frsrdg · H004JO1 · 2012-11-07 00:00:00 — According to Article 6 the concept of fair trial covers the entire legal proc- ess: it is not restricted to the court hearing. According to the praxis that has been established by the ECHR the protection offered by the Convention in- cludes a number of rights and principles. The overall right to a fair trial pursuant to Article 6 must, according to the praxis of the ECHR, be assessed on the basis of the legal process in its en- tirety, which means that a shortcoming in one section can in certain condi- tions be remedied in another. Violation of the right of suspects to respect for their private lives as laid down in Article 8 during the legal process does not per se mean that the process is to be considered unfair according to Article 6. This is made clear by v. the (judgment issued 12 2000, application no. 35394/97) as well as in (see below) and Bykov. One of the principles included in the concept of fair trial is that a suspect may not be required to contribute to an investigation by making admissions or 2 012 /1 3:JO1 B I L A G A 10 providing incriminating material (, op. cit. The ECHR sets great store on this right, which, according to the Court, lies at the heart of the right to a fair trial (v. the , judgment issued 8 February 1996, application no. 18731/91, § 45). This right has been linked to the right to legal counsel: in the Courts opinion one of the tasks of a de- fending lawyer is to ensure that the rights of suspects not to incriminate them- selves are respected (Salduz v. , judgment issued , application no. 36391/02, § 54). If the suspect makes incriminating statements while being questioned by the without access to a lawyer and this is used to procure a conviction, the Court considers that the rights of the suspect have in principle been irrevocably undermined (Salduz, § 55). In v. the (judgment issued , appli- cation no. 48539/99) an individual named had been deprived of his on suspicion of involvement in the robbery of a shop in which the owner had been shot and killed. made use of his right to remain silent. An informer, who had been arrested for other crimes, was placed by the po- lice in the same cell as and given the task of inducing him to talk about the crime he was suspected of. The informer later testified that had admitted that he was at the scene of the crime. There was no evidence other than this statement to bind to the fatality. He was charged and sen- tenced to life imprisonment for murder. The ECHR included the following statement of principle in its judgment. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent and presupposes that the prosecu- tion in a criminal case seeks to prove the case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. (§ 44) [ ] While the right to silence and the privilege against self-incrimination are primarily designed to protect against improper compulsion by the authorities and the obtaining of evidence through methods of coercion or oppression in defiance of the will of the accused, the scope of the right is not confined to cases where duress has been brought to bear on the accused or where the will of the accused has been directly overborne in some way. The right, which the Court has previously observed is at the heart of the notion of a fair procedure, serves in principle to protect the freedom of a suspected 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 subter- fuge to elicit, from the suspect, confessions or other statements of an incrimi- natory nature, which they were unable to obtain during such questioning and where the confessions or statements thereby obtained are adduced in evidence at trial. (§ 50) In case the ECHR found that the informer had directed his conversa- tion with about the fatal shooting in a way that could be considered to be the functional equivalent of interrogation, without the guaranteed protec- tion that would have resulted from an official interrogation, including the presence of a lawyer and information about his right to remain silent (, § 52). The Court considered that right to a fair trial pursuant to Article 6 had been violated by the way that the information procured by the informer had been obtained against will and presented at the hearing, B I L A G A 10 20 12 /13 :J O1 where it was the main evidence, and that therefore right to remain silent and not to incriminate himself had been transgressed. In a later case, Bykov v. (cited above), the background was the fol- lowing. A man, V, reported to the that he had been asked by a busi- nessman, Bykov, to murder one of his former partners. V showed them the weapon Bykov was alleged to have given him. The rigged a scenario in which the media were misled into reporting that two bodies had been found in the partners home. V was then instructed to visit Bykov, wired with a microphone and under surveillance, report and return the weapon. This led to Bykovs arrest. The recording from this visit together with the informa- tion provided by V were used to charge Bykov with instigating murder. When the trial was held, V had submitted a written retraction of the information he had given and disappeared. Bykov was sentenced to six years imprisonment, but released conditionally immediately after the trial, which took place just over eighteen months after his arrest. Bykov complained to the ECHR that among other things his right to a fair trial had been violated. In its appraisal of Bykovs right to a fair trial the majority of the ECHR noted that the evidence recorded during Vs visit was not decisive but that the key evidence consisted of the information initially provided by V and the weapon he had displayed (§ 98). The Court also considered whether what had occurred meant that Bykovs right to remain silent and not to incriminate himself had been violated. In what would appear to be the decisive sections of