frsrdg · H004JO1 · 2012-11-07 00:00:00 — With regard to the appointment of a public defence counsel the au- thority submitted the following: On the prosecutor submitted a faxed request to District Court for the appointment of a public defence counsel for J. This request stated that J had been detained at 2.05 p.m. on and that he was to be questioned without delay. In addition, the prosecutor stated in the request that the public defence counsel should contact the investigating officer [] as soon as possible and gave a telephone number to use. District Court approved the request and appointed the lawyer from to act as Js public defence counsel. According to in- formation provided by District Court, the letter of appointment and the prosecutors request were posted to on the same day, i.e. The authority assumes that the district court had been in contact with before he was appointed to act as Js public defence counsel. A memorandum written by the officer conducting the questioning during the first interrogation, , included the following: 2 012 /1 3:JO1 B I L A G A 10 When J came into the room on , I informed him of the sus- picion of gross defamation through circulating pictures of girls accompanied by derogatory captions. I told him that he was entitled to a defence counsel during the questioning. I asked if we could get in touch with his mother as I felt she should be present while J was questioned. J did not think his mother needed to be there while he was being questioned. did he feel that he needed any defence counsel. He asked what the whole thing was about. I explained that it concerned Top Hoes films about the girls that had been made on the Internet and then circulated. He knew which films I was talking about but denied having anything to do with them. I then told him that a lot of the girls had identified him as one of those who had made the films. J now wanted his mother to come. He also wanted a defence counsel to be present, upon which I telephoned the Chief Inspector who helped me to ring to ar- range for one. We then sat waiting for Js mother and the defence counsel and during that time I made some entries concerning other cases on my com- puter. After a while J began to talk about the matter. He said what I wrote down in the interrogation. Before I wrote anything down I asked him, how- ever, Is it OK for me to write down what you are saying as an interroga- tion? This was not a problem. Yes I could, was his answer. He was calm but looked anxious and despondent. He said that he knew who had made the films but that he had not himself been involved. The only thing I asked J about when he had finished his account was which computer had been used when they made the films and which young men he mixed with most. All the rest that was recorded is what he said of his own accord with no interrup- tion and without any questions from me at all. The factual content of the record of the first interrogation is of limited extent and reads: [J] says that he knows who made the four films and that he was not himself involved. For instance it was [an identified individual] who made number four. He was one and there were four other lads. The films were made on a computer stolen from Tånga school. The lads said that it had been stolen. This is what they said when J told them they would get caught for making the films, as the can trace the IP-number of the computer used. The people J sees most of are [three identified individuals]. In a memorandum the officer who conducted the second and third interroga- tion, , says that he made a number of attempts to contact the defence council who had been appointed for J. On the morning of the day following Js detention, contacted the prosecutor who was in charge of the preliminary investigation. The memorandum continues: I gave the prosecutor the information I had been given about the defence counsel and the prosecutor said that we should question J. As I have stated above, the information I had received earlier still applied, regarding the fail- ure to make contact with the defence counsel and his failure to contact me. I told J about this on the way up from the cells and also in my office before the questioning took place. J said that the questioning could take place without the presence of a defence counsel. He was not subjected to any pressure from me []. Before the third interrogation, which according to took place on Js initiative, he again contacted the prosecutor responsible for the investiga- tion. According to , she decided that J should be questioned again and B I L A G A 10 20 12 /13 :J O1 J agreed to be interviewed without the presence of a defence counsel. This was also accepted by Js mother, according to . In view of what had been disclosed, the Public Prosecution Office were asked to submit a statement on the directives issued by the prosecutor respon- sible for the investigation to the when she was informed that J was coming to the station and what consideration the prosecutor had taken of Js need of a defence counsel and the measures she had therefore adopted. The response of the Public Prosecution Office was submitted by the Deputy Prosecutor-General, , and it was accompanied by information from the prosecutor responsible for the investigation, District Prosecutor , as well as from the on-call prosecutor , a district prosecutor, and the head of the local prosecution office in , Chief District Prosecutor . When it came to the preparations for the interrogation with J, in substance the Public Prosecution Office endorsed assessment and the measure she adopted (see below). With regard to the need for a defence coun- sel for J, the response of the Public Prosecution Office included the follow- ing: In the case in question the risk of collusion meant that it was not possible to ensure that a public defence counsel was appointed before the suspect J was questioned as investigation of the matter could have been