sou · H9B320 · 2022-01-01 00:00:00 — Befintliga dataskydds- och sekretessbestämmelser är tillräckliga. Vi anser inte heller att det krävs någon ytterligare nationell regler- ing för att uppfylla ändringsdirektivets krav på uppgift om med- borgarskap i brottmålsavgöranden. Däremot har vi uppmärksammat att den information om medborgarskap som domstolarna har till- gång till inte är fullständig. Vi föreslår därför att , i samverkan med , får i uppdrag att anpassa och utveckla den informationstjänst som tillhandahåller domstolarna så att den bättre tillgodoser det behov som finns av en mer komplett redovisning av medborgarskap i brottmålsavgöranden. Som vi har konstaterat är inte bundet av änd- ringsdirektivet. Det är vår bedömning att det inte krävs någon ytter- ligare nationell reglering för att åtaganden i förhållande till ska bli fortsatt uppfyllda när det gäller informationsutbytet genom Ecris. Påföljd som saknar motsvarighet i Rambeslutet om Ecris innebär att uppgifter om påföljder överförs och registreras i belastningsregistret även om påföljderna saknar mot- svarighet i . Uppgifter om påföljder som har överförts via Ecris har inte gall- rats enligt de allmänna gallringsfristerna i 16 och 17 §§ lagen om belastningsregister när den utdömda påföljden saknar motsvarighet i , och inte heller då påföljden utgörs av en kombination av en sådan påföljd och en påföljd som har motsvarighet i . En konsekvens av detta är att uppgiften om avgörandet bevaras i belast- ningsregistret om domsstaten inte meddelar att gallring har skett i den staten. För en mer ändamålsenlig hantering av påföljder som inte i någon del har en svensk motsvarighet föreslår vi att gallringsbestämmelserna ändras så att en sådan uppgift alltid ska gallras när påföljden har verk- ställts eller annars senast efter den dom eller det beslut som föranledde att uppgiften fördes in i registret. På så vis säkerställs att uppgifter om avgöranden där påföljden inte i någon del har en svensk motsvarighet inte finns kvar i belastningsregistret längre än nödvändigt i de fall ett meddelande om gallring uteblir från domsstaten. I de fall där påföljden som har förts in i belastningsregistret med stöd av rambeslutet om Ecris består av en kombination av en påföljd som har en svensk motsvarighet och en tilläggssanktion som närmast svarar mot vad som utgör särskild rättsverkan, klargör vi att en sådan uppgift kan gallras med stöd av de allmänna gallringsfristerna i 16 och 17 §§. I lagen om belastningsregister finns bestämmelser om att gallring inte ska ske enligt de allmänna gallringsfristerna så länge en annan anteckning om samma person finns kvar i belastningsregistret, s.k. uppskjuten gallring. Vi föreslår att den uppskjutna gallringen även ska gälla uppgifter om avgöranden som har överförts via Ecris, vilka har varit undantagna från denna reglering. Genom att den uppskjutna gall- ringen även ska omfatta avgöranden från Ecris likställs hanteringen av dessa avgöranden med hanteringen av andra avgöranden som registreras i belastningsregistret. Vårt förslag innebär att uppgifter som överförs via Ecris kan finnas kvar i belastningsregistret än tidigare för per- soner som upprepade gånger döms för brott. Detta får dock inte innebära att uppgifter om sådana avgöranden vidarebefordras vid svar på ansökan enligt rambeslutet om Ecris sedan ett meddelande om gallring har inkommit från domsstaten. För att uppfylla detta krav i rambeslutet föreslår vi att det införs en bestämmelse som för- tydligar att en uppgift inte får lämnas ut med stöd av rambeslutet om har underrättats av behörig myndighet i den stat som har överfört uppgiften om att uppgiften har gallrats i den staten. has long had an exchange of information on criminal con- victions with other countries. In order to improve the exchange of information on criminal convictions between EU Member States a framework decision and a council decision were adopted in 2009 on the ECRIS system, which is a decentralised system based on the national criminal records of Member States. The system means that every that imposes a sentence on a national of another has to inform the of the convicted person’s nationality of the sentence. That then stores the information, and this means that each obtains full information about their own citizens’ criminal history in the EU. This information can be forwarded in response to inquiries from other Member States. The procedure for requesting information from criminal records has been accelerated and simplified through ECRIS. It is not only information about convictions that is forwarded via ECRIS; certain identity information such as name, date of birth, fingerprints and any pseudonym or alias are also forwarded. joined the ECRIS system in 2013, when the Swedish Authority became the Swedish central authority for the cooperation. When the framework decision was implemented, amendments were made to the Act (1998:620) and the associated government ordinance (1999:1134) in particular. In principle, the ECRIS excludes an exchange of information about convicted third-country nationals, i.e. persons who are not EU citi- zens. Unlike when an EU citizen is convicted in the EU, there is, in the case of third-country nationals, no of their nation- ality that receives and stores their full criminal history. A must therefore send general requests to all Member States to obtain a complete overview of a third-country national’s criminal history in the EU. For practical reason, this can often not be done. The ECRIS system is therefore seldom used to request information about convicted third-country nationals. This means that courts and law enforcement agencies do not have access to complete informa- tion about the criminal history in the EU of convicted third-country nationals. To improve the exchange of information about convictions of third-country nationals in the EU, in 2019 Parliament and the Council issued a regulation establishing a centralised system for