sou · H5B370 · 2017-09-28 00:00:00 — Criminal responsibility does not require that the information has actually been handled in an activity covered by PAISA or that the person who has relayed the information is subject to a duty of secrecy as long as the information would have been covered by a 7 See the report of the Act Inquiry “A new protective security act” [En ny säkerhetsskyddslag] (SOU 2015:25) p. 55 and p. secrecy provision if it had occurred in the activities of the public institutions. This means that information of a secret nature in private activities or in an international military operation etc., that is not referable to Swedish exercise of public authority may come within the punishable area. So the application of the criminal provision is not dependent on a formal examination of secrecy under PAISA. is the handling of the information as secret in the activity a formal requirement for criminal responsibility. However, the perpetrator’s intent also has to cover the fact that the information concerned a secret matter. This means that, in practice, the question of criminal liability would probably mainly be raised concerning information that has been kept secret in the activity and where this has been expressed in some way. In cases where the information has been handled as open information in the activity – even though it is subject to secrecy – the perpetrator is generally likely not to have had intent. The limitation to information of a secret nature means that there are already considerable restrictions on the possibilities of spread- ing the information for publication in media protected by the fundamental laws. This is seen from provisions including Ch. 7, Sec. 3, points 2 and 3 and Ch. 7, Sec. 5, points 1 and 2 of FPA as well as Ch. 5, Sec. 3, points 2 and 3 of FLFE. For this reason alone the criminal provision is unlikely to result in any great change in terms of freedom of the press and freedom of expression. The acts that the criminal provision is intended to hit are of a serious nature. However, the criminal provision may cover acts of various kinds and gravity. At worst, this criminality may lead to very severe consequences for ’s foreign relations. A revelation of secret information may put human life at risk and cause great destruction. It can also lead to it not being possible to implement all or parts of an international peace operation at all or as planned. As stated above, criminal liability requires that the act concerned can result in serious harm to ’s relations with another state or to an inter- national organisation. This means that the scale of penalties should be relatively severe in order to reflect the fact that there is reason to take a serious view of the type of offence concerned. The scale of penalties must also have sufficient range to permit nuanced and differentiated sentencing and mean that a sentence corresponding to the severity of the offence can be imposed. The scale of penalties for the offence should therefore permit the imposition of a sentence of imprisonment for at most four years. In addition, given the nature of the offence there is a presumption of imprisonment. A separate offence of gross foreign espionage should be introduced. In the offence is gross, it should be possible to impose a sentence of imprisonment for at least two and at most eight years. In assess- ing whether the offence is gross, special consideration should – as is the case for espionage – be given to whether the act was of an exceptionally dangerous nature in view of an ongoing war or con- cerned a matter of great importance or whether the perpetrator disclosed something entrusted to them by reason of their position in public or private service. Criminalisation of conduct without direct intent or through gross negligence We propose expanding the criminal provisions in Ch. 19, Sections 7–9 of PC so that an act that meets the objective requirements for foreign espionage, but that is carried out without the purpose of aiding a foreign power or association, or that is carried out through gross negligence, can lead to criminal responsibility for unlawful handing of secret information or negligence with secret information. Criminal responsibility for attempt, preparation, conspiracy to commit an offence, negligent complicity in an offence and failure to expose or prevent an offence The provisions of Ch. 19, Sections 14 and 15 of PC on criminal responsibility for attempt, preparation, conspiracy to commit an offence, negligent complicity in an offence and failure to expose or prevent an offence should be made applicable to foreign espionage to the same extent as they apply to espionage. An expansion of the punishable area for offences against a duty of secrecy We propose expanding the provision in Ch. 20, Sec. 3 of PC on criminal liability for breach of a duty of secrecy to also cover dis- closure of information of a secret nature in international coopera- tion for peace and security in which is participating. This is quite irrespective of whether the information is secret under Swedish law or some other statute. The crucial point is that the information would have been covered by secrecy if it had occurred in public activities. This expansion means that disclosures that are not serious enough to be punished under our proposals of new offences in Ch. 19 of PC can still be hit by criminal liability. This criminalisation is consistent with the Instrument of Government and Convention on Human Rights () contains fundamental pro- visions about freedom of expression and freedom of information. As regards freedom of the press and corresponding freedom of expression in certain other media, for example radio and television and similar transmissions as well as film, the provisions of FPA and FLFE are applicable. Freedom of expression and information are also protected in Convention on Human