jeopardised if the suspect and the suspects guardian were given an opportunity to express a view on the question of defence and any possible as to who was to be appointed as a public defence counsel. It was, in other words, necessary to delay raising the question of defence with the suspect and the suspects guardian until the interrogation began. The crime (gross defamation) of which J was suspected was admittedly not a mi- nor one but nor was the offence of as grave a nature as rape or robbery, for instance (cf. the Parliamentary Ombudsmens Annual Report for 2008/09, p. 92 and the Parliamentary Ombudsmens adjudication in case number 5493- 2008). In my opinion, taken by and large, the circumstances meant that the prosecutor was justified in considering that it was possible to hold a brief introductory interrogation with the suspect without the presence of a defence counsel and therefore that were no grounds for the appointment ex officio of a public defence counsel in that situation. This provided, of course, that the guardian or the suspect during the questioning did not request the appoint- ment of a public defence counsel who was to be present during the interroga- tion. I cannot see that any circumstances have been disclosed that should have prompted the prosecutor to remind an experienced Detective Chief Inspector that contact should be taken with the prosecutor if the guardian of a young suspect or the juvenile himself requests the presence of a defence counsel while being questioned. When during the interrogation resulting from the directive the suspect re- quested the presence of a defence counsel, the interrogation should, therefore, have been interrupted by the officer in charge and the prosecutor contacted. According to the records, no real interrogation of J took place. When ques- tioned, the suspect J merely denied his own involvement and gave some brief information about what others had done. After the interrogation the prosecu- tor more or less immediately submitted a request to the court for the appoint- ment of a public defence counsel. One of the documents provided by contained supplementary information. It read as follows. 2 012 /1 3:JO1 B I L A G A 10 On the basis of information disclosed by another perpetrator when ques- tioned, it became clear that there were good grounds for suspecting J of gross defamation through his participation in films 3 and 4. My assessment was there was a great risk of collusion as several other individuals could also be suspected of participating in one or more of the films. My recollection today is that through contact with the investigating officer I was informed that J was going to come to the station voluntarily at lunch time. I do not know whether or not any summons had been sent to J before this. Instead of order- ing that J should be brought to the station for questioning that he should be notified that he was suspected of gross defamation and ques- tioned briefly. This instruction was an oral one. As Chief Inspector was in charge of the investigation and has long and thorough ex- perience that includes dealing with juvenile offences I saw no reason to place any particular emphasis on the provisions of Section 57 of the Act with Special Provisions on . My assessment when it came to Js need of a public defence counsel was that it was not evident that he had no need of a defence counsel. I considered, however, that there was a great risk of collusion as there were other individuals who could be suspected of in- volvement in one or more of the four films. In my opinion, it was important to enable them to be questioned before they had any chance of influencing the investigation by talking to each other. In this situation I considered that it would be prejudicial for the investigation to submit an application for a public defence counsel before J had come to the station and notified that he was suspected of a criminal offence. There would then have been a major risk that he would not only have failed to attend but also could have contacted others who were involved. I therefore came to the conclusion that the applica- tion for a public defence counsel should not be submitted until J had been informed that he was a suspect and had been questioned briefly. As far as I can recollect, I first had contact with when I was informed that J was coming to the station and that I then had several contacts with in which I informed him about my assessment. At lunch time I then handed the case over to the duty prosecutor for the day. notes among other things that the introductory question- ing when notification of the suspicion took place lasted for more than an hour and that this had obviously not been the prosecutors intention but she had merely wanted J to be informed that he was a suspect and then asked some initial questions in the presence of a defence counsel. also stated that in view of what had transpired in this and other cases, the authority in the County of and the Public Prosecution Office in had jointly agreed to review the routines for dealing with juvenile offenders so that the rights of suspects to defence counsel and the implemen- tation and documentation of prosecutors directives could be dealt with ap- propriately by both the and prosecutors. J was offered an opportunity to submit a rejoinder to the statements sub- mitted by the authorities. Legal provisions, etc. Obligation to submit to questioning by the etc. It is a civic duty to submit to being questioned by the (see Section 6 of Chapter 23 of the Swedish Code of Judicial Procedure CJP). B I L A G A 10 20 12 /13 :J O1 requirement to contribute to an investigation. An individual is, in other words, required to attend in order to be asked questions but not to answer them. There is no provision that explicitly states that individuals suspected of crimes are entitled to remain silent and do not have to provide information that could incriminate