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Supreme court decision 11 May 2015 (dissenting opinion)

Case Ö 5880-14
announced in Stockholm 11 May 2015

Representative: Attorney TO
Representative: Attorney PES

Box 5553
114 85 Stockholm


Decision of Svea Court of Appeal 2014-11-20, case Ö 8290-14



The Supreme Court rejects the appeal.


JA has requested that the Supreme Court rescind the detention decision.

JA has also requested that the Supreme Court task the prosecutor with giving him, or giving the Supreme Court, copies of the claimants’ SMS traffic. In the case that the Supreme Court not consider the request, he has secondly requested that the Supreme Court obtain a preliminary judgment from the European Court in regard to Article 7 of the directive of the European Parliament and Council 2012/13/EU 22 May 2012 if the right to information in criminal procedures includes the duty of the prosecutor to turn over copies of the materials shared by the suspect and intended by the suspect to be used as support for a challenge of a decision on deprivation of liberty.

The Prosecutor-General opposes a change to the decision of the Court of Appeal.

The Supreme Court has previously rejected the motion that a preliminary ruling be obtained from the European Court. The Supreme Court has granted permission to appeal the matter of detention, but not granted permission for other appeals.


Background and the question before the Supreme Court

1. JA was detained in absentia 18 November 2010 because he was on probable cause suspected of unlawful coercion 13-14 August 2010 in Stockholm, of sexual molestation 13-14 August 2010 in Stockholm, of sexual molestation 18 August 2010 or thereabouts in Stockholm, and of lesser rape 17 August 2010 in Enköping. A European Arrest Warrant was expedited and finally ratified by British courts 14 June 2012.

2. Neither the detention decision nor the arrest warrant have been executed. As a result of the detention decision and arrest warrant, JA has been deprived of liberty in Great Britain 7-16 December 2010, and he has had restrictions in Great Britain in the form of electronic surveillance with an ankle bracelet, reporting daily to the police, and prohibited from leaving his place of residence at certain times of the day. JA has since 19 June 2010 been resident at the Ecuador embassy in London.

3. In June 2014 JA moved for the district court to hold a detention hearing and rescind the detention decision. The district court ruled that JA should even in the future be detained. JA appealed the decision of the district court. The court of appeal rejected his appeal. The question now is whether JA should still be detained.

Basic conditions for detention

4. Detention may apply for someone suspected on probable cause of a crime for which prison of at least one year is prescribed, if there exists, with regard to the nature of the crime, the suspect’s situation, or other circumstance, a risk that the suspect abscond or in some other way avoid legal process or sentence (chap 24 § 1 paragraph 1 trial code).

5. The Supreme Court shares the opinioin of the court of appeal that JA is, on probable cause, suspected of unlawful coercion, of two counts of sexual molestation, and of lesser rape, and that there is a risk that he would abscond or in some other way avoid legal process or sentence. The Supreme Course also agrees with the conclusion of the court of appeal that there is no legal hinder to execution which would warrant rescinding the detention decision.

Principle of proportionality

6. A further condition for detention is that the grounds for the decision weigh up against the intrusion or other harm that the measure would mean for the suspect or for any other corresponding matter (chap 24 § 1 paragraph 3 trial code).

7. The pertinent legal provision cites the so-called principle of proportionality. This means that a detention must be in reasonable proportion to what can be gained by the measure. As little coercion as possible is to be used to achieve the desired goal, and a coercive measure may only be used if the objective of the measure cannot be achieved by less intrusive measures. (See prop. 1988/89:124 p. 26 and 65 f.) Ultimately it is a question of weighing the public interest in investigating suspicions of crime in a secure fashion against the interests of the individual in not being deprived of liberty. It should especially be noted that the matter of guilt has not been determined.

8. In the matter of continued detention, there is relevance in how long the deprivation of liberty has been ongoing and for how much longer it can be expected to continue. The longer the deprivation of liberty, the stronger the reasons needed to continue the detention. Particularly with serious criminality this can be important if there have arisen difficulties in the investigation. The investigative authorities should also, with reasonable efficiency, try to make the detention’s duration as short as possible. If anything should be unclear in this regard, it is not the individual who should be burdened by it. (See NJA 2011 p. 518 para. 14–21, compare chap 24 § 18 third paragraph trial code.)

9. An assessment of proportionality shall also be conducted with a continuation of detention of a suspect who is not present in court. The weighing of the opposing interests must however take into consideration that the detention has not been capable of being executed. The opposing interests can therefore take on another mutual weight in such cases. Even outdoor deprivation can in practice lead to restrictions in the liberty of the individual, but typically an executed detention decision must be seen as significantly more intrusive (compare chap 24 § 7 third and fourth paragraphs trial code).

