Response to interpellation 2023/24:79 on compensatory measures for privacy linked to secret coercive measures
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
M considers that law enforcement authorities need powerful tools against serious crime 1. M argues that the use of secret coercive measures occurs in a legally secure order with judicial review and supervision 1 2. M considers that increased documentation requirements provide the individual with a better basis to assess reasonableness 2 3. M argues that the main rule is that the individual shall be notified in retrospect 3 4. MP considers that there is a conflict of objectives between privacy and the state's powers 5. MP argues that a citizen who has proven to be innocent should have the right to know that they have been subject to secret coercive measures 6. MP considers that there is no proven order for the new regulatory framework 7.
Written by AI in advance and may contain errors. The numbers lead to the speech a statement builds on; check against the text below.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! Rasmus Ling has asked me if the government will produce new regulations for how documentation of the use of secret coercive measures shall be carried out. He has also asked if I and the government will take any measures so that more persons who have been subjected to secret coercive measures will find out in retrospect, even in the case that a long time has passed since it occurred. He has also asked if the government is prepared to develop the annual report submitted to the Riksdag regarding secret coercive measures to also include other privacy infringements. Finally, he has asked if the government is prepared to review the possibility of reducing the scope for which service errors can be considered minor, and are therefore exempt from punishment, when it is a matter of the use of secret coercive measures.
It is of the utmost importance to reverse the serious development regarding crime and gang crime in Sweden. In that work, it is required, among other things, that the law enforcement authorities have access to powerful and effective tools.
Since October 1 of this year, preventive coercive measures may be used in more cases in order to prevent particularly serious crime. The possibilities to use secret coercive measures to investigate serious crimes when there is a concrete suspicion of a crime were also expanded. At the same time, legal certainty was strengthened through, among other things, clearer requirements for documentation of the use of secret coercive measures.
The rules on secret coercive measures need to live up to high standards of legal certainty. We therefore have requirements for judicial review and public counsel who monitor individuals' privacy interests. The Security and Integrity Protection Board exercises supervision over the use. There are also rules regarding notifications to individuals who have been subject to secret coercive measures. In addition, there is the government's annual report to the Riksdag, where the use of the coercive measures is reported.
The new rules on documentation have just entered into force. The application may demonstrate if there is a need for additional or changed rules regarding this. Regarding the possibility for persons to find out in retrospect whether they have been subject to secret coercive measures, it can be mentioned that proposals for changed rules on intelligence have been submitted in the report Better opportunities to execute detentions. A draft for a Government Offices referral based on the report was referred on October 25 this year.
At the current moment, no work is being undertaken to change the agency mandates that govern what material is available for the government's directive on secret coercive measures. However, there may be reasons to consider what the directive should contain as the regulations on secret coercive measures change.
Public activities shall be conducted in a responsible and correct manner. It is important that there is an effective system for accountability when errors are committed in the line of duty. The Government therefore intends to appoint an inquiry which shall, among other things, review the responsibility for service errors. The question of expanding the criminal scope for service errors is a question that will be addressed within the framework of the inquiry.
It is important, finally, that individuals' personal privacy is protected. At the same time, our law enforcement authorities must have effective and powerful tools to combat serious crime and criminal networks. The Government will continue to work focusedly to reverse the development.
Rasmus Ling (MP)
Madam Speaker! I would like to begin by thanking Gunnar Strömmer very much for the answer. The last thing that emerged, that it is important to protect personal integrity while simultaneously being able to combat crime with force, is what is central.
There is somewhere a conflict of objectives between privacy and the state's powers to solve many of the crimes, at least when it concerns the coercive measures we are talking about. Exactly where the intersection should be between privacy and powers is partly a political question, but it is also a question where where one ends up depends on circumstances both in the world at large and in Sweden. There has been a shift for all parties, both Miljöpartiet and Moderaterna and all others in Sweden's Riksdag, in the direction of more powers than a number of years ago due to a changed situation in society.
We agree that gang crime is one of our greatest societal problems. For many, if not all, measures taken by previous and current governments, there is broad support. There was broad support for preventive coercive measures, which were introduced on October 1, a few weeks ago. Vänsterpartiet was against it, but otherwise, there was approval or, in the case of Miljöpartiet, in all material respects, approval.
When we have far-reaching powers that restrict privacy, it is important that we elected representatives and the government consider also taking measures to strengthen privacy. In this interpellation, I have given Gunnar Strömmer and the government a number of proposals, Madam Speaker. One of them concerns how intelligence is conducted and shall be conducted toward persons who have become subjects of the use of coercive measures.
There are high rule-of-law requirements, says Gunnar Strömmer. And that is the case. There are requirements for judicial review. But the question is what happens in those situations where it fails, when the regulatory framework is not followed. Prosecutors and police officers are human beings, just like justice ministers and members of parliament. People can make mistakes. But how should we view those situations where mistakes have been made and where it also turns out that persons who have been subjected to secret coercive measures are innocent?
In the legal guidance from the Prosecution Authority, it is stated that it is "important to note that the obligation to notify does not apply to all persons who have in some way been affected by a secret coercive measure. The circle of persons entitled to notification is limited to suspects and holders of such places and electronic addresses as the measure was directed against."