the grounds for its decision the Court observed: The Court notes that in the present case the applicant had not been under any pressure to receive V. at his guest house, to speak to him, or to make any specific comments on the matter raised by V. Unlike the applicant in the case , the applicant was not detained on remand but was at on his own premises attended by security and other personnel. The nature of his relations with V. subordination of the latter to the applicant did not impose any particular form of behaviour on him. In other words, the applicant was free to see V. and to talk to him, or to refuse to do so. It appears that he was willing to continue the conversation started by V. because its subject matter was of personal interest to him. Thus, the Court is not convinced that the obtaining of evidence was tainted with the element of coercion or oppres- sion which in the case the Court found to amount to a breach of the applicant's right to remain silent. (§ 102) Here the Court was not unanimous. A minority considered that Bykovs right to a fair trial had been violated. One of the judges, who was supported by four others, adopted a somewhat different perspective on the operation that had been undertaken and considered whether its subject had de facto been under the control of the authorities. This was so in the present case; the applicant was an unwitting protagonist in a set-up entirely orchestrated by the authorities. I would draw attention here to the very particular circumstances of the operation, which began with the staged discovery of two bodies and the announcement in the media that S. and I. had been shot dead. By the time V. arrived at the applicants guest house, the applicant was already under the influence of the erroneous infor- mation that a serious crime had been committed, and his belief was reinforced by V.s admission that he had been the perpetrator. The applicant's conduct 2 012 /1 3:JO1 B I L A G A 10 was therefore not solely, or mainly, guided by events which would have taken place under normal circumstances, but above all by the appearances created by the investigating authorities. To that extent, seeing that he was the victim of a ruse, his statements and reaction cannot reasonably be said to have been voluntary or spontaneous In the present case the purpose of the staged events was to make the applicant talk. The operation undermined the voluntary nature of the disclosures to such an extent that the right to remain silent and not to incriminate oneself was rendered devoid of all substance. As in the Ramanauskas case, the appli- cant was entrapped by a person controlled from a distance by the authorities, who staged a set-up using a private individual as an undercover agent. I thus consider that the information thereby obtained was disclosed through entrap- ment, against the applicant's will. (Judge Spielmanns dissenting opinion, §§ 35 & 37.) Regulations governing interrogation: the rights of the suspect The regulations on interrogations during preliminary investigations can be found in Chapter 23 of the CJP. These stipulate the general requirement to submit to interrogation by the (Section 6). There is no requirement to contribute to the investigation. That someone suspected of a crime may de- cline to say anything is made clear in the CJP, but only indirectly, however, in that there is no requirement to do so, either during the investigation or in the court hearing. is there any other Swedish statute that contains a provision on the right to remain silent during interrogation. The principle that a suspect does not have to contribute to an investigation by making admissions or pro- incriminating material is included, however, as has been shown above, in the right to a fair trial. Section 23 of Chapter 21 of the CJP stipulates that someone suspected of a crime is entitled to the assistance of a defence counsel that he or she selects. In certain circumstances a public defence counsel is to be appointed, CJP 21:3a. According to Section 18 of Chapter 23 of the CJP anyone reasonably suspected of an offence is to be notified of the suspicion when questioned. Section 12 of the OPI stipulated that anyone notified that they are reasonably suspected of a criminal offence shall at the same time be informed of their right to the assistance of a defence counsel during the investigation and the rules that apply for the appointment of a public defence counsel. It is the official in charge of the investigation who decides who may be present during an interrogation, CJP 23:10, but where defence counsel are concerned in practice there is a generally accepted opinion that they have an unrestricted right to be present when suspects are questioned. Certain general regulations on how questioning is to be carried out can be found in Section 12 of Chapter 23 of the CJP. According to this provision the use of unwarranted measures in order to extract a confession or a certain statement is not permissible. The examples given of unwarranted measures include the use of knowingly false information, promises or hints of special treatment, threats, coercion and driving the suspect to the point of exhaustion. B I L A G A 10 20 12 /13 :J O1 may the individual being questioned be deprived of customary meals or the necessary rest. Records during a preliminary investigation Section 21 of Chapter 23 of the CJP lays down that records must be kept of matters of importance to the investigation. detailed regulations on the contents of these records can be found in Sections 2023 of the OPI. Section 20 stipulates a number of details that must be noted in the records, among them when and where different measures took place during the investigation. The first paragraph of Section 22 lays down that records are to be kept so that they provide a faithful picture of what has occurred during the preliminary