10. The suspect need not contribute to the investigation. The factual consequence of detentions that are not executed can be that the preliminary investigation in certain cases cannot be advanced in the same way. In the light of the requirement that the preliminary investigation be conducted effectively, the investigative authorities must consider what opportunities are available to move the case forward.

11. Particularly with extended detentions which have not been executed, there is reason to consider whether the measure is effective (compare Per Olof Ekelöf et al., Rättegång III, 7th edition 2006 p. 48).

12. There is, in this context, reason to also refer to the provisions in chap 23 § 4 of the trial code. This means, inter alia, that no one should unnecessarily be inflicted by costs or inconveniences for the sake of the preliminary investigation, and that the preliminary investigation shall be conducted as quickly as circumstances allow. It can thereby be appropriate to assess, for example, whether interrogations with the suspect can be conducted in forms other than what is customary, and if one in that way can avoid a coercive measure. The matter should be assessed against the background of, inter alia, how far the preliminary investigation could be conducted and what procedures remain, the relevance of the interrogations, if interrogations could have been conducted, as well as under what conditions interrogations can be conducted (compare NJA 2007 p. 337). For an application of the provisions in chap 23 § 4, the decisive matter must be that the interrogations are conducted in judicially secure forms and as much as possible result in materials supporting good judgement.

Judgment in this case

13. The type of criminality suspected in this case is such that there is a strong public interest in seeing it investigated. The suspicion regards events that were to have taken place in Sweden, and the British courts have found that JA can be surrendered to Sweden in accordance with the European Arrest Warrant.

14. It must be pointed out at the same time that the detention – which has not been executed – has existed for a very long time. In June of this year it will have been three years since the British courts concluded their review of the arrest warrant. For most of this time, JA has been resident at the Ecuador embassy in London. According to JA, this is to be seen as a deprivation of liberty to be taken into account in assessing proportionality. He’s claimed that he, after being surrendered to Sweden, can be in turn surrendered to the US, with serious negative consequences.

15. When assessing proportionality, it must be taken into account that JA, as a result of the detention decision and the European Arrest Warrant, was deprived of liberty 7-16 December 2010, and that he has had other restrictions there. JA’s residence at the Ecuador embassy cannot however be seen as relevant in judging proportionality. If a person has been surrendered in accordance with a European Arrest Warrant, then he or she cannot be surrendered to a third country without the approval of the pertinent authority in the Member State who surrendered the person (see Article 28.4 in the council’s framework decision 2002/584/RIF from 13 June 2002 regarding a European Arrest Warrant and surrender between member states). A surrender from Sweden to the US depends therefore – in addition to judgment according to Swedish law – on the approval of Great Britain. It can also be added that no such request has been made by the US to Sweden.

16. Neither can JA’s deprivation of liberty been seen as in practice being limited in a way that violates the European Convention.

17. The question is then whether the investigative authorities should have taken alternative measures to move the investigation forward and interrogated JA. According to the prosecutor-general, the chief investigator has considered whether interrogations with JA could take place without him being in Sweden, for example via video link, but found that alternative inappropriate due to the type of investigation. The chief investigator has not previously seen any acceptable alternative investigative methods for the time JA has been at the embassy.

18. The very long time the detention has been in effect must be weighed into the assessment and means an increased demand on the investigative authorities to review what alternative investigative opportunities are available to move the preliminary investigation forward. Otherwise a detention – even taking into account that it has not been executed – would be seen as in violation of the principle of proportionality.

19. However, after the decision of the Court of Appeal, the chief investigator took measures to arrange for an interrogation with JA in London. The public interest to continue the investigation weighs heavily. With consideration for this and for the risk that JA avoids legal process if the detention is rescinded, a continued detention in the current circumstances can be seen to be in accordance with the principle of proportionality. Therefore there are currently no reasons to rescind the decision. What JA has otherwise submitted does not lead to a different assessment.

20. So JA’s appeal is rejected.


____________________ ____________________ ____________________

____________________ ____________________

The following participated in the decision: justices Ann-Christine Lindeblad,
Gudmund Toijer (referend), Ingemar Persson, Svante O Johansson (dissenting) and Lars Edlund

Presenting justice secretary: Charlotte Edvardsson

Case Ö 5880-14

Justice Svante O Johansson dissents and cancels the decision of the court of appeal, and holds that the decision from and including point 19 should read as follows.

19. The chief investigator has taken steps to arrange an interrogation with JA in London. The interest in continuing the investigation is considerable, despite the long detention. But for a long time now, it’s been uncertain when a surrender to Sweden could take place. The measures being taken now should have been taken earlier, in order to see how far this would have taken matters (compare NJA 2007 p. 337). Against this background, the grounds for continued detention cannot be seen as weighing so heavy that they outweigh the intrusion and harm that in practice the measures mean for JA. A decision for detention in the current circumstances is therefore in violation of the principle of proportionality.

20. So the appeal should therefore be approved.