspective. It is therefore in the interest of for defence counsel not only to assist suspects with information and advice but also to be present when they are questioned and evidence is gathered in other ways. Js right to a defence counsel A public defence counsel must be appointed for a suspect under the age of eighteen, unless it is obvious that there is no need for one. The accusations levelled against J were serious ones. He ran the risk not only of a penalty but also of being ordered to pay a large amount in damages. The criminal investi- gation was relatively extensive with a number of suspects and a large number of aggrieved parties. In view of this, the circumstances left no scope at all for the view that no defence counsel was needed. On the contrary, it was clear that the legal provisions required the appointment of a defence counsel for J. This is also the assessment made by the prosecutor in charge of the investiga- tion. In principle, therefore, in this situation the appointment of a defence B I L A G A 10 20 12 /13 :J O1 counsel was required, irrespective of how the suspect was going to react to the accusation. This is also what was arranged after the first interrogation. When, before a preliminary interrogation, a suspect is already considered to need a defence counsel, it will also normally be necessary for the lawyer to be present at this interrogation (provided it is not restricted to notifying the suspect of the charge and a few brief questions, see above). In this case the suspect was a juvenile, which in itself enhances the need for a defence coun- sel. The nature of the evidence was in many ways complicated and included for instance appraisal of whether the suspects acted jointly and in concert, which means that the information given by the suspects early in the investiga- tion before they have any awareness of what the other suspects have said, is of great importance. When, as here, it can be foreseen that the statements made under questioning may be adduced as evidence in a court of law, it is particularly important even from a general point of view for them to be made in ways which are legally secure. As pointed out in the commentary on the CJP, the need of a defence counsel is not smaller during the first interro- gation with a suspect but rather the opposite (Fitger, [The Swedish Code of Judicial Procedure], /zeteo, Chapter 23, Sec- tion 5). In my opinion, given these circumstances, there can be no doubt that the attendance of a defence counsel was required at all of the sessions when J was questioned. The circumstances of the first interrogation have been assessed above. When it comes to the second and third interrogations, neither the nor the prosecutor in charge of the investigation have commented in the course of the Parliamentary Ombudsmans enquiry on why they took place without a defence counsel. On the other hand, the officer who carried out the questioning, , has submitted a memorandum accounting for the measures adopted and his considerations. In it he states that J and, prior to the third interrogation, also his mother agreed that ques- tioning could take place without a defence counsel. Before the second inter- rogation the , according to , tried to contact the defence counsel without success. His description also reveals that nevertheless it was decided to carry out the interrogation. therefore went to the cells to fetch J. On their way to the interrogation room he explained to J that it had not been possible to contact his defence counsel and then J is said to have agreed to be questioned all the same. Before both interrogations contacted the prosecutor in charge of the investigation, who, according to him, said that they could take place without a defence counsel, in the second instance subject to Js agreement. The reason for continuing the interrogations without a defence lawyers seems therefore to have been that it was considered appropriate and that J and, at the third interrogation, his mother had agreed to this. One requirement for it to be acceptable to carry out an interrogation without a defence counsel in a case of this kind is that the suspect and his or her parent or guardian has waived the right unambiguously and in a legally secure and well documented (see also the Prosecutor Generals guidelines 2006: 3, p. 23, which stress how important it is for the prosecutor to ascertain that the suspect has 2 012 /1 3:JO1 B I L A G A 10 understood the significance of the provision of Section 12 of the OPI). The discussions with J and his mother described by do not meet these requirements. My enquiry also discloses that already when J was informed of the suspi- cion he declared that he wanted a lawyer to be present. Nothing, not even the note in the record of the third interrogation (J states that it is OK to hold the interrogation without the presence of a defence counsel) suggests that he had changed this basic standpoint. What has been revealed in these respects is not incompatible with Js assertion that he felt he was under pressure to do what the told him to. It would appear to be impossible to rule out that J and his mother felt that they had no other choice than to go along with the interro- gation that the wanted to conduct. It is difficult to draw any other conclusion than that the investigating offi- cers who do not seem to have considered that the presence of a defence counsel would have served any useful purpose underestimated the impor- tance of a defence counsel for the legal proceedings in their entirety. There are therefore grounds for maintaining that it was not in the best interests of the investigation to conduct this interrogation without a defence counsel, as, generally speaking, the outcome is that anything disclosed is given less weight as evidence, which was in this case confirmed in the court hearings. The interrogations should not, therefore, have been conducted in the way they were. According to , the prosecutor in charge of the investi- gation agreed to their taking place without a defence