A concrete question for Gunnar Strömmer is whether the government can be prepared to review the circle of persons entitled to intelligence, so that more who have been subjected to it and are innocent actually find out in retrospect.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! Thank you, Rasmus Ling, for the opportunity to discuss these important issues today!
I begin by echoing Rasmus Ling's reflection regarding the fundamental trade-offs we have to manage between, on one hand, effective crime fighting and, on the other hand, personal privacy. There is no doubt whatsoever that not least secret coercive measures are very intrusive tools. But they are, of course, justified by the interest that underlies their use, namely effective crime fighting, particularly when it concerns very serious crime, which is an important public interest. It outweighs the opposing interest of safeguarding personal privacy.
I also think that one can broaden the perspective regarding personal privacy. A 24-year-old woman is murdered by an explosive charge in her terraced house while she is sleeping at night; it is difficult to imagine a more ultimate violation of personal privacy.
We thus have both effective crime fighting and the privacy interests of crime victims in one scale, and then, of course, the other legitimate privacy interests concerning those who become subjects of, for example, the use of secret surveillance or whatever it may be. There is no doubt whatsoever that societal development means that the interest of effective crime fighting and the privacy interest of crime victims are now given a relatively greater weight. I welcome that it is possible to obtain broad support for this shift here in the chamber.
Sometimes one hears some sloppy, I think at least, or shallow objections on the theme that we have now moved out onto some kind of slippery slope. I want to emphasize that that is really not the case. Sweden is a well-functioning democratic state governed by the rule of law. When it comes to the use of coercive measures specifically, there is a very well-established and legally secure order for it.
As has been said, a prosecutor cannot simply make up that they want to use coercive measures, but must go to court and have it judicially reviewed. In the judicial review, there are lawyers who are specifically appointed to monitor privacy interests. There is an oversight that takes place afterwards by the Security and Integrity Protection Board, and there is the report that the government submits to the Riksdag every year and which Rasmus Ling brings up. There, one gets the overall picture of the use of coercive measures, that is to say checks and balances, the handling of the concrete case but also the review of the whole.
Our starting point is that we give the police and prosecutors greater opportunities to use secret coercive measures also to prevent and preclude crime. In practice, we are opening up the toolbox that until now has been open for the Security Service's work against terrorism and espionage to also be used by police and prosecutors against criminal networks and serious organized crime. It is undoubtedly a shift in the direction of effective crime fighting, but it occurs in a legally secure order.
Regarding the concrete issues that Rasmus Ling raises, we are also doing things in connection with this to further strengthen the possibilities for the individual to have their case highlighted in an appropriate way, not least by us setting higher requirements for documentation in connection with the use of coercive measures. It is also so that the individual, in retrospect, can be able to obtain a basis to see if they have been handled in a way that is reasonable and just, in a better way than today.
The oversight issue is important. Right now, we have not given the authority additional assignments to change the underlying data for the communication that goes to the Riksdag. But I am prepared to continuously consider whether further things need to be done. Now we shall see if the new tools we are implementing work before we make new assessments in that part.
Rasmus Ling (MP)
Madam Speaker! The Minister spoke at length and much but did not answer the question regarding the circle of persons. I would very much like to receive an answer to that in the next statement. Is one prepared to expand the circle of persons entitled to intelligence?
Madam Speaker! It is a positive approach regarding the development of the memorandum on secret coercive measures. Even if there are no clear promises, the door is in any case not closed. It is a good first step. In the opinion of the Miljöpartiet, there is reason to develop this in situations where the state needs more tools and muscles. If we accept more surveillance, we also need to focus on the other side of the coin. I look forward to it being developed in the memorandum at some point and will follow it.
Madam Speaker! I return to the question of persons who have been subject to the use of coercive measures but who turn out to be innocent. In the report that the Minister for Justice refers to, Better opportunities to execute deprivation of liberty, the regulatory framework is set out. If, due to confidentiality barriers, it is not possible to inform a person that they have been subjected to secret coercive measures, the duty to inform expires one year after the preliminary investigation has been concluded if it is still subject to confidentiality. It is proposed to extend this to one and a half years after the use has been concluded. It is an extension, but still a fairly short time.
I do not agree with the assessment that the interest in knowing that one has been subjected to secret coercive measures would diminish in such a way in hindsight. I see, on the contrary, a great and even principled value in that, in those cases where the state has subjected a citizen to secret coercive measures and especially in those cases where one has been shown to be innocent, one should have the right to find out at some point, even if a long time has passed. Even if it is because of secrecy barriers, that the police should not disclose it and should not tell how it went about, or because one cannot find out, there is still a value in finding out, even if a significantly longer time than one and a half years has passed.
Doesn't the Minister for Justice also think there is a value in finding out, even if there are secrecy barriers for a time so that it takes longer?
Justitieministern Gunnar Strömmer (M)
Madam Speaker! Let us first discuss more closely the issue of the circle of persons entitled to notification, i.e., who shall have the right to be notified that they have been subject to secret coercive measures. We have no proposals or any processes underway regarding changing that circle. The starting point in the legislation is to notify the circle that is considered affected. It must naturally be defined more precisely, but it is still not an entirely restrictive assessment of who is affected. Already today, it is the case that the person affected by the use of coercive measures shall also receive notification of this.
