AGIS PROJECT JAI/2003/AGIS/002 Feasibility Study on the creation of a database on investigations and prosecutions REPORT FOR SWEDEN

Transcription

1 AGIS PROJECT JAI/2003/AGIS/002 Feasibility Study on the creation of a database on investigations and prosecutions REPORT FOR SWEDEN by Dan Magnusson Swedish National Economic Crimes Bureau

2 Background: In Sweden, as well in other countries, there are different judicial procedures in which several participants are engaged. These procedures are characterised by sequentiality, like a chain. You can distinguish three kinds of chains in the Swedish judicial arena. The chain of criminal justice The chain of civil justice The chain of administrative justice This report deals only with the chain of criminal justice in Sweden. The chain consists of mainly three phases, or processes, which follow each other over time: 1. Investigation 2. Proceedings 3. Correction. Below follows a description of the chain of criminal justice in Sweden in detail, which I hope will make it easier to understand the answers to the questionnaire. All phases are not compulsory. Some of them can also occur simultaneously as regards the above mentioned three phases, e.g. On-the-spot.fine. 401

3 Actvity Responsible authority Performer Immediate legal action The Police Dept. Traffic Police =On-the-spot-fine (1) Patrolling Police Community Police Notification The Police Dept. (2) Any category Investigation of Crime (3) The Police Dept. Criminal Investigation Dept. Community Police Traffic Police Management of the The Police Dept. Commanding Officer Inquiry Commander of Investigation Investigation Officer The Office of the Prosecutor Public Prosecutor Management of the The Police Dept. Commander of Investigation Search Search Officer Apprehension of The Police Dept. Any category suspect Release of suspect The Police Dept. Commanding Officer Investigation Officer The Office of the Prosecutor on duty Public Prosecutor 402

4 Arresting, including The Office of the Any category detention order Public Prosecutor Detention proceedings The Police Dept Any category The correctional Custody Administration Transportation services The Office of the Prosecutor Public Prosecutor The District Court Judge + Recording Clerk Personal case study The Correctional Probation agency Administration Handing-over to the The Local Social welfare unit Social Services Government Decision regarding The Office of the Prosecutor prosecution (4) Public Prosecutor Preliminaries in court (5) The District Court Any category Main court proceedings The District Court Judge + Recording Clerk + Lay Assessors The Office of the Prosecutor Public Prosecutor The Correctional Custody Administration Transportation services Appeal The District Court Any category Preliminaries in The Court of Appeal Any category Court 403

5 Main court proceedings The Court ofappeal Judge + Recording Clerk + Lay Assessors The Office of the Prosecutor Public Prosecutor The Correctional Custody Administration Transportation services Payment of Fine The District Court, or Judge + Administrative The Court of Appeal staff The National Police Board Administrative Officer Monitoring and The National Police Board Administrative Officer collection of fines Enforcement Service Enforcement Officer Agency Carrying out of The Correctional Custody punishment Administration Transportation Prison Probation agency National Board of Special Institution for Institutional Care Youth Psychiatric care The County Council Psychiatric clinic With specific assessment regarding discharge 404

6 Source: Brottmålskedjan - i Sverige och andra länder Kartläggning och analys, Riksrevisionsverket RRV 1999:30. (1) Including fines administered afterwards at the police station. (2) Some crimes are also reported directly to public prosecutors or customs officers. (3) The investigation of a crime can be made in different ways: as an inquiry, as a simplified investigation etc. Investigations of crime also include steps taken by the Police before the formal initiation of the inquiry, e.g. pre-search, far-reaching initial measures etc. (4) Including legal proceedings, such as summary fines by prosecutor, and application for summons to the court. (5) Writ of summons, legal analysis of the case at hand, setting time for the trial etc. My own answers to the questionnaire: 1. Does your country have a database for investigations? Is it central or regional? Do these databases include exclusively criminal investigations or do they also include administrative/other investigations? What is their legal basis (statutory or other) Please analyse and attach the introducing legal texts as amended (In English or the original language of publication). 2. Is there a database for prosecutions in your country? Is it central or regional? Do these databases include exclusively criminal prosecutions. What is their legal basis (statutory or other) Please analyse and attach the introducing legal texts as amended (In English or the original language of publication). I will answer the first two questions by presenting a simplified model of the chain of criminal justice where I mark out the databases and registers which are relevant for the AGIS questionnaire. 405

