sou · H5B370 · 2017-09-28 00:00:00 — A disclosure of sensitive information handled in the context of international cooperation for peace and security in which is participating could therefore be of great importance to , Swedish interests and the international cooperation for peace and security in which is participating as well as for the possi- bilities of further cooperation. This might also impair Swedish possibilities of maintaining national security. Protection for sensitive information handled within the framework of international cooperation for peace and security As international cooperation becomes more tightly knit, an in- crease in the exchange of information between states is natural and fundamentally positive. This enables information to be re-used and experience to be spread, contributing to a more efficient admin- istration. Sensitive information is handled on many occasions within the framework of international cooperation for peace and security. It can be a matter of information concerning , other countries involved in the cooperation, the relations between the countries or a current operation. In international cooperation for peace and security, the cooperation itself can reveal something about the defence and security capability of the participating countries. There can also be information of a more general and political nature that relates to the relations between the counties or some future co- operation. However, there is, above all, likely to be information concerning ongoing or planned international operations, for example the criteria for the use of violence and force, signals protection, situation assessments and the safety and security of the operation. Such information is of key importance for the conduct of the operation and for the safety of the individuals taking part in the operation, as well as for the collaborating countries and organisations. The fact that Swedish agencies are increasingly handling infor- mation originating from foreign agencies or linked in some other way to international cooperation means that considera- tion must be given to how far can ensure that sensitive information of importance for the international cooperation that is participating in is given sufficient protection. In sensitive information handled in the context of such cooperation is primarily protected by provisions about secrecy, protective security, protection under criminal law and protection for trade secrets. Secrecy to protect information handled within the framework of international cooperation for peace and security Information handled in the context of international cooperation for peace and security in which is participating can, in some cases, be subject to secrecy under an act or law other statute or under an authorisation or restriction issued pursuant to an act or other statute. Secrecy means not only a restriction of the right to access official documents but also a prohibition on disclosing information, either orally or by releasing an official document or in some other way (Ch. 3, Sec. 1 of the Public Access to Information and Secrecy Act (2009:400)). Secrecy thus means both document secrecy and a duty of secrecy. To the extent that secrecy provisions entail a duty of secrecy, they result in a restriction of freedom of expression under the Freedom of the Press Act (FPA) and the Fundamental on Freedom of Expression (FLFE) or under Convention on Human Rights. The duty of secrecy applies under Ch. 2, Sec. 1 of the Public Access to Information and Secrecy Act (PAISA) to public authorities and to persons who, by participating on behalf of the public institutions in the activities of a public authority, have become aware of the information on account of employment or an assignment with the authority or on some other similar basis. Secrecy relating to foreign affairs under Ch. 15, Sec. 15, Sec. 1 of PAISA contains the provision of secrecy relating to foreign affairs. Under this provision, secrecy applies to information regarding 's relations with another state, or otherwise regarding another state, an international organisation, or an authority, a citizen of or a legal person in another state or a stateless person, if it can be assumed that disclosure of the information will disturb 's international relations or harm this country in some other way. Secrecy in international cooperation under Ch. 15, Sec. 1 a of PAISA 15, Sec. 1 a of PAISA secrecy applies to information that a public authority has received from a foreign body on the basis of a legally binding EU act or an agreement with another State or with an international organisation entered into by the EU or approved by the Riksdag, if it can be assumed that ’s ability to participate in the international cooperation referred to in the act or the agreement would be impaired if the information was dis- closed. Corresponding secrecy also applies to information obtained by a public authority for transmission to a foreign body in accordance with such an act or agreement. Secrecy under Ch. 15, Sec. 1 b of PAISA 15, Sec. 1 b of PAISA contains a provision on absolute secrecy to protect public interests for information in a foreign database that is accessible electronically to a Swedish authority through direct access but that the authority must not process on account of a legally binding EU act or an international agreement. The reason for this provision is that items of information in foreign databases to which a Swedish public authority has direct access are official documents at the authority if the information is contained in what is called a “finished electronic document” or can be complied by means of routine measures without the use of prohibited search arguments. Secrecy relating to defence under Ch. 15, Sec. 15, Sec. 2 of PAISA secrecy applies to information con- cerning activities to defend the country or the planning or other preparation of such activities or otherwise concerning total defence if it can