Rendered in Stockholm on 11 May 2015 Ö

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1 SUPREME COURT OF SWEDEN DECISION Case No. Page 1 of 9 Rendered in Stockholm on 11 May 2015 Ö APPELLANT JA Attorney: TO, Member of the Swedish Bar Attorney: PES RESPONDENT Prosecutor-General Box Stockholm Doc ID Supreme Court Mailing address Telephone No. Office hours Riddarhustorget 8 Box (0) :45-12: Stockholm Fax No. +46 (0) :15 15:00 hogsta.domstolen@dom.se

2 SUPREME COURT OF SWEDEN Case No. Ö Page 2 of 9 NATURE OF CASE Remand to custody, etc. DECISION APPEALED Decision of the Svea Court of Appeal, dated 20 November 2014 in case Ö DETERMINATION OF THE SUPREME COURT The Supreme Court denies the appeal. REQUESTS FOR RELIEF BEFORE THE SUPREME COURT JA has requested that the Supreme Court overturn the decision remanding him in custody. JA has also requested that the Supreme Court order the Prosecutor to give him, or alternatively, to give the Supreme Court, copies of the aggrieved persons SMSs. In the event the Supreme Court is not of the opinion that this disclosure request can be granted, he asserts as an alternative request for relief that the Supreme Court should obtain an advance ruling from the European Court of Justice, pursuant to Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, the prosecutor has a duty to release copies of the material that the suspect received and wishes to cite ins support for his or her opposition to a decision relating to deprivation of liberty.

3 SUPREME COURT OF SWEDEN Case No. Ö Page 3 of 9 The Prosecutor-General has opposed any change in the decision of the Court of Appeal. The Supreme Court has previously denied the request to obtain an advance ruling from the European Court of Justice. The Supreme Court has granted leave to appeal on the issue of remand to custody, but has not granted leave to appeal with respect to the rest of the case. REASONING Background and the issue before the Supreme Court 1. On 18 November 2010, JA was remanded in custody in his absence, as there was probable cause that he committed coercive acts on August 2010 in Stockholm, sexual assault on August 2010 in Stockholm, sexual assault on 18 August 2010, or a day in close propinquity to the abovementioned date, as well as lesser degree rape on 17 August 2010, in Enköping. A European arrest warrant for purposes of prosecution has been prepared, and was finally adjudicated by British courts on 14 June Neither the decision to remand to custody, nor the arrest warrant, has been executed. As a result of the decision to remand in custody and the arrest warrant, JA was deprived of his liberty in the United Kingdom during the period from 7 to 16 December 2010, and he has been subject to restrictions in the United Kingdom in the form of electronic surveillance with shackles, a duty to report daily to the police, and a prohibition against being outside his home between certain times. Since 19 June 2012, JA has been living at the Ecuadorean Embassy in London.

4 SUPREME COURT OF SWEDEN Case No. Ö Page 4 of 9 3. In June 2014, JA requested that the District Court hold a continued proceeding relating to remand to custody, and to void the decision to remand to custody. The District Court decided that JA should continue to remain remanded in custody. JA appealed the decision of the District Court. The Court of Appeal denied that appeal. The current issue is whether or not JA should be remanded in custody. Fundamental conditions for a remand in custody 4. A remand in custody may be directed against persons for whom there is probable cause to suspect of a crime for which imprisonment of one year or more is possible, if, given the nature of the crime, the circumstances of the suspect, or for some other reason, there is a risk that he will abscond, or in some other way, avoid prosecution or punishment (Ch. 24, Sec. 1, Par. 1 of the Code of Judicial Procedure). 5. The Supreme Court shares the view of the Court of Appeal that there is probably cause to suspect JA of coercion, two cases of sexual assault and non-aggravated rape, and that there is a risk that he will abscond or in some other way avoid prosecution or punishment. The Supreme Court also agrees with the conclusion reached by the Court of Appeal that there is no legal obstacle to execution, which would, in turn, mean that the remand decision should be voided. Proportionality principle 6. An additional condition for remand is that the reasons for these measures outweigh any infringement or harm that the measures might mean for a suspect or for some other countervailing interest (Ch. 24, Sec. 1, Par. 3 of the Code of Judicial Procedure).