them. But that such a right exists is, however, one en- tailment of Convention, about which more below. Apart from the provision in the first paragraph of Section 5 of the OPI, which lays down that summons to attend for questioning shall normally be issued in good time, there are no special regulations on how summonses should be issued. They can therefore be either oral or written. Section 7 of Chapter 23 of the CJP states that those who fail to obey a summons without a valid excuse may be taken into custody for questioning. The same provision stipulates that those deemed able to impede an investigation by removing evidence etc. may, on certain conditions, be taken into custody for question- ing without prior summons. In addition, there is a possibility of making indi- viduals accompany a officer to assist in an investigation, CJP 23:8. Those questioned are not required to stay for longer than six hours, pro- vided that they cannot be suspected of a criminal offence, when the period may be extended to twelve hours, provided that this is of extraordinary neces- sity, CJP 23:9. Section 17 of the OPI lays down that particular pains shall be devoted to planning an interrogation, if the individual to be questioned is under eighteen years of age and suspected of a criminal offence, so that no risk of harming the juvenile may arise. Special care should be taken to ensure that the interro- gation does not attract attention, nor may it probe more deeply than the cir- cumstances require. Section 12 of Chapter 23 of the CJP stipulates that is not admissible to use unwarranted measures in order to extract a confession or a specific statement. The examples of unwarranted measures include the use of knowingly false information, promises or hints of special treatment, threats, coercion or ques- tioning to the point of fatigue. Notifying guardians, custodians, etc. When someone under the age of eighteen is suspected of a crime their parent or guardian or anyone responsible for their care and upbringing as well as any individual who plays a formative role in relation to the juvenile must be in- formed immediately. They must also be summoned to attend any interroga- tion of the young person. However neither the information nor the summons is required if it can be prejudicial for the investigation or there are any other grounds to the contrary. (See Section 5 of the .) The intention is that those who have relationships of this kind to the suspects will be informed when an investigation is taking place and therefore better able to discharge their responsibilities as caregivers. Thunved, Clevesköld & Thunved, Samhället och de unga lagöverträdarna [Society and young offenders], 4th ed., p. This provision does not mean that the caregiver needs or is enti- tled to be present in the interrogation room when the young person is ques- 2 012 /1 3:JO1 B I L A G A 10 cit.). Compliance is also required with the second paragraph of Section 3 of Chapter 1 of the CJP, which stipulates that defence counsel for those under the age of eighteen are appointed by the individuals who have custody of them, see below. A record should be kept of notifications and summonses. This adheres to the general principles that apply to the requirement of public authorities to keep records and is also, in the case of Section 5 of the , stipulated in Section 21 b of the OPI (see also Section 20 in the same statute that lays down when and where measures adopted during the investigation are to be recorded). Informing boards of social welfare etc. When someone who has not yet reached the age of eighteen is reasonably suspected of a criminal offence for which a prison sentence can be awarded, the board of social welfare has to be informed without delay, 6. When the young person is being questioned a representative of the social services must be present if possible and if not prejudicial to the investigation, 6. In principle the intention here is the same as in the case of parents or guardi- ans, i.e. that the board of social welfare should be informed when an investi- gation is taking place and will therefore be better able to discharge its respon- sibilities (for further details see the work by Thunved, Clevesköld & Thunved cited above, p. Section 6 of the stipulates that a record must be kept of the measures adopted by the authority (see also Section 20 of the OPI). The right to defence counsel Section 3 of Chapter 21 of the CJP stipulates that a suspect is entitled to the assistance of a defence counsel that he or she appoints. If the suspect is under the age of eighteen, the defence counsel is appointed by the person who has custody of him or her. This means that the parent or guardian has to be in- volved in matters concerning the right of a juvenile to a defence counsel (cf. the Prosecutor Generals guidelines 2006:3, p. In certain circumstances a public defence counsel must be appointed, see Section 3a of Chapter 21 of the CJP. In such circumstances the individual responsible for the investigation has to inform the court to which the case pertains of this fact and the court then has to deal with the appointment, CJP 23:5 & 21:4, second paragraph. If the suspect is under eighteen, a defence counsel has to be appointed unless it is evident that he or she has no need of one, 24. It is the court that decides who is to be appointed: if the suspect has proposed someone who is eligible for appointment this person shall be appointed unless there are special grounds for not doing so, CJP 21:5 second paragraph. Section 12 of the OPI states that anyone notified that he or she is reasona- bly suspected of a crime is to be informed of their right to the assistance of a defence counsel during the preliminary investigation and that in certain cir- cumstances a public defence counsel can be appointed. B I L A G A 10 20 12 /13 :J O1 If the suspect requests the provision of a public defence counsel, this re- quest must be