be assumed that disclosure of the information would harm the defence of the country or otherwise endanger national security. Preliminary investigation secrecy under Ch. 18, Sec. 18, Sec. 1 of PAISA secrecy is applicable to protect the crime prevention and crime prosecution activities of the public institutions. Preliminary investigation secrecy applies to information included in a preliminary investigation in a criminal matter, a matter that relates to the use of coercive measures or in another activities intended to prevent, discover, investigate or prosecute crime and that are conducted by a prosecution authority, the Swedish Authority, the , the , the Swedish Customs or the Swedish Guard if it can be assumed that the purpose of the measures ordered or foreseen would be countered or the future activity would be harmed if the information is disclosed. Secrecy to protect intelligence activities etc. under Ch. 18, Sec. The provision in Ch. 18, Sec. 2 of PAISA provides that secrecy to protect the work of the public institutions to prevent, pursue or discover criminal activity applies to information that is referable to intelligence activities. In this context intelligence activities means activities that consist of gathering, processing and analysing infor- mation in order to establish whether a criminal activity has been or may be carried out and that is not part of a preliminary investigation. Information covered by secrecy under PAISA and that concerns national security is also protected by the Act (1996:627). Protective security means, first, protection against espionage, sabotage and other offences that can threaten national security; second, protection in other cases of information covered by secrecy under PAISA that concerns national security and; third, protection against terrorist offences even if the offences do not threaten national security. Act also contains provisions on the obligation to sign protective security agreements in certain cases and on training, control and supervision. Protective security shall be in place, to the extent necessary, in activities of central government, municipalities and county councils, in legal persons in which these bodies have a legally decisive influence and with respect to individuals if their activities are of importance for national security or in particular need of protection from terrorism. There are supplementary provisions on protective security for the Riksdag (the Swedish Parliament) and its agencies in the Act on protective security in the Riksdag and its agencies (2006:128). Protective security is intended to prevent information covered by secrecy that concerns national security being disclosed, altered or destroyed without authorisation (information security), to prevent unauthorised persons gaining entry to places where they can access such information or where activities of importance for national security are conducted (entry restriction) and to prevent persons who are not reliable from a security perspective from participating in activities of importance for national security (security examination). In addition, protective security is intended to prevent terrorism. In certain circumstances a person who discloses information of importance for international cooperation for peace and security in which is participating may be guilty of an offence. The provisions of Ch. 19 of the Swedish Penal Code (PC) that regulate criminal responsibility for offences against ’s national security are of central importance here. Information of importance for international cooperation for peace and security in which is participating can, as stated above, be subject to secrecy, in certain cases, under an act of law other statute or under an authorisation or restriction issued pursuant to an act or other statute. The disclosure of such information can therefore raise the question of criminal responsibility for a breach of the duty of secrecy under Ch. 20, Sec. 3 of PC. If an act includes the exercise of public authority, it may, in certain circumstances, also involve criminal responsibility for misuse of office under Ch. 20, Sec. 1 of PC. In addition, Ch. 4 of PC contains provisions criminalising acts that mean that someone unlawfully gains access to various forms of communications. These provisions may also be applicable if the act is committed in order to get at sensitive information occurring within the framework of international cooperation for peace and security in which is participating. Espionage and gross espionage 19, Sec. 5 of the PC states that a person who, in order to aid a foreign power, without authorisation procures, transmits, gives or otherwise discloses information concerning a defence facility, arms, supplies, imports, exports, means of production, negotiations, decisions or other matters, the revelation of which to a foreign power can cause harm to ’s security, is guilty – whether the information is correct or not – of espionage and shall be sentenced to imprisonment for at most six years. This provision also states that it is punishable to produce or have any dealing with a written document, drawing or other object containing such information without authorisation. If the offence is gross the perpetrator is, under Ch. 19, Sec. 6 of PC, guilty of gross espionage and shall be sentenced to imprison- ment for a fixed term, at least four and at most eighteen years, or for life. In assessing whether the crime is gross, special con- sideration shall be given to whether the act was of an exceptionally dangerous nature in view of an ongoing war or concerned a matter of great importance or whether the perpetrator disclosed some- thing entrusted to them by reason of their position in public or private service. One precondition for criminal responsibility for espionage is that the ‘harm requirement’ is met. This means that revelation of the matter concerned could result in harm to “’s security”. The harm requirement means that the scope