7 The chain of criminal Justice: A crime is committed The crime is detected and reported to the Police. Some crimes are also reported directly to public prosecutors or customs officers, but these crimes are reported back and notified by the Police. The Police has a database which is called the RAR system. RAR means Rational Reporting Routine (Rationell Anmälan Rutin) and is a system for handling reported offences. RAR is the crime diary of the Police authorities. RAR is not a national system. In Sweden there are 21 regional police authorities and each of them has their own RAR diary. RAR is regulated in Polisdatalag 1998:622. See Appendix 1. An investigation starts. When the investigation starts another system is used to document everything that happens during the investigation of a crime. The system is called DurTvå (Datoriserad utredningsrutin med Tvångsmedelsdokumentation). In Dur Två an electronic investigation (pre-trial investigation) act is set up. DurTvå is a regional system with more than officials within the police authorities using it. DurTvå is regulated in Rikspolistyrelsens förafattningssamling, RPSFS 1999:7, FAP 400-2, Rikspolisstyrelsens föreskrifter och allmänna råd om den datoriserade rutinen för förundersökning och tvångsmedelshantering (DurTvå). See Appendix 2. As soon as the police finds a person who is suspected of the crime under investigation this person is reported to a national register, Misstankeregistret (MR). In the MR register you can locate all regional investigations that are going on in the DurTVÅ system concerning a specific person. The MR register is regulated in Lag (1998:621) om misstankeregister ( Law about register of persons suspected of crime) See Appendix 3. The Customs Authorities also report to the MR register. 406

8 The investigation is finally documented in a protocol which serves as basis for the prosecutor s decision to prosecute or not. Decision to prosecute. The Public prosecutor has a database that is called BRÅDIS. BRÅDIS is statutory regulated in Förordningen (1987:847) med instruktion för Riksåklagaren and this statute gives legal authority to a more detailed regulation in Riksåklagarens föreskrifter om diarieföring vid åklagarmyndigheterna (Råfs 2000:4). (Public Prosecutor s directions about registration at prosecuting authorities). See Appendix 4. BRÅDIS consists of four registers (diaries): Crime diary Diary of using compulsary methods such as secret wire-tapping Security diary about questions concerning the security of the state General diary for all other items There are eight regional BRÅDIS databases. As soon as a person is prosecuted this will be reported to the central MR register. Through the MR register it is possible to trace a person in all eight regional BRÅDIS databases. Main court proceedings As soon as the court has made its judgement and if it is a verdict of guilty, the sentence will be reported to Belastningsregistret (BR), which is a register of persons found guilty of crime. BR is regulated in Lag (1998:62) om belastningsregister ( Law about register of persons found guilty of crime). See Appendix 5. The Swedish Economic Crimes Bureau 407

9 In Sweden we have a special authority handling economic crimes, The Swedish Economic Crimes Bureau (Ekobrottsmyndigheten, EBM). The Bureau s approximately 400 personnel and associates comprise mainly of prosecutors, police officers, economic investigators and administrative staff who are jointly responsible for the Bureau s operational duties, that is, detecting and impeding crime, investigating offences and taking legal proceedings against criminals. EBM is part of the Swedish public prosecution system. EBM s operational area primarily concerns dishonesty to creditors and tax crime as well as infringements of the Insider Penal Act and crime against the financial interests of the EU. EBM also handles other cases like serious fraud, serious embezzlement and swindles which require special knowledge of financial conditions, business circumstances and tax legislation. EBM is active mainly in Sweden s metropolitan regions; Stockholm County, Gotland County, Västra Götaland County, Halland County, Skåne County and Blekinge County. More than half of the population of Sweden lives in these areas. Outside these areas economic crimes are handled by the ordinary police and ordinary prosecutors. The police at EBM is not using Dur Två for their investigations. They are using the BRÅDIS database to register their seperate investigations which all are contained in the same server. 3. Which national, EU or international authorities have access to the databases? If such databases do not exist, who has access to information on investigations and prosecutions? It is only the police who have access to the regional investigation database DurTvå. It is only the prosecuting authorities and Economic Crimes Bureau who have access to the database for prosecutions, BRÅDIS. The following authorities can get information from the central register of persons suspected of crime, the MR register: 408

10 Swedish authorities: 1. Police, Tax authorities, Customs authorities, prosecuting authorities and the courts. The Government may prescribe that the above mentioned authorities may have direct access to the MR register. 2. A public authority for some special cases prescribed by the Government or in a special case after admittance of the Government. International authorities: Information can be given to a foreign authority or an international organisation if it is in accordance with an agreement that Sweden has ratified after the decision of the Swedish Parliament. Information can be given to police or prosecutor in a state which is member of Interpol or to Interpol directly. The government can prescribe that information can be given to police, prosecutor and court in other states than mentioned above if it is needed for a criminal investigation and also in other special cases. It is almost the same rules for getting information from the central register of persons found guilty of crime, the BR register. 4. At which procedural stage are data introduced to the database (for example. At police/law enforcement investigation, launch of formal prosecution, or trial)? - When a crime is reported to the police it is notified in the RAR diary. - When investigation is started it is introduced to DurTvå. - When a person suspected of crime is identified it is reported to the MR register (Misstankeregistret). 409