Rights. Freedom of expression and freedom of information may be limited in law or – in respect of information that has come to a person’s knowledge in public service or in the performance of official duties – with authority in law (Ch. 2, Article 20 IG). A limitation may only be imposed to satisfy a purpose acceptable in a democratic society. However, a limitation must never go beyond what is necessary with regard to the purpose that occasioned it; nor may it be carried so far as to constitute a threat to the free shaping of opinion. may a limitation be imposed solely on grounds of a political, religious, cultural or other such opinion (Ch. 2, Article 21 It follows from Ch. 2, Article 23 of IG that of freedom of expression and information may be limited in view of certain specified interests including national security, public order and public safety and the prevention and prosecution of crime. Other- wise freedom of expression and freedom of information may only be limited where particularly important grounds warrant doing so. As mentioned above, freedom of expression is also protected by Convention on Human Rights. Under Article 10 (1) of the Convention everyone has the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. However this right is not absolute. The exercise of freedom of expression may, under Article 10 (2), be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime and for preventing the dis- closure of information received in confidence among other interests. A criminalised prohibition of espionage-like acts that may harm ’s relations to another state or to an international organisa- tion can include a limitation of both freedom of information and freedom of expression to the extent that information may not be procured and therefore cannot be conveyed to others either. A prohibition of this kind also hits the procuring and conveying of information for publication in the media. The ultimate purpose of the prohibition is to protect ’s security. This is a purpose that according to both IG and Convention is accepted as grounds for limiting freedom of expression and information. The criminalisation of espionage-like acts that may harm ’s relation to another state or an international organisation is thus consistent with both IG and Convention on Human Rights. The new offence should be covered by the regulations in Ch. 7, Sec. 3 FPA and Ch. and be an offence against freedom of the press and freedom of expression One of the fundamental principles of FPA and FLFE is the principle of sole responsibility. This means that only one of the generally many people who participated in the production of material pro- tected by the fundamental laws bears the criminal responsibility for the content of the material and that other participants are therefore free from responsibility. In addition, IG and FLFE also contain rules that expressly protect a person who participated in the pro- duction of material protected by the fundamental laws, including the person who provided information for publication (freedom to communicate information) and the person who procured infor- mation intended for publication (freedom to procure information). In principle, freedom to communicate information means a freedom to communicate information for publication in media protected by the fundamental laws without the risk of punishment irrespective of whether the information is published. The freedom to procure information means that everyone has the right, with impunity, to procure information intended for publication in a medium covered by the fundamental laws. The freedoms to communicate and to procure information are not absolute. 7, Article 3 of FPA set out the exceptions when a person communicating information for material protected by the fundamental laws or other participants in it can be held criminally responsible for their participation. The provisions refer both to the person communicating information under Ch. 1, Article 1, third paragraph of FPA, i.e. the person normally called the communicator, and a person who, without being responsible under the provisions of Ch. 8 of FPA on sole responsibility, contributes to material intended for insertion in printed matter as author or other originator or as editor. This provision means that the three cases given there are excluded from the scope of FPA and that provisions of ordinary law shall be applied instead. Point 1 takes up the case where the participant commits high treason, espionage, gross espionage, gross unauthorised handling of secret information, insurrection, treason or betrayal of country, or any attempt, preparation or conspiracy to commit such an offence. Point 2 takes up the case where the partici- pant commits intentional wrongful release of an official document to which the public does not have access, or release of such a docu- ment in contravention of a restriction imposed by a public authority at the time of its release. Point 3 take up the case where the partici- pant commits deliberate disregard of a duty of secrecy, in cases specified in a special act of law. With respect the responsibility of a procurer, Ch. 7, Sec. 3, second paragraph of FPA states that if a person procures information or intelligence in order to publish it in a medium protected by the fundamental laws and thereby commits an offence referred to it the first paragraph, point 1 of the provision, then provisions of ordinary law, i.e. PC, concerning liability for such an offence apply. FPA also contains an enumeration of the acts that are offences against the freedom of the press if they are committed by means of printed matter “and are punishable under law” (Ch. 7, Art 4 FPA). They include a number of offences against national security: for example, high treason, espionage, unlawful dealing with secret information and negligence with secret information. Offences against the freedom of the