Legal assistance in criminal matters

International legal assistance in criminal matters consists of such measures that prosecutors and courts need assistance with from another state during a preliminary investigation and in court proceedings. Examples of such measures are interrogation during a preliminary investigation or seizure and search of premises.

Legislation on legal assistance in criminal matters mainly regulates the measures that we can assist other states with and the prerequisites for providing assistance of this kind. The legislation also includes provisions on the possibilities for courts and prosecutors to request legal assistance abroad.

The provisions on international legal assistance in criminal matters are mainly contained in the International Legal Assistance in Criminal Matters Act (2000:562). There are supplementary provisions on legal assistance in certain cases in the Act on Joint Investigation Teams for Criminal Investigations (2003:1174).

The International Legal Assistance in Criminal Matters Act - in general

The International Legal Assistance in Criminal Matters Act mainly consists of cooperation between prosecutors and courts. International police and customs collaboration is regulated by other laws. The Act does not cover extradition, surrender or the service of documents for which special legislation exists. Cooperation with international tribunals and the International Criminal Court is also regulated by other laws.

Under the Act, Sweden can as a main rule provide assistance even if Sweden does not have an agreement on legal assistance in criminal matters with the other state, i.e. no demand for reciprocity (mutual assistance) is made. However, a number of countries require an agreement to be able to collaborate with Sweden.

Besides legal assistance in criminal matters, Sweden can also provide assistance in matters as follows:

1. matters being dealt with in the applicant state or in Sweden in an administrative procedure or in another procedure than a penal law procedure,
2. matters relating to damages for incorrect deprivation of liberty, prosecution or judgment,
3. matters being dealt with together with a criminal case,
4. at the stage of execution, for instance, a pardon or respite with enforcement of a sentence.

As regards legal assistance in matters being dealt with in an administrative procedure or other procedures than penal law proceedings, Sweden requires that there is an international agreement on cooperation in these proceedings. There are no such requirements for legal assistance in other proceedings.

Requests to Sweden according to the International Legal Assistance in Criminal Matters Act

Measures

The basis for the International Legal Assistance in Criminal Matters Act is that Sweden shall be able to assist other states with all measures that it is possible to undertake in a Swedish preliminary investigation or court proceedings.

The International Legal Assistance in Criminal Matters Act covers the following measures:

1. examination in connection with preliminary investigation in criminal matters,
2. taking of evidence in court,
3. hearing by telephone conference,
4. hearing by video conference,
5. provisional attachment, seizure and search of premises and other measures under Chapter 28 of the Code of Judicial Procedure,
6. secret interception of telecommunications,
7. technical assistance with interception of telecommunications,
8. permission for cross-border secret interception of telecommunications,
9. secret camera surveillance,
10. electronic eavesdropping (bugging)
11. transfer of persons deprived of liberty for hearing, etc., and
12. forensic examination of a deceased person

The Act does not prevent assistance by a prosecutor or court with another measure if this can be taken without using coercive measures or other coercive means.

General prerequisites and the requirement for double criminality

Legal assistance is provided under the prerequisites that apply for a corresponding measure during a Swedish preliminary investigation or court proceedings. This means, for instance, that the rules of the Code of Judicial Procedure on what applies for a measure to be undertaken under the Code are applied in proceedings on legal assistance to other states. Supplementary provisions are contained in the International Legal Assistance in Criminal Matters Act. As regards the measures that have no equivalent in a Swedish preliminary investigation or court proceedings, for instance, transfer of persons deprived of liberty, the provisions for these measures are regulated in the latter Act. If the requesting state asks for a specific domestic procedure to be adopted, this shall be accepted provided that the procedure does not conflict with any basic principle in the Swedish legal system.

In order for certain measures to be undertaken in Sweden, it is required that the deed for which the request relates corresponds to a crime under Swedish law. A requirement of this kind for double criminality is made when the request relates to

1. provisional attachment, seizure and search of premises and other measures under Chapter 28 of the Code of Judicial Procedure,
2. secret interception of telecommunications,
3. permission for cross-border secret interception of telecommunications,
4. secret camera surveillance,
5. electronic eavesdropping (bugging),
6. forensic examination of a deceased person.