11 - When the investigation is started it is also registered in the prosecutors diary BRÅDIS. - When the court has made a judgement and found a person guilty of crime it is reported to the so called BR register (Brottsbelastningsregistret). 5. At which procedural stage are data erased for the databases? In the MR register data shall be erased: If an investigation has been finished without prosecution If prosecution has been withdrawn When the court has made its decision When a case of extradition is decided In the BR register data shall be erased mainly according the following rules: If a court of appeal has made a verdict of acquittal A verdict of prison is erased 10 years after release (liberation) All other verdicts with a sanction which means that a person is compulsory locked in are erased ten years after release Fines 5 years after judgement or order of summary punishment In BRÅDIS data shall be erased 3 years after final judgement of a court. 6. What is the purpose of the databases as described in their founding instruments? What is there use in practice? 410

12 The purpose of MR is to facilitate access to such information about persons suspected of crime which are needed in the activities of: 1. police, tax and customs authorities to coordinate investigations against a person and to prevent, detect and investigate crimes 2. prosecution authorities to decide about pre-trial investigation and prosecution 3. police and other authorities to decide in matters of aptitude or permission. The purpose of BR is to give information about such verdicts that are needed in the activities of: 1. police, tax and customs authorities to prevent, detect and investigate crimes 2. prosecution authorities to decide about pre-trial investigation and prosecution and give order of summary punishment 3. the courts in sentencing 4. police and other authorities to decide in matters of aptitude or permission. The purpose of RAR is to register crimes The purpose of BRÅDIS is to register the prosecutors activites. The purpose of DurTvå is to register what happens during an investigation. In Dur Två an electronic investigation (pre-trial investigation) act is set up. 7. Is there collaboration with foreign authorities for the acquisition of data on investigations and prosecutions (please refer to Europol/Eurojust)? Which authorities have access to this data. All authorities involved in combating or preventing crime are collaborating with authorities in other countries. The Swedish prosecuting authorities are cooperating with Eurojust. The Swedish police is cooperating with Europol. The Swedish authorities also cooperate directly in investigations with both central and local authorities within EU. Contacts with authorities in countries outside EU are normally handled via the Foreign 411

13 Office. Between some states there are bilateral agreements that make direct contacts between authorities possible. 8. What provision is made in your national laws for data sharing between public bodies? What are the relevant restrictions? In Sweden there is a very detailed and restrictive legislation about secrecy, Sekretesslagen (1980:100). See Appendix 6. There are detailed special regulations to every database. The main principle is however that it is possible for the investigative authority to get information from other databases as soon a formal investigation (pre-trial invetigation) has started. Before that it is in principle not possible to get information from databases outside the own agency. 9. Are there national general principles of law and privacy laws which prohibit either the creation of national databases on investigations and prosecutions or the use of such data? Please describe and attach these laws. No. 10. Is there any exemption to these laws, for example on the basis of the general public interest to combat crime? Could such an exemption supersede national privacy laws. See answer to the question above. 412

14 11. In view of measure 12 of the mutual recognition programme (OJ C 12, , p.10), would linking national databases be an effective weapon against transnational crime or would an EU database on investigations and prosecutions from all EU Member States be preferable? What added value for your national authorities do you see in the setting up of a EU judicial database as foreseen in Eurojust and, if there are any, what would be the current legal difficulties to be upheld in your country for the connection to such a data bank? I think it would be of great value if an EU database on investigations and prosecutions could be created. Today it takes such a long time to get information from authorities in foreign countries and due to scarce resources of the foreign authorities you can t expect them to answer more than a limited number of questions. The system today is very ineffective. It would not be possible to link Swedish databases to such a central database according to current legislation. 12. Could the EU establish a database for investigations and prosecutions that includes relevant data on EU citizens, supervised by a judicial/ quasi judicial authority be acceptable to your national legal orders? What problems, if any, would you foresee and how could they be resolved. The Swedish legal system doesn t allow such an order. Establishing such a database presupposes changes in the legal order. 13. Could the EU database supply data to be accepted and used as indirect information or evidence before national courts, or would your national laws 413