press also include certain acts that entail that the actual publication constitutes an unlawful publication of secret documents, an intentional disregard of certain enhanced secrecy and, in the event of war or immediate danger of war, other offences against national security than those specified in Ch. 7, Article 4 FPA (Ch. 7, Art 5 FPA). By means of a reference in FLFE, offences against freedom of the press shall be regarded as offences against freedom of expression if they are committed in material that is covered by FLFE and are punishable under law (Ch. 5, Article 1 FLFE). Espionage, unauthorised dealing with secret information and negligence with secret information are thus offences against the freedom of the press under Ch. 7, Sec. 4 of FPA. This means that a person who has the sole responsibility can be convicted of such an act if it is committed in printed matter (following the procedure prescribed in FPA). Espionage, gross espionage and unauthorised dealing with secret information are also covered by Ch. 7, Sec. 3 FPA, which means that freedom to communicate and procure information do not apply in these cases. So the legislator has con- sidered that the reasons for criminalisation in these cases are so strong and that publication of information covered by the criminal provisions can result in such damage that freedom of the press and of expression have to give way to satisfy the purpose of the criminal regulation. Even though the immediate protective interest for foreign espionage and associated types of offences is not ’s security and even though the harm requirement is framed in a slightly different way from in the espionage provision, there are reasons to equate this criminal activity in this respect with the above-mentioned offences in Ch. 19 of PC. As stated, they involve serious criminal activity and a very important protective interest. As with respect to the limitation of freedom of the press re- garding espionage, gross espionage and unauthorised dealing with secret information, it is thus proportionate to limit freedom of the press regarding foreign espionage and associated types of offences by exempting them from freedom of the press. As regards the most serious types of offences, i.e. foreign espionage, gross foreign espionage and gross unauthorised dealing with secret information grounded in foreign espionage, it is also proportionate to exclude them from freedom to communicate and procure information, as is the case regarding their equivalents among espionage offences. This means, according to our proposal, that a person who is prosecuted for these gross offences – and who would normally be protected by freedom to communicate and procure information – will be subject to legal proceedings in a normal trial or freedom of the press trial even if their freedom to communicate/procure information related to publication in media protected by the fundamental laws. This proposal hereby links this regulation to the present handling of espionage offences. These offences involve direct intent or, in the case of gross unauthorised dealing with secret information, such flagrant conduct that the offences surely belong in the regular procedure for criminal matters. Such regulation also appears logical and consistent. We therefore propose amending the provisions of Ch. 7, Art 3–4 of FPA and corresponding provisions in FLFE so that foreign espionage, gross foreign espionage and gross unauthorised dealing with secret information grounded in foreign espionage be excluded from the freedom to communicate and procure information in Ch. 7, Art 3 of FPA and Ch. 5, Art 3 of FLFE and that these offences, along with an act that takes place by gross negligence, be included in the offences against the freedom of the press in Ch. 7, Art 4 of FPA and therefore also in Ch. 5, Art. 3 of FLFE. We also propose including their inchoate offences (preparation, attempt and conspiracy) to commit foreign espionage and gross foreign espionage in the catalogue of offences. Not including the above-mentioned offences in the catalogue of offences would mean that there would be no penalty for committing the offences through publication in printed matter, which would appear remarkable in comparison with the present system. This obviously means an expansion of the offences against freedom of the press. Not doing so opens the way to the use of media protected by the fundamental laws in order to disclose secret information of the kind concerned to unauthorised persons. It is fully possible, as shown in detail in Ch. 5, that, in such a situation, a foreign power or association would be able to exploit the freedom of the press and of expression protected by the fundamental laws to get at information covered by the criminalisation proposed. At the same time as the insertion of foreign espionage and associated offences into the catalogue of offences limits freedom of the press, it must be borne in mind that the special procedure that applies to the treatment of offences against freedom of the press is a way of safeguarding freedom of the press that is not found in most countries comparable with . The instruction in Ch. 1, Art. 4 of FPA and Ch. 1, Art. 5 of FLFE contributes to ensuring that no one will be convicted of offences against freedom of the press and freedom of expression except in cases involving expressions that are clearly beyond acceptable limits. This is because, under these provisions, any person entrusted with passing judgment on abuses of the freedom of the press and of expression or otherwise over- seeing compliance with the fundamental laws should bear in mind that the freedom of the press and of expression are fundamental to a free society and always direct their attention more to the aim than the of presentation and, in case of doubt, acquit rather than convict. The right of the Chancellor of to make a discretionary