However, an exception is made from this requirement in the case of a request for search of premises and seizure from a Member State of the European Union or from Iceland or Norway. In this case, it is sufficient for the act in question to be punishable by imprisonment in the applicant state. No demand for double criminality is made for other measures

Means of communication

A request from an agency in a Member State of the European Union or Iceland or Norway may be sent directly to a competent Swedish prosecutor or court. The same applies to other states if this follows from an international agreement which is binding on Sweden. For requests based on the EU-convention from 2000 on mutual legal assistance in criminal matters direct communication is assumed, as a main rule.

Requests to Sweden are otherwise to be sent to the Central Authority (Ministry of Justice). If the matter is not to be decided upon by the Government, the Central Authority will forward the request to a competent court or to the Prosecution Authority, either through the Office of the Prosecutor-General or to the competent prosecutor directly. The prosecutor or court within whose area, the requested measure is to be undertaken is competent to receive the request. In the normal case, reporting back takes place in the same way.

A request for legal assistance is to be in writing. However, it can be sent by fax or, by agreement in the particular case, in another way, i.e. by e-mail.

The content of the request

A request for legal assistance shall contain details of the court or authority that is executing the matter. Furthermore, the request shall contain a description of the legal proceedings pending, information about the deed involved, stating the time and place of the deed, together with the provisions applicable in the requesting state. Information shall be provided about the measure requested and, when appropriate, in which capacity a person is to be heard. Moreover the names and addresses of the persons implicated in the matter are to be stated. The Act contains supplementary provisions on what a request should contain for certain kinds of measures. The receipt of a request for legal assistance is to be confirmed if so desired by the requesting authority.

Translation

The main rule is that requests for legal assistance and enclosed documents shall be written in Swedish, Danish or Norwegian or be accompanied by a translation into one of these languages. The court or prosecutor dealing with the matter may grant exemptions from this requirement in a particular case. This may be the case if, for instance, the judge or prosecutor understands the language in which the request is written or translated into and the person who is affected by the measures also understands this language. Translation of the material reported is always taken care of and paid for by the authority requesting the measure.

Procedure

Requests for legal assistance shall be executed promptly. The requesting authority is to be informed if the measures applied for cannot be undertaken within the time limit specified in the request.

The starting point is that the same procedure is to be applied as when a corresponding measure is undertaken in a Swedish preliminary investigation or court proceedings, for instance, how the measures is executed.

However, certain departures can be taken from the principle that Swedish procedural rules are applicable. If the requesting state asks for another procedure to be adopted, this shall be accepted provided that the procedure does not conflict with any basic principles in the Swedish legal system. The court and prosecutor may furthermore, if appropriate, decide that proceedings are to take place wholly or partly in a foreign language. Furthermore, the person to be heard or who is otherwise to undertake some performance under the Act, is entitled to refuse if there is support for this in both Swedish legislation and in the legislation of the requesting state.

If a measure requested by a foreign state is directed against a suspect, accused or injured party, the suspect, accused or injured party has the same right to a public defence counsel, victim's legal advisor, or support person as in a Swedish preliminary investigation or court proceedings.

Refusal of requests

The instance dealing with the matter considers whether the material prerequisites that apply for a particular measure to be undertaken are complied with and refuses the request if this is not the case. One example is the requirement of double criminality for certain measures.

The Government has sole competence to refuse a request on any of the specially listed grounds for refusals, for instance, if consent to a request would entail a danger to the security of the realm, or be in conflict with general judicial principles, or in certain matters if an act is a political offence. If the prosecutor or court deem it appropriate that a request should be refused on a ground of this kind, the request is to be submitted to the Government for consideration. Requests may also be submitted to the Government in other cases for consideration of refusal

Requests from Sweden according to the International Legal Assistance in Criminal Matters Act

Measures

The possibilities of Swedish courts to request legal assistance in criminal matters abroad are regulated exhaustively by law. There are also certain provisions on the ability of Swedish prosecutors to request assistance abroad. However, the point of departure is that Swedish prosecutors can request legal assistance abroad to the extent that the other state permits.

If and under what conditions Swedish prosecutors and courts can obtain assistance from other states is a matter governed by current provisions in the state in question and the international agreements that are binding between the other state and Sweden.

Means of communication

Requests from Swedish prosecutors and courts can be sent directly to the competent authority in the Nordic countries. Direct communications to authorities in other states may only be sent if this is permitted in accordance with an international agreement which is binding on Sweden or if the other state permits such communications despite the absence of a binding agreement. For requests based on the EU-convention from 2000 on mutual legal assistance in criminal matters direct communication is assumed, as a main rule.