On the other hand, we have looked at issues aimed at providing a better basis for the individual concerned to assess their situation. That is where, among other things, the increased requirements for documentation come into the picture. They were introduced to try to achieve better quality and a better overview for the individual in connection with being informed about this and, in retrospect, wanting to see if it was reasonable and sensible in the use of coercive measures of which they have been subjected to. In our legislative cases, we have underlined the need to obtain even better documentation, for the benefit of the individual.
When it comes to the question of the legitimate interest, that a certain amount of time has passed and so on, I can absolutely agree that there is a legitimate interest. Then it must be weighed against the opposing confidentiality interests. Even if in different cases there may be investigation secrecy or other confidentiality interests that mean the information is not shared with the individual, the prosecutor may not keep it to themselves. In that situation, the information shall be submitted to the Swedish Authority for Privacy Protection so that supervision can be carried out to guarantee transparency and oversight in the use of coercive measures regarding individuals. It can be exercised by the individual themselves and/or by the supervisory authority.
There will be cases where individuals who would have liked to have information do not receive it, because there are conflicting interests that carry more weight. At the same time, I want to emphasize that this does not mean that those cases remain unexamined. They are, of course, scrutinized in connection with the supervision carried out by the supervisory authority.
My perception is that, overall, we have a balanced and well-tested order. It includes an extensive possibility for those concerned to receive information in retrospect that they have been subject to the use of coercive measures.
I also want to say that when we now expand the scope of secret coercive measures, for example by making it possible for the police and prosecutors to use them preventively against criminal networks, we have included a kind of five-year limit in the legislation. During the five years that these rules are now to apply, a proper evaluation of the use in all dimensions shall also be carried out, including those that Rasmus Ling is raising today.
I want to emphasize that I am open to changes, but I would prefer to see how existing regulations are used in practice before we draw all too far-reaching conclusions about the future.
Rasmus Ling (MP)
Madam Speaker! That we have a proven procedure applies to the regulatory framework we have had. For the new regulatory framework, there is no proven procedure because it has only been a few weeks since it entered into force.
I would like to take the opportunity to say something about the cases where coercive measures have been used but where, due to secrecy, they cannot be disclosed to the individual. Those cases are handed over to the Security and Integrity Protection Authority. Their review concerns whether it was right or not to allow coercive measures to be used. It can very well concern situations where it was a correct decision by the court to allow it, but where it nevertheless turned out that the person who was subjected to it was completely blameless and innocent. In those cases, if secrecy exists, there is no possibility of finding out in hindsight. I mean, Madam Speaker, that it is wrong. I think that the Minister for Justice should share that view.
It is also the case that if secrecy still applies after one and a half years, the case disappears from the system. I do not think that is a good arrangement. I think it should be extended. I have great respect for the secrecy barriers; they must be taken most seriously. We should not have a system where the police's methods are cleared in a way that impairs crime fighting. But let us say that 10 or 15 years have passed - at some point I, as an individual, should have the right to find out that the state monitored me during a certain period of time and that I was innocent. Finding out that is a vindication, and Gunnar Strömmer usually highlights the need for innocent people who were targeted to receive vindication.
Justitieministern Gunnar Strömmer (M)
Madam Speaker! I thank Rasmus Ling once again for the opportunity to discuss these important issues today. Let me just say that the starting point in the legislation is that the main rule is that the individual shall be informed. We do not, therefore, have an order based on that people should not be informed if they have been subjected to the use of secret coercive measures. The starting point is on the contrary that the person who has been affected should be informed as far as possible about the use of coercive measures in retrospect. It is an important value, and our legislation is already based on it today.
There are conflicting confidentiality interests. It is already included in the concepts of secret coercive measures and preliminary investigation confidentiality. There is a conflicting confidentiality interest that concerns protecting the interest that fundamentally justifies the use of secret coercive measures. It also means that situations can arise where, even in hindsight, it is considered inappropriate for various reasons to inform the individual. That information does not therefore remain with the prosecutor but is handed over to the Swedish Authority for Privacy Protection for a control that is in itself not insignificant as to whether it was right or wrong to deploy the coercive measure. One must still say that it is a rather fundamental question in this context.
I mean that, overall, we have a rule-of-law order given the opposing interests we have to manage. With that said, I am therefore open to seeing over time if additional rule-of-law guarantees are required. An important point that is now being added to the legislation is, as mentioned, more far-reaching requirements for the authorities that handle coercive measures to establish documentation so that either the individual or the supervisory authority shall have proper grounds for their review.
I also want to say that there is a proven procedure even though this expansion took place on October 1, because it is an expansion of a proven procedure that is used today when it comes to terrorists and spies but which is now also to be used against criminal networks.
I want to emphasize an openness to continuously assess whether we need to further strengthen legal certainty in various respects, but I also want to emphasize that I feel fundamentally secure that we are using a very legally sound and proven model when it comes to the use of secret coercive measures.
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.