counsel. However that may be, as she was in charge of the investigation was responsi- ble for ensuring that Js rights were respected and that the investigation was conducted in a legally secure (cf. the second paragraph of Section 1a of the OPI). When her intentions regarding the first interrogation had had no impact, she should have made sure that J in accordance with the legal as- sessment she herself had made was assisted during the following interroga- tions in the way he wanted and was entitled to. It is therefore who merits criticism for the grave errors made when J, while deprived of his , was questioned repeatedly without the assistance of a defence coun- sel. The right to a defence counsel according to Convention The principles laid down in the Swedish procedural regulations about the rights of a suspect to a defence counsel were not therefore complied with. As can be seen from the account of the legal provisions the right to a defence counsel when being questioned by the is a fundamental element in the right to a fair trial according to Convention. Appraisal of Js complaint about the criminal investigation also comprises, therefore, assess- ment of whether his rights according to the Convention were infringed by the errors that were committed. In certain earlier judgments the ECHR has ascribed a somewhat restrictive content to the right to a defence counsel. Here the stipulations of the Conven- tion seem to have been limited to the suspect not being refused the right to a B I L A G A 10 20 12 /13 :J O1 lawyer (see Imbrioscia [cited above] and Brennan v. [judg- ment issued 16 October 2001, application no. 39846/98]). In more recent judgments the construction given to the requirement is that the accused must have access to a lawyer. In Salduz [see above] the main rule is construed as meaning that access to a lawyer should be provided as from the first interro- gation of a suspect by the . The far-reaching demands laid down by the court for accepting that a suspect has waived this right also mean in practice that the authorities investigating crimes must ensure that a suspect has access to a lawyer, unless they can show that he or she pursuant to the prescribed requirements has relinquished this right. One of the basic principles of the Convention is, moreover, that the rights guaranteed must be practical and effective. For those deprived of their who are to be subject to judicial questioning the right to a defence counsel can have no practical significance, if the authority investigating the crime does not act to ensure that this right may be exercised. According to Convention, therefore, the rights of someone suspected of a criminal offence mean that the authority investigating a crime is required to ensure that the suspect has access to a defence counsel. This is also how the Convention has been interpreted in the proposal on the right to a lawyer in criminal proceedings which is currently being dealt with in the EU (see Proposal for a Directive of Parliament and of right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest, 8 2011 COM(2011) 326 final, Article 3). This requirement does not mean that a defence council must be present during questioning: what is decisive is whether the authority investigating a crime has ensured before the interrogation that the suspect has been provided with legal assistance, provided that he or she has not waived this right in the described above. As has been shown by the praxis of the ECHR, in addition waivers by juveniles can only be accepted if the authorities have previously taken all reasonable measures to ensure that these juveniles are fully aware of their rights and can as far as possible assess the consequences of what they are doing (Panovits, § 68, cited above). In practice this can probably be taken to mean that a juvenile suspect must have had access to some form of legal assistance before he or she can be interrogated without a defence counsel. It has been established that during the time he was in detention, in which three interrogations took place, J was never provided with access to a lawyer. The information submitted by the authority investigating the crime does not show that J waived his right to a defence counsel as required by Convention. His rights in this respect were not therefore respected. In the interpretation of the Convention espoused by the ECHR, the defence counsel has the important task of ensuring respect for the rights of suspects to remain silent and not to incriminate themselves. In this case J was neither provided with access to a defence counsel nor, as far as has been revealed, 2 012 /1 3:JO1 B I L A G A 10 informed of his right to remain silent. The fact that as a detained juvenile he was in a particularly vulnerable position when he was subjected to interroga- tion is, from the point of view of the Convention, aggravating. There are other circumstances as well that indicate that the infringement of the Convention that occurred was so fundamental that it also encroached on Js right to a fair trial. The praxis of the ECHR also makes it clear that appraisal of encroachment on the right to a fair trial is to be based on the legal proceedings in their en- tirety, which means that shortcomings at one stage can be remedied in an- other. In other words, the entire legal process has to be taken into account. The preliminary investigation resulted in six youths being charged for in- volvement in the production and circulation of one or more of the films con- cerned. The evidence consisted of statements made by the youths when ques- tioned. According to the judgment issued by District Court on (case no. B 2580-09), only one of these interrogations took place in the presence of a defence counsel. The court considered, as is made clear in the grounds given for its judgment, that this did not meet the desired require- ments, but nevertheless found reasons for relying on the statements made during the interrogations. J was convicted, despite his plea of not guilty, of one charge.