15 limit its use to the support of investigations and prosecutions via the provision of soft intelligence? If the changes in law were done it would be possible use data as indirect information or evidence before national courts. 14. Which crimes could be included in the EU database for investigations and prosecutions? Could it extend past the limited crimes included in the Europol/Eurojust mandate? I think that it could be practical if all crimes which in the national legal systems can render prison for one year or more would be reported to a central European database. 15. What safeguards could ensure that the transfer of data from your national authorities to the database does not clash your national law? Very profound changes in the legislation are needed. 16. Which national authority within your jurisdiction could undertake the task of transferring the relevant data of the EU database? The National Police Board. 414

16 17. Which national/eu persons may have access to the EU database: judicial, prosecution, police? Prosecutors and policemen. 18. Which EU agency could be a suitable host for the EU database? Could Eurojust (pursuant to Article 14 of Eurojust Decision) establish a database for investigations and prosecutions that includes relevant data on EU citizens, supervised by a judicial/quasi judicial authority be acceptable to your national legal orders? What problems, if any, would you foresee and how could they be resolved? Eurojust would be most convenient. As I said before, the Swedish legal system doesn t allow such an order. Establishing such a database presupposes changes in the legal order. 19. In view of the free movement of persons within the EU and the increase in crime, would such a database constitute an effective weapon against crime? Yes, I think so. 20. Do you foresee political opposition, in your country, to move for the creation of such a database either by political parties and by human rights groups? 415

17 I think there would be a strong political resistance. I don t have any opinion about the human rights groups. 21. Is crime seen as a serious problem, by media and the public, in your country? Justify your opinion by reference to interviews with representatives of the main political parties (a telephone call to their headquarters is adequate). I have spoken with representatives of the Swedish political parties. In order to explain the question I have asked them to place crime as a problem in the society in order of preference according a scale from 1 to 10. Ten (10) is considered to be the most serious degree, i.e. crime is one of the most serious problems. The Christian Democrats (Lennart Berg, Phone ): Rather serious problem- 7. The Swedish Conservative Party (Håkan Filipsson, Phone ): One of the three main problems- 9. The Center Party (Inger Lindman, Phone ): Most important- 10. The Green Party (Leif Björnlod, Phone ): Very important 8-9. The Left Wing Party (Josefin Brink, Phone ): Important but difficult to answer the question. The Liberal Party (Monika Björklund, Phone ): Most important 10. The Social Democrats (K-G Westlund Phone ): Very important 8. 22: Is there a move in your country towards reduction of police powers and the promotion of the rehabilition of ex-offenders? Answer. 416

18 The police powers in Sweden have mean diminishing during the last decade. A lot of resources are dedicated to rehabilitating ex-offenders. Interview with Senior detective inspector Mikael Nyhlén, Computer Crime unit, The Swedish National Economic Crimes Bureau Monday 3rd May at the Development Unit at the Staff of Economic Crimes Bureau, Hantverkargatan 15, Stockholm. 1. Does your country have a database for investigations? Is it central or regional? Do these databases include exclusively criminal investigations or do they also include administrative/other investigations?what is their legal basis (statutory or other) Please analyse and attach the introducing legal texts as amended ( In English or the original language of publication). Yes, Sweden has regional databases for investigations at each police authority (there are 21 police authorities/districts) called DurTvå. DurTvå includes exclusively criminal investigations. DurTvå is regulated in a special legislation. As soon as the investigator finds a person suspect of crime under investigation, he reports that to the MR register, which is a central, national register of persons suspected of crime. The Police also has the so called RAR system. RAR means Rational Reporting Routine (Rationell Anmälan Rutin) and is a system for handling reported offences. RAR is the crime diary of the Police authorities. 417

19 2. Is there a database for prosecutions in your country? Is it central or regional? Do these databases include exclusively criminal prosecutions. What is their legal basis (statutory or other) Please analyse and attach the introducing legal texts as amended ( In English or the original language of publication). Yes, Sweden has regional databases for prosecutions, called BRÅDIS. There are seven regional BRÅDIS databases. As soon as a person is prosecuted this will be reported to the central MR register. The prosecutor has no admittance to the police investigation database DurTvå. The prosecutor gets a paper investigation protocol from the police when the pre-trial investigation is finished. In Sweden we have a special prosecuting authority for economic crimes, The Swedish National Economic Crimes Bureau. That authority uses the same database system, BRÅDIS, as the other seven prosecution authorities. 3. Which national, EU or international authorities have access to the databases? If such databases do not exist, who has access to information on investigations and prosecutions? It is only the police who has access to the regional investigation database DurTvå and it is only the prosecuting authorities who have access to the database for prosecutions, BRÅDIS. 418