of the criminal pro- vision is restricted to really important matters.3 The section gives examples of matters of great protective value that can typically be 3 See e.g. Govt 1948:80, “proposing an act amending the Penal Act etc”. [med förslag till lag om ändring i strafflagen m.m.], p. 123 and Govt 1979/80:176, “amending the Penal Code (espionage etc.)” [om ändring i (spioneri m.m.)], p. an object of interest for a foreign intelligence service, namely infor- mation about defence facilities, arms, supplies, imports, exports, means of production, negotiations and decisions. The examples are not of decisive importance for the scope of the provision and are only intended to clarify the meaning of the section. The examples given mean, among other things, that the espionage provision is not restricted to ‘military espionage’ but also covers other forms of espionage. For example advanced forms of industrial espionage and political espionage.4 Espionage is a an offence against the freedom of the press under Ch. 7, Sec. 4, first paragraph, point 3 of FPA and an offence against freedom of expression under Ch. 5, Sec. 1 of FLFE. Espionage is also entered in Ch. 7, Sec. 3, first paragraph, point 1 of FPA and Ch. 5, Sec. 3, first paragraph, point 1 of FLFE, which means that the ‘freedom to communicate information’ does not apply. 7, Sec. 3, second paragraph of FPA and Ch. 5, Sec. 3, second paragraph of FLFE a procurer of information is not protected from criminal liability either. The same applies to attempt, preparation and conspiracy to commit espionage. Unauthorised dealing with secret information and gross unauthorised dealing with secret information 19, Sec. 7 of PC criminalises unauthorised dealing with secret information. The offences of espionage and unauthorised dealing with secret information differ regarding the subjective requirement and the nature of the information. Criminal liability for unauthorised dealing with secret information does not require the perpetrator’s purpose to have been to aid a foreign power. But there is a require- ment that the information – in addition to meeting the harm require- ment – concerns a matter of a secret nature. The scale of penalties for the offence is a fine or imprisonment for at most two years. If the offence is gross, the perpetrator is guilty of gross unauthorised dealing with secret information and the scale of penalties is then imprisonment for at most four years (Ch. 19, Sec. 7 of the PC). In assessing whether the offence is gross, special consideration shall 4 Govt 2013/14:51, “Reinforced protection against the intelligence activities of foreign powers” [Förstärkt skydd mot främmande makts underrättelseverksamhet], p. be given to whether the act involved assistance of a foreign power or was of an exceptionally dangerous nature in view of an ongoing war or related to a matter of great significance or whether the per- petrator disclosed what had been confided to them by reason of public or private service. Unauthorised dealing with secret information is an offence against the freedom of the press under Ch. 7, Sec. 4, first paragraph, point 4 of FPA and an offence against freedom of expression under Ch. 5, Sec. 1, first paragraph of FLFE. The same applies to attempt and preparation to commit unauthorised dealing with secret information and to conspiracy to commit the offence, if it is considered gross. 7, Sec. 3, first paragraph, point 1 and second paragraph of FPA and Ch. 5, Sec. 3, first paragraph, point 1 and second para- graph of FLFE, the ‘freedom to communicate and procure infor- mation’ does not apply to gross unauthorised dealing with secret information or to attempt, preparation or conspiracy to commit such an offence. Negligence with secret information 19, Sec. 9 of PC a person who through gross negligence transmits, gives or reveals information referred to in the provision on unauthorised dealing with secret information is guilty of negligence with secret information and shall be sentenced to a fine or im- prisonment for at most one year or, if the country was at war, to a fine or imprisonment for at most two years. So for there to be criminal responsibility the objective requirements for the offence of unauthorised dealing with secret information have to be fulfilled. In subjective terms, however, it is sufficient that the perpetrator has been grossly negligent. The gross negligence requirement applies with regard to all the objective requirements for the offence, i.e. even with regard to the characteristics of the information that mean that it falls within the scope of the penal provision. Another difference in relation to what applies to unauthorised dealing with secret information is that criminal responsibility for carelessness with secret information is limited to transmitting, giving or revealing such information. Negligence with secret information is an offence against the freedom of the press under Ch. 7, Sec. 4, point 5 of FPA and an offence against freedom of expression under Ch. 5, Sec. 1, first paragraph of FLFE. Unlawful intelligence activities against 19, Sec. 10 of PC criminalises activities for the purpose of acquiring information of the kind referred to in the provision on espionage, i.e. information concerning matters that it can damage ’s security for a foreign power to be aware of. Under the first paragraph, a person is convicted if they, in order to aid a foreign power, secretly or by fraudulent means either conduct activities designed to procure information concerning matters whose revelation to a foreign power can result in harm to ’s security, or are complicit in such activities on a more than temporary basis. The penalty for the offence is imprisonment for at most two years. If the offence is gross, a particularly severe scale of penalties applies under the second paragraph: imprisonment for not less than six months and not more than four years. The assessment of whether the offence is gross has to be