If direct communications are not permitted, the request is to be sent to the Central Authority (Ministry of Justice) to be sent on to the other state.

The content of the request

A request for legal assistance abroad should basically contain the same information as a request for assistance to Sweden. Accordingly, the request is to contain information about the court or authority executing the matter, a description of the legal proceedings pending, information about the deed involved stating the time and place of the deed, together with the provisions that are applicable in the requesting state. Furthermore, information is always to be provided about the measures requested, and, when appropriate, the capacity in which a person is to be heard. If the matter is urgent or if execution is desired within a specific time limit, the reasons for the urgency or time limit shall be stated. The Ordinance (2000:704) contains supplementary provisions on what the request is to include.

It also follows from the Act that when certain measures are requested, additional information is to be provided in the request, for instance if a person is to be heard by telephone that he or she consents to the hearing. In many matters, additional requirements on the content of the request are stated in the international agreement, on which the request for legal assistance is based. Finally, the state that receives the request may require more information, which shall be complied with.

The European Judicial Network has produced a form for request for legal assistance. This form with a cover page for the request is available on the European Judicial Network's website. The form is mainly to be used for requests to other EU-countries and is not mandatory.

Translation

In most matters, requests from Swedish prosecutors and courts to another state are to be translated into the language of the state or to another language which the state specifies as a requirement. In direct communications, it is the prosecutor or court requesting legal assistance which is responsible for satisfactory translation of the documents. The Central Authority arranges translation of the requests which are not sent directly by the requesting authority. Information about the language or languages a state approves in a request of legal assistance in criminal matters is contained in an annex to the International Legal Assistance in Criminal Matters Ordinance (2000:704). It should be noted that a request translated into the country's official language will normally be dealt with more quickly than a request in another language approved by the state.

Translation of the material reported back is always arranged and paid for by the court or prosecutor that has requested the measure.

Act (2003:1174) on Joint Investigation Teams for Criminal Investigations (2003:1174)

This Act regulates certain forms of cooperation used within the framework of international legal assistance and also in international police work. The forms of cooperation regulated in the Act are joint investigation teams, controlled deliveries and crime investigations and use of protected identities.

Joint investigation teams

The purpose of setting up a joint investigation team is to coordinate and make more efficient one or more crime investigations with links to several states. A group should mainly consist of officials from the law enforcement authorities of the states concerned. It is set up for a special purpose, i.e. investigation into particular concrete crime and for a limited period of time.

If a preliminary investigation is in process in Sweden concerning crime that the joint investigation team is to investigate, the prosecutor or authority leading the preliminary investigation shall reach agreement with the other states on establishing the team. In other matters, such agreements are to be entered into by the Prosecution Authority, the National Police Board, the Board of Customs or the Swedish Coast Guard. The law contains provisions for the prerequisites that apply for the investigation measures that may need to be undertaken in Sweden. There are also provisions on limitations of use and damages.

Controlled deliveries

A controlled delivery means substantially that the crime investigation authorities wait or do not intervene against a delivery of, for instance, drugs with a view to tracking the delivery under surveillance and exposing the recipient in order to be able to better survey who or whom is behind the crime. The cases when delivery takes place into or from Swedish territory are regulated in the law.

A request for a controlled delivery in Sweden is dealt with by a prosecutor. It is also the prosecutor who applies to undertake a delivery of this kind abroad. The Police Authority, Customs and Coast Guard can make a request of this kind only after a prosecutor has given consent. Equivalent provisions on user restrictions and damages apply to joint investigation teams if this is in accordance with an international agreement.

Crime investigation using protected identities

This form of cooperation means that officials with protected identities are permitted to operate in a particular crime investigation in the state which consents to such collaboration. The detailed conditions for how cooperation of this kind is to take place are determined by the national legislation in the state where the investigation is intended to take place.

If a preliminary investigation is taking place in Sweden for the crime that the measure concerns, the prosecutor or the authority leading the preliminary investigation is to reach agreement with the other state on such assistance. In other cases, such agreements are entered into by the Regional Public Prosecution Office or the National Police Board. Corresponding provisions apply to user limitations and damages that apply to joint investigation teams if this follows from an international agreement.