investigation that is significant in the case. In assessing what information is significant, the principle of objectivity laid down in Section 3 of Chapter 23 of the CJP must be taken into account. Previous adjudications by the Parliamentary Ombudsmen have made it clear that the official in charge of an investigation must therefore vigilantly ensure that information that may be significant for the defence is not removed from the records (see for instance Parliamentary Ombudsmens Annual Report 1964, p. 212 and 2007/08 p. Documentation that is not included in the records of a preliminary investi- gation must be made available (see SOU 2011:45 p. 255 for this kind of ancil- lary material). While investigating crimes it is not uncommon for detectives to work in civil- ian clothes without revealing that they are officers, and this is generally accepted. There are no specific regulations about this but the legal support may be found in the general regulations on the duties of officers in, for instance, the Act. Here Section 8 lays down in this respect that a officer shall in the course of his duties comply with current legislation and with the principles of necessity and proportionality. Interventions that restrict any of the freedoms and rights enshrined in Chapter 2 of the IoG may not however be undertaken on these grounds alone: they require specific legal authorisation. This must also be considered to include the freedoms and rights that derive from Convention. Certain forms of operations have attracted specific legal in- terest. Attempts by the to influence individuals actively are sometimes referred to as entrapment operations, see the Prosecutor-Generals guidelines on the conduct of entrapment measures, RåR 2007:1, which deal with opera- tions that could result in someone committing an offence, sting operations. Otherwise there are no specific regulations on methods of this kind. This means that they are permissible within the general parameters referred to above but not if they encroach on the protected freedoms and rights of indi- viduals. Infiltration can be viewed as a special form of operation. The concept has not been defined in Swedish law: in principle there are no 2 012 /1 3:JO1 B I L A G A 10 regulations governing this method. In its final report the Enquiry into Methods uses the concept of infiltration operation to describe a inves- tigation in which interaction with the targeted individuals is undertaken with the help of misrepresentation and where this misrepresentation has a certain continuity for some period (SOU 2010:103 p. In the opinion of the enquiry, infiltration can be used to acquire information that could help to elucidate otherwise unsolved cold cases. The enquiry could see no objec- tion to this (op. cit. 120 f.). Legislation on assumed protective identities was enacted in 2006 (see Govt. 2005/06:149). This meant that under certain circumstances officers could be given constructed (fictitious) identities. The reason behind this statute is that the cannot always act openly (cf. 16 of the ). It contains no regulations, however, on the operational methods in which pro- tective identities could be used. In 2010 inspected the units that have been set up to take responsibility for the use of assumed protective identities (Inspection of Undercover Operations, report ). The summary of the report describes the regulations as follows: No guidelines have been laid down for these operations. The existence of a manual that the heads of all the units at the major city forces and the NCID have agreed on and which is being revised does not fulfil the require- ment for guidelines to be laid down for Swedish officers. It is very important that there are carefully considered and documented guidelines for operations that are not regulated by law and where there is otherwise guidance from doctrinal and practical experience. Judgment issued by the Supreme Court on 20 October 2011 The Swedish Supreme Court has recently issued an opinion in a case that has some points of contact with the issue under appraisal here (Supreme Court judgment issued on 20 October 2011, B 2150-11; the question of the signifi- cance of the fact that in the course of an entrapment that was judged to in- volve threatening features the accused supplied information that was negative for his case). The circumstances were the following. After the disappearance of a woman, C was suspected of having killed her. He was taken into custody and questioned on a number of occasions but five years after the disappearance the case was still unsolved. A special investiga- tion operation was then undertaken. An operator called made friends with C. The operator pretended to be a criminal and told C that there was some interest in the womans life insurance. Before it could be paid out her body had to be found. The operator tempted C with money if he would reveal what he knew. The operator also threatened the involvement of Russians and Chechens etc. This produced no results. In an attempt to increase the pres- sure on C, another operator, pretending to be a Russian with yet another operator approached C outside his home. They told C to get in touch with . At the ensuing meeting C pointed out where the womans body was hidden and said he was responsible for her death. The case records show that C was under the influence of drugs when he did so. B I L A G A 10 20 12 /13 :J O1 The Supreme Court pointed out that when prosecution has been preceded by entrapment to acquire evidence it is not per se the primary task of a court to determine how the measure complies with the regulations in force. On the other hand the entrapment can influence appraisal of the charge indirectly. Ultimately it is a question of respecting the right to a fair trial according to Convention which includes appraisal of how the evidence was obtained. (Supreme Court