the identification of Member States holding conviction informa- tion on third-country nationals and stateless persons (ECRIS-TCN), called the ECRIS-TCN Regulation here. This Regulation, which is directly applicable, lays down rules on the of a cen- tralised system at EU level, including provisions about personal data, the rules on the division of responsibilities between the Member States and the organisation responsible for the development and maintenance of the centralised system. It also lays down certain data protection provisions. In accordance with what is stated in more detail in the Regulation, the convicting has to create a data record in ECRIS- TCN for each convicted third-country national. This also applies if the person is an EU citizen. The data record has to contain various identity information for the convicted person, including their name, date of birth and fingerprints. Ahit in ECRIS-TCN means that the searching re- ceives information about what other Member States have informa- tion about convictions of a particular third-country national. How- ever, a hit does not give a reply as to what the convictions involve, e.g. the offence and penalty. To obtain that information, a hit in ECRIS-TCN must be followed up by an application in the ECRIS system to the that has this information. The of ECRIS-TCN means that the existing ECRIS system will be used to a much greater extent for exchanging criminal record information about third-country nationals. To ensure an effective exchange of this information, Parliament and the Council have adopted a Directive amending the Framework Decision regarding ECRIS (the Amending Directive). This Direc- tive contains provisions on nationality in convictions and on the obligation to annex facial images when notifying convictions. In addition, the Amending Directive makes clear that extracts from the criminal records that refer to or are requested by a third-country national have to be supplemented with information from other Member States. Unlike the ECRIS-TCN Regulation, the Amending Directive is not directly applicable and has to be implemented in Swedish law. In summary, our remit has been to examine what changes need to be made to Swedish law on account of the ECRIS-TCN Regulation and the Amending Directive and to present the necessary statutory pro- posals. As regards fingerprints, the ECRIS-TCN Regulation states that data records have to at least contain fingerprints of third-country nationals, without EU citizenship, who have received a custodial sentence of at least six months. Our remit has been about analysing which statutory amendments are required to ensure that the data records contain these fingerprints. However, our remit has also in- cluded – without this following from the Regulation – the question of whether fingerprints should be taken of everyone who has received a custodial sentence of at least six months, i.e. not only third-country nationals who have received such a custodial sentence. In the part of our remit that applies to fingerprints we have therefore been tasked with presenting alternative statutory proposals: one aimed at every- one who has received a custodial sentence of at least six months and one that applies to third-country nationals, without EU citizenship, who have received such a sentence. Since the Amending Directive entails an obligation to attach the facial images available to notifications via ECRIS, we have also had to consider whether these images should also be used for data records in ECRIS-TCN. Our remit has also concerned the Regulation’s requirement of alphanumeric data in the data records. Another part of our remit has been to analyse whether and, if so, to what extent it should be possible to use ECRIS-TCN outside the mandatory scope of the Regulation. Our remit has also concerned questions as to when ECRIS-TCN must not be used and when it should be possible to use the system for searches concerning EU citizens. As regards the Amending Directive, our remit, over and above the question of facial images, has concerned the implementation of provisions when a request in ECRIS refers to or is made by a third- country national. This part of our remit has also included informa- tion about nationality in convictions and exchanges of information with , which is not bound by the Amending Directive. Finally, our remit has included analysing whether there is a need to make certain amendments to the provisions on weeding in the Act and, if so, to present the necessary statutory proposals. This part of our remit is not due to the review of the ECRIS-TCN Regulation or the Amending Directive. ECRIS-TCN – purpose and use We propose that provisions supplementing the ECRIS-TCN Regu- lation be included in a new act (the supplemental act). The act should be applicable to convicted third-country nationals, with or without EU citizenship, in accordance with the scope of the Regulation. A special provision in the supplementing act makes clear that ECRIS-TCN may only be used if the request for information from criminal records is made by a public authority or by an individual who is requesting information about themselves. As regards the purposes of ECRIS-TCN, they should correspond to the purposes of the Swedish criminal records, since obtaining in- formation about convictions in another is essentially of the same value as obtaining information from Swedish criminal records. We therefore propose a regime in the supplemental act stating that it should be possible to use ECRIS-TCN even if the purpose of the search of criminal records is not a purpose that comes under the mandatory scope of ECRIS-TCN. Purposes of Swedish criminal records that are outside the mandatory area include the activities of the Swedish Authority, the , the , the Swedish Customs and the Swedish Guard to avert, prevent or detect criminal activities. In these cases ECRIS-TCN may only be used if the party requesting information