assessment and the possibility of examination by a jury of whether or not an expression is criminal function as pro- tection for freedom of the press and of expression. In addition, foreign espionage and associated offences are limited to information of a secret nature, which, as stated, means that there are already considerable restrictions on the possibilities of spreading the information for publication in media protected by the fundamental laws. For this reason alone the criminal provision is unlikely to result in any great change in terms of freedom of the press and free- dom of expression. The possibility of using coercive measures In view of the nature and seriousness of this criminal activity and the interest of effective and appropriate regulation in criminal law, there should be the same possibilities of using coercive measures – i.e. interception of electronic communication, surveillance of electronic communication, camera surveillance and localised interception – on suspicion of an intentional offence of the present kind as is the case of other com- parable offences in Ch. 19 of PC. We therefore propose amending the provisions of Ch. 27, Sec. 2 of the Code of Judicial Procedure (CJP) so that a written communication between the suspect and a related person or between such related persons is seized from the suspect or a related person in a preliminary investigation into foreign espionage, gross foreign espionage, unauthorised dealing with secret information and gross unauthorised dealing with secret information originating in foreign espionage. We also propose amending the provision in Ch. 27, Sec. 2 of CJP so that the second paragraph states that localised interception may be used in a preliminary investigation into foreign espionage and gross foreign espionage. The exemption from the notification obligation under Ch. 27, Sec. 33, third paragraph of CJP shall – as is the case with espionage and associated offences – also apply to a preliminary investigation into foreign espionage and gross foreign espionage and into un- authorised dealing with secret information and gross unauthorised dealing with secret information grounded in foreign espionage. We also propose making the Act on measures to prevent certain particularly serious offences (2007:979) applicable to foreign espionage and gross foreign espionage and to gross unauthorised dealing with secret information grounded in foreign espionage. We also propose making the Act (2012:278) on the collection of infor- mation about electronic communication in the intelligence activities of the law enforcement agencies applicable to foreign espionage and gross foreign espionage. An expansion of Swedish criminal jurisdiction With the expansion of the concept of international security, the activities in international cooperation for peace and security in which is participating have grown in number and size at the same time as more and more categories of personnel are partici- pating in international missions. There is a corresponding increase in the practical need for consistent rules about jurisdiction that regulate the jurisdiction of the posting state over its personnel. The local immunity usually enjoyed by posted international personnel under special agreements entails commitments for the posting state to maintain full jurisdiction over its personnel. While persons belonging to the international staff of the Swedish Authority and other officers, customs officers or officers of the Swedish Guard who perform duties according to an international agreement are exempted under Ch. 2, Sec. 3 of PC from the requirement of dual criminality, there is no corresponding regulation for other civilian staff participating in international cooperation for peace and security. To the extent that posted individuals commit acts that are offences under Swedish legislation but that are not offences at the place where they are committed, it may therefore not be possible to bring legal proceedings against the individual in a Swedish court. The UN has pointed out in various contexts that it is up to and other posting states to maintain jurisdiction over posted personnel. The present situation means that, with respect to jurisdiction, is not fully living up to its international undertakings to punish offences committed by Swedish personnel participating in international missions within the UN framework. We propose supplementing the provision in Ch. 2, Sec. 3 of PC to also make a clear exception from the requirement of dual criminality concerning offences committed by other civilians than persons be- longing to the international staff of the Swedish Authority and other officers, customs officers or officers of the Swedish Guard who perform duties according to an international Such an expansion thus not only means that the Swedish regulations on jurisdiction fulfil the international com- mitments made by . It also has the function of providing instruction and clarification, not least for the posted personnel concerned. The proposed exception from the requirement of dual crimi- nality is generally worded and covers all Swedish citizens or aliens habitually resident in who, in cases other than those referred to in Chap 2, Sec. 3, points 2–3 a of PC, are participating in an international mission within the framework of international cooperation for peace and security in which is participat- ing. The new exception from the requirement of dual criminality is not limited to offences committed in the course of their duty but covers all offences committed when serving abroad. In addition, we also propose a supplement to the exceptions made in Ch. 2, Sec. 5, second paragraph of PC so that prosecutions for these offences may be brought without authorisation to prose- cute except regarding personnel from the foreign intelligence agencies. lag om ändring i Härigenom föreskrivs i fråga om