judgment, p. According to the Supreme Court, the pressure C was subjected to had to be considered unwarranted. That he supplied the information in circumstances that did not meet the customary requirements of legal security was taken into account in the courts appraisal in that it was given very weight as evidence. The Supreme Court pointed out, however, that the prosecution was based to a large extent on other evidence, for instance the forensic examination carried out when C had indicated where the body was. The fact that this evidence had been established as a consequence of the entrapment of C did not, according to the Court, have any impact on its value as evidence. C had been able to study the evidence and counter it with his own. The courts had been given ample opportunity to assess the value of the investigation in its entirety. (Supreme Court judgment, pp. C was convicted of murder. The penalty awarded corresponded to ten years imprisonment. In assessing the penalty the unwarranted features of the entrapment were taken into account. The threatening situation that had arisen because of the entrapment could not however be classified as a very serious one. The Supreme Court continued: At the same time it must be considered that the right to remain silent and not to provide information to incriminate oneself has been viewed as offering central protection in trial proceedings. For this reason there are special grounds for sentencing C to a more lenient penalty than that prescribed for the crime by virtue of item 8 in the first paragraph and the second paragraph of Section 5 of Chapter 29 of the Criminal Code. This reduction should be con- sidered to correspond to two years imprisonment. (Supreme Court judgment, p. In the lower court Cs penalty had been reduced by three years and as no appeal against the judgment had been made by the prosecutor, the sentence awarded was seven years imprisonment. The decision of the Parliamentary Ombudsman not to initiate a preliminary enquiry into official misconduct in this case was based among other things on the absence of definite statutory provisions on what actions are lawful in connection with the implementation of infiltration operations and entrap- ments. The question of whether the officials involved can be criticised on legal grounds for measures adopted in respect of R may be considered to have been settled by this decision. The aim of the subsequent enquiry was to study and as far as possible clarify the legal situation to make it easier to apply the law on future occasions. 2 012 /1 3:JO1 B I L A G A 10 The starting point for the appraisal is the principle of legality laid down in the IoG that requires public authorities to have a legal basis for their opera- tions. When these involve measures that infringe upon the freedoms and rights of individuals, this support must be laid down in law and be worded in a legally secure . It is the task of the Parliamentary Ombudsmen to ensure that these freedoms and rights in particular are upheld (Section 3 of The Act with Instructions for the Parliamentary Ombudsmen). The question of whether the legal proceedings in their entirety were in breach of the overall right to a fair trial pursuant to Article 6 in Convention has, as described above, been appraised by the Court of Appeal and its judgment has gained the force of law. This should not be the subject of any further review in this context. The rest of this adjudication will focus instead on the measures adopted with regard to R that have not been the sub- ject of any corresponding opinion. The significance of the fact that infiltration is in principle an accepted investigatory method, etc. As infiltration is a method that has been used for a long time, to some extent at least, it could be maintained that other principles and rights have been set aside with the consent of the legislators when it is adopted. Against this it can be pointed out that there are no legal regulations that deal with infiltration. The concept is not defined in the statutes, preliminary work, practice or doctrine (cf. on this subject the Report of the Enquiry into Methods, SOU 2010:103, pp. 100 ff.). It is revealing that the kind of investigatory method adopted in this case, questionable as it is from many points of view, has not become the subject of one single regulation in the otherwise strictly controlled operations conducted by the (cf. the report of the inspection by cited above). If fundamental freedoms and rights are to be set aside to benefit the inves- tigation of a crime, what must be required is that the reasons for doing so have found legal expression in some concrete form. In my opinion there can be no grounds for using the passivity of the legislators to justify deviating from the legal principles that otherwise apply. The circumstance that there is an Act on Assumed Protective Identities has also been cited in support of the view that infiltration is generally permissible. Here the argument is that as the act is based on the needs of the to be able to use operational methods, methods of this kind must be legal. But no question has been raised about the necessity for the to be able operate covertly. What is at issue is how measures that can then be adopted are to be viewed when they encroach upon the freedoms and rights of indi- viduals. The Act on Assumed Protective Identities, which in no way regulates the operational methods in which these identities may be used, provides no answers to this and evidently its very existence cannot be cited as legal sup- port for all forms of action that could be envisaged with the use of protective identities. B I L A G A 10 20 12 /13 :J O1 The rights of suspects to respect for their private lives pursuant to Article 8 of Convention Article 8 of Convention stipulates that individuals have the right to respect for their private lives.