submitted to a court for appraisal according to the provisions referred to above, irrespective of what assessment the person in charge of the investigation makes of whether this is necessary. The request has to be sub- mitted immediately (see the Prosecutor Generals guidelines 2006:3, p. 23 and the references there). In a number of cases in recent years the Parliamentary Ombudsmen have expressed criticism of interrogations concerning juveniles without a defence counsel being present. The Parliamentary Ombudsmans adjudication of (reg. 3741-2008) concerned a seventeen-year-old youth who had been arrested for assault. During the preliminary questioning the suspect stated that he wanted a certain lawyer but agreed to continue the interrogation without this lawyer being present. The Parliamentary Ombudsman made the following general observation: Even if a suspect says that questioning can take place without a defence coun- sel, the person in charge of the investigation must make an assessment on objective grounds that this is the case. This assessment cannot therefore be left to the suspect []. The Parliamentary Ombudsman expressed severe criticism of the fact that no defence counsel was present during the preliminary questioning and grave criticism of the fact that this was also the case during the following interroga- tions. The Parliamentary Ombudsmans adjudication of (reg. 5493-2008) concerned a sixteen-year-old youth suspected of the aggra- vated rape of children. When he had been notified of the crime of which he was suspected, the youth said that questioning could take place without a defence counsel but that he wanted one if the case came to trial. The Parlia- mentary Ombudsman pointed out that this assessment cannot be left to the suspect or parent or guardian and included the following observation: It is the responsibility of the individual in charge of the preliminary investiga- tion to consider and to issue directives about what is required with regard to the need of a public defence counsel. It is of course important for anyone in charge of an investigation to take pains to be explicit when directives are given before an impending interrogation. Records should be kept of such directives. In view of the fact that the investigation was dealing with a very serious crime it was, in my opinion, wrong to question A.K. thoroughly without a public defence counsel being present. Instead when this interrogation took place, A.K. should, in the way that the [leader of the investigation] states was intended, merely have been notified that he was suspected of a crime and asked whether or not he admitted it and also about a defence counsel. detailed questioning would then have had to wait until the following day, when a public defence counsel could attend. Convention on Human Rights and Fundamental Freedoms (Convention) has the force of law in . According to Article 6 everyone accused of a criminal offence is entitled to a fair trial. As a result of 2 012 /1 3:JO1 B I L A G A 10 the praxis that has developed in Court of Human Rights (ECHR), this concept comprises a number of entitlements and principles Since 2011 a provision on fair trial is also included in the stipulations in the Instrument of Government on fundamental freedoms and rights (Article 2:11 second paragraph). One the principles that the concept of fair trial comprises is that the suspect need not contribute to an investigation by making admissions or providing incriminating material (, Mänskliga rättigheter i europeisk praxis [Human rights in European praxis] , 3rd ed., p. The right to a defence counsel is laid down specifically in Article 6 (6.3 c), which says that everyone has the right to defend himself through legal assistance of his own choosing or, if he does not have sufficient means to pay for legal assistance, to be given it free when the interests of so require. The right to a fair trial applies through the entire procedure, from the pre- liminary investigation to the court hearing and the verdict. Appraisals of whether there has been infringement of the right to a fair trial should, accord- ing to the praxis of the ECHR, be based on the judicial process in its entirety, which means that a shortcoming at one stage can be compensated in another. The right to a defence counsel is therefore one among many elements in the concept of a fair trial. This assertion is borne out by Imbrioscia v. (judgment issued on , application number 13972/88, §§ 3638). There are a number of cases from the ECHR in which the complaints have involved interrogations undertaken without access to a defence counsel. Their outcomes show that if a subsequent conviction is based on statements made in such circumstances, this may, depending on the circumstances in other re- spects, constitute an encroachment of the right to a fair trial. One case of particular interest is Salduz v. (judgment issued , application number 36391/02). At the time Salduz was a seventeen-year-old youth arrested by the Turkish on suspicion of having participated in an unlawful demonstration in support of an organisation that was forbidden in and of having hung an illegal banner from a . He was initially apprised of his right to re- main silent and at the same time it was made clear that he would later have the possibility of being assisted by a lawyer. In the interrogations that followed, Salduz, who lacked the assistance of a defence counsel , made a number of admissions which he withdrew when he came before the examin- ing judge. He was later sentenced by a court to a prison sentence of two and half years. A substantial proportion of the evidence consisted of the state- ments he had withdrawn. In its first ruling the ECHR found that was not in breach of Article 6.3 c. At the request of Salduz the case was taken up again in a larger court, the Grand Chamber. In its new judgment the court described the general principles that should be applied.