20 A lot of authorities can get information from the central register of persons suspected of crime, the MR register and from the BR register. It is regulated in detail in the legal statutes. 4. At which procedural stage are data introduced to the database (for example. At police/law enforcement investigation, launch of formal prosecution, or trial)? As soon as a crime is reported to the authorities respectively data are introduced to the databases. 5. At which procedural stage are data erased for the databases? There are detailed legal prescriptions for all the databases when data shall be erased. In BRÅDIS for example data are erased 3 years after final judgement of a court. Data in the MR register are erased after a final judgement of the court. 6. What is the purpose of the databases as described in their founding instruments? What is there use in practice? I suppose you will quote the statutes yourself. Of course in practice you are using the different databases all the time. During the last decades the crime rate has increased very much. I suppose it would be a disaster for our efforts to combat crime without the databases. 419

21 7. Is there collaboration with foreign authorities for the acquisition of data on investigations and prosecutions (please refer to Europol/Eurojust)? Which authorities have access to this data. The police, the Public prosecutor, The Customs authority are all the time asking foreign counterparts for information, either directly if it is a Member State or via the Foreign Office if it is a state outside the EU. 8. What provision is made in your national laws for data sharing between public bodies? What are the relevant restrictions? Mainly the secrecy legislation. 9. Are there national general principles of law and privacy laws which prohibit either the creation of national databases on investigations and prosecutions or the use of such data? Please describe and attach these laws. No. 10. Is there any exemption to these laws, for example on the basis of the general public interest to combat crime? Could such an exemption supersede national privacy laws. 420

22 See answer on the question above. 11. In view of measure 12 of the mutual recognition programme (OJ C 12, , p.10), would linking national databases be an effective weapon against transnational crime or would an EU database on investigations and prosecutions from all EU Member States be preferable? What added value for your national authorities do you see in the setting up of a EU judicial database as foreseen in Eurojust and, if there are any, what would be the current legal difficulties to be upheld in your country for the connection to such a data bank? I think it would be problems to link Swedish databases in that way. In Sweden we register suspicions on a very low level and very many people get free from suspicion or there are not evidence enough to prosecute. The principle of integrity of the individuals is against it. 12. Could the EU establish a database for investigations and prosecutions that includes relevant data on EU citizens, supervised by a judicial/ quasi judicial authority be acceptable to your national legal orders? What problems, if any, would you foresee and how could they be resolved. The Swedish legal system is against it. 13. Could the EU database supply data to be accepted and used as indirect information or evidence before national courts, or would your national laws 421

23 limit its use to the support of investigations and prosecutions via the provision of soft intelligence? If the changes in law were done it would be possible. 14. Which crimes could be included in the EU database for investigations and prosecutions? Could it extend past the limited crimes included in the Europol/Eurojust mandate? Terrorism, money laundering, stolen cars, trafficking, narcotic crimes and crossborder tax crimes. 15. What safeguards could ensure that the transfer of data from your national authorities to the database does not clash your national law? Changes in legislation are needed. 16. Which national authority within your jurisdiction could undertake the task of tranferring the relevant data of the EU database? The National Police Board. 422

24 17. Which national/eu persons may have access to the EU database: judicial, prosecution, police? Prosecutors and policemen. 18. Which EU agency could be a suitable host for the EU database? Could Eurojust (pursuant to Article 14 of Eurojust Decision) establish a database for investigations and prosecutions that includes relevant data on EU citizens, supervised by a judicial/quasi judicial authority be acceptable to your national legal orders? What problems, if any, would you foresee and how could they be resolved? Eurojust. Changes in the legal system are needed. 19. In view of the free movement of persons within the EU and the increase in crime, would such a database constitute an effective weapon against crime? the EU. I don t think it would be an effective weapon. There is no border control within 20. Do you foresee political opposition, in your country, to move for the creation of such a database either by political parties and by human rights groups? 423

25 Yes, strong opposition of both. 21. Is crime seen as a serious problem, by media and the public, in your country? Justify your opinion by reference to interviews with representatives of the main political parties (a telephone call to their headquarters is adequate). Crime is seen as a serious problem by media and the public. 22: Is there a move in your country towards reduction of police powers and the promotion of the rehabilitation of ex-offenders? Answer. Yes on both questions. Interview with Chief Prosecutor Bodil Borison, The Swedish National Economic Crimes Bureau, Thursday 13th May at the Development Unit at the Staff of Economic Crimes Bureau, Hantverkargatan 15, Stockholm. 1. Does your country have a database for investigations? Is it central or regional? Do these databases include exclusively criminal investigations or do they also include administrative/other investigations? What is their legal basis (statutory or other) Please analyse and attach the introducing legal texts as amended (in English or the original language of publication). 424