from criminal records has specifically stated this. Under the ECRIS-TCN Regulation, a public authority may make a decision not to use ECRIS-TCN. In view of this, we propose that a public authority should, in such cases, have to take account of the need for the information, whether the extract refers to vetting that cannot be deferred or whether there are any other special reasons for not using ECRIS-TCN. A public authority that has made a decision not to use ECRIS-TCN should notify the Swedish Authority of its decision when the public authority requests information from criminal records. Since it is possible for a person who is an EU citizen to have pre- vious convictions as a third-country national, the Regulation permits the use of ECRIS-TCN in a search concerning a person who is an EU citizen. In accordance with this, we propose that the Swedish Authority should use ECRIS-TCN in searches in criminal records concerning an EU citizen if act or other statute provides that an extract from criminal records has to be presented or submitted or if the party requesting an extract from criminal records has speci- fically stated this. Data records in ECRIS-TCN The ECRIS-TCN Regulation provides that data records have to contain alphanumeric data and fingerprint data. The data records may also contain facial images. The alphanumeric data required in the data records can be taken from criminal records or from the Swedish Authority’s personal description records. No national regulation is required to enter this data in the data records in ECRIS-TCN. We propose that the Swedish Authority should enter facial images in the data records in ECRIS-TCN to the extent that the facial images are available in the Authority’s personal description records. Entering these facial images is of importance in verifying the identity of a third-country national who has been convicted of an offence. This improves the functionality of ECRIS-TCN. By extension, it therefore increases the possibilities of using the system to identify the Member States that hold information in criminal records about a third-country national. We also propose that the facial images available should be attached when the Swedish Authority, acting pursuant to the ECRIS Framework Decision, notifies a of a conviction of their national and when the Swedish Authority, acting at the request of another , releases information from criminal records for use in criminal proceedings. The fingerprints gathered during a preliminary investigation and processed in the Swedish Authority’s fingerprints register are among the information that has to be entered in the data records under the ECRIS-TCN Regulation. We propose that fingerprints taken pursuant to the Act concerning Special Controls in respect of Aliens (1991:572) or that have been transferred to pursuant to the ECRIS Framework Decision should also be entered in the data records. These data, which may be processed in the fingerprints register, may be used to investigate offences and need to also be in ECRIS-TCN for the same reason. As stated below, we propose expanding the taking of fingerprints of convicted persons, irrespective of nationality. To the extent that fingerprints are taken of third-country nationals, with or without EU citizenship, these fingerprints should also be entered in the data records in ECRIS-TCN since they have been taken during criminal proceedings in the meaning of the Regulation. Fingerprints of convicted persons It is not sufficient that fingerprints taken during a preliminary in- vestigation, under the Act concerning Special Controls in respect of Aliens or transferred to via ECRIS can be added to the data records. That regime does not fully satisfy the requirement in the ECRIS-TCN Regulation that fingerprints of third-country nationals who have received a custodial sentence of at least six months have to be included in ECRIS-TCN. To ensure that this requirement is met, we have, in accordance with our terms of reference, given special consideration to the question of taking fingerprints of sentenced per- sons. We propose that fingerprints of sentenced persons should be taken irrespective of nationality, i.e. fingerprints should be taken of everyone who has received a custodial sentence of at least six months –and not just of third-country nationals. The purpose is to facilitate the investigation and prosecution of future offences by using finger- prints to identify persons who have been guilty of serious criminal activity. This purpose has equal force irrespective of the nationality of the convicted person. As set out in our terms of reference, fingerprints should be taken during the enforcement phase. For this reason we propose amend- ments to the Prison Act (2010:610) providing that as soon as pos- sible after enforcement of their sentence has begun in prison, the Swedish Prison and has to take fingerprints of the prisoner if they have to serve a custodial sentence of at least six months and are not already in the fingerprints register. If it is more suitable, the fingerprints may be taken by the Swedish Author- ity instead of the Swedish Prison and . It should be possible to take fingerprints again if there are special reasons. In practice, the taking of fingerprints in prisons will be governed by the extent to which the Swedish Prison and has access to the necessary equipment. As long as the equipment is not available at the Swedish Prison and , the finger- prints will have to be taken by the Swedish Authority after the Swedish Prison and has transported the prisoner to the nearest place where the Swedish Authority has that equipment. In many instances, however, the transport of prisoners is resource- consuming and associated with security risks. It is therefore impor- tant to steer developments so that the Swedish Prison and is able to take fingerprints in prison. For that reason we pro- pose that the Swedish Prison and should be given a commission, in