based on an overall appraisal of the circumstances in the particular case. Examples of circum- stances that can lead to an offence being assessed as gross are if the act was of a particularly dangerous nature in view of the foreign policy situation or of the character and scope of the activities or if the perpetrator held a special post that included trust to be re- sponsible for information of a sensitive or secret nature and the act entailed misuse of that trust. Unlawful intelligence activities against a foreign power 19, Sec. 10 a, first paragraph of PC states that a person who, in order to aid a foreign power, here in either conducts activities whose purpose is to procure information about matters, the revelation of which to that foreign power may cause harm to the security of another foreign power, or is complicit in such an activity on a more than temporary basis is guilty of unlawful intelli- gence activities against a foreign power and shall be sentenced to a fine or imprisonment for at most one year. If the offence is gross, the perpetrator shall, under Ch. 19, Sec. 10 a, second paragraph, be sentenced to imprisonment for at least six months and at most four years. Criminal liability for attempt, preparation and conspiracy to commit certain offences under Ch. 19 of PC and for failure to reveal or prevent such offences 19, Sec. 14 of PC regulates criminal liability for attempt and preparation to commit offences included in Ch. 19 of PC. Under the provisions of the first paragraph attempt and preparation to commit offences including espionage, gross espionage, gross un- authorised dealing with secret information, unlawful intelligence activities against a foreign power or unauthorised dealing with secret information are criminalised in the way specified in Ch. 23 of PC. 19, Sec. 14, first paragraph of PC also criminalises con- spiracy to commit offences including espionage, gross espionage, unauthorised dealing with secret information, gross unauthorised dealing with secret information and unlawful intelligence activities against a foreign power. 19, Sec. 14, second paragraph of PC regulates the extent to which a person can be punished for failure to reveal an offence when the offence is criminalised under a provision of Ch. 19 of PC. It also follows from this provision that it is punishable to not reveal offences including espionage, gross espionage and gross unauthorised dealing with secret information. Criminal liability for negligent complicity in certain offences under Ch. It follows from Ch. 23, Sec. 4 of PC that responsibility for a criminal act is assigned not only to the person who committed the act, but also to anyone who furthered it by advice or deed. Responsibility for complicity is of more general application than responsibility for attempt and responsibility for preparation and conspiracy to commit an offence or failure to reveal or prevent in the sense that it does not require there to be specific regulation of responsibility for complicity for the offence concerned. Responsibility for complicity in an offence is generally applicable in relation to all offences in PC. Each accomplice is assessed according to the intent or the negligence attributable to them. Moreover, under Ch. 19, Sec. 15 of PC, if a person who ought, in view of what they knew on account of a warning given or for some other reason, to have realised that offences including espionage, gross espionage and gross unauthorised dealing with secret infor- mation were taking place, is complicit in the act, they are guilty of being an accessory to it. However, under this provision the penalty may not exceed imprisonment for two years. For there to be criminal liability under Ch. 19, Sec. 15 of PC, the accomplice must have had intent regarding the act through which they were complicit. The accomplice must also have acted even though they had know- ledge that ought to have made them refrain. So the component of negligence is that the accomplice ought to have realised on account of this knowledge that an offence of a particular kind was at hand. Before a person can be convicted of careless complicity, the principal offence must have progressed so far that it can lead to a penalty. However, the offence does not have to be completed; it is quite sufficient for the act to reach the level of punishable attempt or preparation to commit an offence. 20, Sec. 1 of PC states that a person who through an act or omission in the exercise of public authority disregards what applies to their task intentionally or through negligence is guilty of misuse of office except in minor cases. The scale of penalties for misuse of office is a fine or imprisonment for a most two years. if the offence is gross, a sentence of imprisonment for at least six months and at most six years can be imposed. Breach of a duty of secrecy A person who discloses information that they are obliged to keep secret under an act of law or other statute or by an order or re- striction issued under a law or other statute is guilty of a breach of a duty of secrecy under Ch. 20, Sec. 3 of PC unless a penalty for the act is prescribed elsewhere. The same applies if a person unlaw- fully makes use of such a secret. For there to be criminal liability for a breach of a duty of secrecy, a person must disclose or unlaw- fully make use of information they have a duty to keep secret under Swedish law. Provisions of this kind are mainly found in PAISA. Secrecy regulations that are based on foreign law or that fall outside the exercise of Swedish public authority are not covered by this criminal provision. The scale of penalties for breach of a duty of secrecy is a fine or imprisonment for at most one year. If someone commits such an act out of negligence, they are sentenced to a fine instead. No responsibility is assigned in minor cases. Certain offences in Ch. 4 of PC criminalises acts including someone unlawfully gaining access to various forms of communications.