5 SUPREME COURT OF SWEDEN Case No. Ö Page 5 of 9 7. This provision expresses what is known as the proportionality principle. This means that a remand must be in a reasonable proportion to the result that those measures are meant to achieve. The least possible coercion should be used in order to achieve the intended purpose, and coercion should be used only if the purpose of the measures cannot be achieved through less invasive measures (See Govt. Bill 1988/89:124, page 24 and 65 et seq.). In the final analysis, a balance must be struck between the public interest of investigating suspected criminality in a secure manner, and the individual s interest in not having his freedom of movement restricted. It should be particularly noted that the issue of guilt has not been decided. 8. In the case of a continued remand, the factors of how long the deprivation of liberty has continued, and how long the need for remand is expected to continue are of importance. The longer the deprivation of liberty has been, the stronger the reasons for continued remand must be. Especially in the case of serious criminality, the presence of investigations-related difficulties may be a factor that must be considered. The authorities investigated crime should do so with a reasonable degree of efficiency, and use their best efforts to promote as short a remand time as possible. If there are any uncertainties here, the individual should not bear the burden of this (See NJA 2011, page 518, points 14-21, compared with Ch. 24, Sec. 18, third paragraph of the Code of Judicial Procedure). 9. An assessment of proportionality must also be performed in the case of a continuation of a remand in custody of a suspect who is not present in court. The balancing between conflicting interests, however, must take into consideration that the remand in custody has not been able to be executed. The interests that oppose each other, can therefore be given different internal significance in these kinds of cases. Even remands in absentia can lead to restrictions in an individual s freedom of motion but typically,

6 SUPREME COURT OF SWEDEN Case No. Ö Page 6 of 9 an executed remand decision is viewed as much more invasive (cf., Ch. 24, Sec. 17, paragraphs three and four of the Code of Judicial Procedure). 10. The suspect is not required to participate in the investigation. The factual consequences in the case of remands in custody that are not executed may be that the preliminary investigation in certain situations cannot progress in the same manner as would otherwise be the case. The demand that the preliminary investigation should be conducted in an efficient manner must thus be deemed to include the requirement that the crime-investigating authorities must consider the possibilities that exist to continue the case toward its resolution. 11. In the case of increasingly longer remands that are not able to be executed, there is reason to consider whether these measures are effective (cf. Per Olof Ekelöf et al, Rättegång III, 7 ed., 2006, p. 48). When there is a strong public interest in investigating and prosecuting criminality, however, it can sometimes be difficult to avoid a long-term remand in absentia. 12. In this regard, there is reason to also mention the s in Ch. 23, Sec. 4 of the Code of Judicial Procedure. These provisions state, inter alia, that no one should be unnecessarily affected adversely by costs and inconvenience due to the preliminary investigation, and that the preliminary investigation should be conducted as speedily as the circumstances would allow. Given this, a decision may need to be made, for example, as to whether the examination of the suspect can be conducted in forms other than those that are commonly used, and whether this could obviate the need for involuntary measures. The case needs to be assessed against the background of factors such as how far the preliminary examination has been able to progress, and which measures remain, the importance of the examination, and whether previous examinations have been able to be arranged, as well as

7 SUPREME COURT OF SWEDEN Case No. Ö Page 7 of 9 the circumstances under which an examination can be held (cf. NJA 2007, p. 337). When applying the provisions of Ch. 23, Sec. 4, however, the determining factor must be whether or not the examination can be held under forms that are characterized by legal security and that result in a good basis for an assessment. Assessment in this case 13. In the case of the type of criminality suspected here, there is a strong public interest in investigating these crimes. The suspicions relate to events that have taken place in Sweden, and the British courts have found that JA can be transferred here pursuant to the European arrest warrant. 14. It must also be noted that the remand in custody, which has not be able to be executed, has continued for a very long time. This June will mark three years since the British courts concluded their consideration of the arrest warrant. During practically all of this time, JA has remained at the Ecuadorian Embassy in London. In the view of JA, this should be viewed as a deprivation of liberty that should be considered as a factor in the proportionality assessment. He has asserted that transferring him to Sweden could result in his being transferred to the United States, which would have seriously negative consequences for him. 15. An assessment of proportionality should involve considerations such as the fact that JA, as a result of the remand decision and the European warrant, has been deprived of liberty in the United Kingdom between 7 and 16 December 2010, and that he has been subjected to other restrictions there. The fact that JA has stayed at the