collaboration with the Swedish Authority, to make an investigation in depth and propose which prisons should be supplied with equipment for taking fingerprints. In the case of a person who has received a custodial sentence of six months and is going to serve their sentence through intensive supervision with electronic control instead of in prison, we propose that one condition for the intensive supervision should be that the convicted person gives fingerprints. In these cases the fingerprints should be taken by the Swedish Authority following an order by the Swedish Prison and . Fingerprints that the Swedish Prison and has taken of a prisoner should be sent promptly to the Swedish Authority for processing in the Authority’s fingerprint register. The Swedish Prison and should immediately destroy any copies of the fingerprints held by the Service, as well as the biometric data taken from them, once the fingerprints have been received by the Swedish Authority. In accordance with our terms of reference, we present alternative statutory proposals to our proposal of taking fingerprints of a person who has received a custodial sentence of at least six months, irrespec- tive of their citizenship. These alternative proposals are framed on the basis of a strict implementation of the Regulation’s minimum requirement that there have to be fingerprints of the third-country nationals, without EU citizenship, who have received custodial sen- tences of at least six months. A hit in ECRIS-TCN will result in the Swedish Authority drawing up a request to access information about the registered person’s criminal history via ECRIS. To implement the Amending Directive, amendments are required to the national regulations implemented when the ECRIS Framework Decision was implemented. We therefore propose that a private indi- vidual who is or has been a third-country national or stateless person, or whose nationality is or has been unknown, should have the right to access the information about them in the criminal records in a that has been identified through ECRIS-TCN. When the ECRIS Framework Decision was implemented, it was also provided that the Swedish Authority has to obtain infor- mation that is available about a private individual who is a national of another from the criminal records in that State if the private individual requests information about themselves in criminal records. To implement the Amending Directive we propose that this regime should also apply if the private individual is a third-country national or stateless person, or has unknown nationality and the has been identified through ECRIS-TCN as a State holding information about convictions of the private individual. This should also apply to an EU citizen who is also a national of a third country. The identity information that the Swedish Authority accesses when a query results in a hit in ECRIS-TCN does not justify national regulations about secrecy and the maximum period for processing. The existing data protection and secrecy provisions are sufficient. do we consider that additional national regulations are re- quired to fulfil the Amending Directive’s requirement of informa- tion about nationality in criminal convictions. However, we have noticed that the information about nationality available to the courts is not complete. We therefore propose commissioning the , in collaboration with the Swedish Tax Agen- cy, to adapt and develop the information service that the Swedish Tax Agency provides for the courts so as to better meet the need there is for a more complete report of nationality in criminal convictions. As noted above, is not bound by the Amending Direc- tive. In our assessment, there is no need for further national regula- tions to ensure that ’s undertakings in relation to will continue to be met regarding the exchange of information through Penalties with no equivalent in The ECRIS Framework Decision means that information about penalties are transferred to and registered in criminal records even if the penalties have no equivalent in . Information about penalties that has been transferred via ECRIS has not been weeded according to the general weeding deadlines in Sections 16 and 17 of the Act when the penalty imposed does not have an equivalent in , and not when the penalty consists of a combination of such a penalty and a penalty that does have an equivalent in either. One consequence of this is that the information about the conviction will be retained in criminal records for 20 years if the convicting does not notify that weeding has taken place in that State. To ensure that penalties no part of which has a Swedish equiva- lent are handled in a more appropriate way, we propose amending the weeding provisions so that such information will always be weeded when the penalty has been enforced or otherwise no later than 10 years after the judgment or order that resulted in the information being entered in the records. This ensures that information about convictions no part of which has a Swedish equivalent does not remain in criminal records for longer than necessary in cases where a notification of weeding is not received from the convicting . In cases where the penalty entered in criminal records pursuant to the ECRIS Framework Decision consists of a combination of a penalty that has a Swedish equivalent and an additional penalty whose closest Swedish equivalent is a special legal consequence1, we make it clear that this information can be weeded pursuant to the general weeding deadlines in Sections 16 and 17. The Criminal Records Act contains provisions stating that weeding shall not follow the general weeding deadlines as long as there is some other record about the same person in criminal records, this is called “deferred weeding”. We propose that deferred weeding should also apply to informa- tion about convictions transferred via ECRIS, which have been exempted from this regime up to now.