8 SUPREME COURT OF SWEDEN Case No. Ö Page 8 of 9 Ecuadorian embassy, however, cannot be accorded any significance in the context of the assessment of proportionality. If a person has been transferred pursuant to a European warrant, he or she must not be transferred to a third country, without the consent of the authorized agency in the Member State that has transferred the person (see Article 28.4 of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States). A transfer from Sweden to the United States thus requires, in addition to an assessment under Swedish Law, that the United Kingdom give its consent. It should be noted that no request from the United States has been made in Sweden. 16. JA s freedom of movement cannot, in actuality, be deemed to be limited in any way that violates the European Convention. 17. The issue is then whether the authorities investigating crimes should have chosen alternative measures to move the preliminary investigation forward, and arrange an examination with JA. According to the Prosecutor-General, the person leading the preliminary investigation had considered whether, for example, an examination could have been held of JA without his being present in Sweden, through a video hook-up or some other form, but had found that this would not have been appropriate due to the nature of the investigation. The person leading the preliminary investigation has not previously found any acceptable alternative investigatory methods during the time JA has remained at the embassy. 18. The very long period during which the remand has continued, at present, must be considered in the assessment, and constitute an increased demand on the authorities investigating these crimes to consider the alternative investigatory possibilities available in order for the preliminary investigation to progress. If this is not done, a remand in custody, even

9 SUPREME COURT OF SWEDEN Case No. Ö Page 9 of 9 though not executed, can be deemed violative of the proportionality principle. 19. After the decision of the Court of Appeal, the person who led the preliminary investigation, however, took measures to arrange for an examination of JA in London. Because of the public interest in continuing the investigation is an important consideration. In light of this, together with the risk that JA may evade prosecution if the remand is vacated, a continued remand in custody, given the current circumstances, can be deemed to be in accordance with the proportionality principle. There is therefore, at present, no reason to vacate the decision. What JA has otherwise stated does not lead to any other assessment. 20. JA s appeal will therefore be denied. (Signature) (Signature) (Signature) (Signature) (Signature) (See record of proceeding) The following persons have taken part in this judgment> Supreme Court Judges Ann-Christine Lindeblad, Gudmund Toijer (presenter), Ingemar Persson, Svante O. Johansson (dissents) and Lars Edlund Presenting Supreme Court law clerk: Charlotte Edvardsson

10 SUPREME COURT OF SWEDEN APPENDIX TO RECORD Case No. Ö April 2015 Supreme Court Judge Svante O. Johansson dissents on the facts, and would overturn the Decision of the Court of Appeals with regard to the remand in custody, as well as is of the opinion that the Decision of the Supreme Court, beginning with point 19, shall have the following wording: 19. The person who led the preliminary investigation has now taken measures to arrange for an examination of JA in London. The public interest in continuing the investigation, despite the long remand period, is significant. However, for a long time, it has been unclear when a transfer to Sweden can take place. The measures that have now been taken should have been commenced earlier, in order to find out how far this could lead (cf. NJA 2007, p. 337). Given this background, the reasons for a continued remand cannot be deemed to be so important so as to outweigh the invasiveness and detriment that these measures, in actuality, would cause JA. A decision in favour of remand would now be violative of the proportionality principle. 20. The appeal will therefore be granted. (initials) Doc ID Supreme Court Mailing address Telephone No. Office hours Riddarhustorget 8 Box (0) :45-12: Stockholm Fax No. +46 (0) :15 15:00

Communication from Working Group on Arbitrary Detention Reference: G/SO 218/2

Communication from Working Group on Arbitrary Detention Reference: G/SO 218/2 Stockholm 3 November 2014 UF2014/58264/UD/FMR Ministry for Foreign Affairs Sweden Director-General for Legal Affairs Mr Mads Andenas Chair-Rapporteur for the Working Group on Arbitrary Detention Office