REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: Country of exchange: Sweden Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: italian Functions: public prosecutor Length of service: seven years Identification of the exchange Hosting jurisdiction/institution: Swedish Prosecution Service City: Stockholm Country: Sweden Dates of the exchange: 26th april 6th may Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) REPORT My exchange within the Swedish Prosecution Office started in Stockholm through a meeting with the Training Unit at the Office of the Prosecutor General. I've had a brief introduction to the structure of the Office and some indications about how you can become a Prosecutor in Sweden. I'll go back to these subjects when I'll write about my meeting with a person of the Human Resources Office of the Prosecutor General, in my last day. The Training Unit, where 8 people work, is divided in three : Senior unit - for the oldest Prosecutors - Junior unit - 15 weeks appointed for the new Prosecutors - and the Administrative unit - that take care of organization and budget. The trainee period lasts 9 months and than you go through 15 weeks courses that are equal for all the Prosecutors, where the new members get good practices and guidelines. The Senior Training unit provides course about interrogation, rhetorical skills, evidence, special crimes and upgrades about new problems and challenges.

3 In the afternoon I met the Legal Department, one of the most important units in the Prosecutor General Office : their four senior members follow all the cases that will be discussed by the Supreme Court, the third and last level for the Swedish legal system. Any case is granted for appeal, but the Supreme Court is free to decide if the question raised about the decision of the Court of Appeal is worthy for a decision. There are no more then a hundred decisions per year from the Supreme Court and they are referred mainly to interpretation of the law and principles: it must be a question of general interest. In the past judges of the Supreme Court were chosen by the Government, but now they can also make application : there is a strong trust in the appointments, as then I could also see in many other situations. There is also a Supreme Administrative Court at the top of the administrative justice. The Prosecutors told me that the defendant has four weeks to appeal and then the decision comes after 2/3 weeks if he is in custody and a few months if he is free. The Supreme court could send a case back to the Court of Appeal, but it is really a very rare decision, since mainly the fact is take for granted. The same day I met the International Unit : they deal with most of the mutual legal assistance cases, checking the requests from other countries and sending the incoming cases to the local offices. If they're from not Nordic and not EU countries, the ministry of justice can decide what to do ; there is a very strong and effective assistance with Denmark, Norway, Finland and Iceland. The Eurojust Swedish member works within this unit. We had the chance to discuss the great importance of the "freedom of speech" in Sweden, an old principle who can never be limited neither in a case of mutual legal assistance. I've spent the next three days visiting an ordinary Public Prosecution Office just to see the every day work of a common Prosecutor in Sweden. I was hosted by the Local Public Prosecution Office in Solna, one the five office of Stockholm. The district of Solna has 700,000 inhabitants and there are 30 Prosecutors working in this office with less than a hundred cases to lead each. There are many different units : drugs crimes, youth crimes, crimes against children, common crimes. After an overview of the Office, I started discussing how they deal with preliminary investigations. There is a strong division between Police and Prosecutor, but they also work strictly connected when a case has to be led by the Prosecutor itself. This happens if there is a suspect and it's not a minor case (like shoplifting). When the Prosecutor leads the case, he can ask to the police to survey the investigations he needs but they cannot control how and when the work will be done. House searches can be conducted by the police if there is reason and necessity; they have to ask to the district court if they want to use wiretapping (only in severe cases) but judges are not involved if it's just a seizure. I've spoken with a Prosecutor appointed at the "youth crimes unit" (for crimes committed by people between 15 and 18 years) : this is a main matter in Sweden and there also special units and specialised police when the suspect is a juvenile. First of all, Sweden has fully adopted the Convention for the rights of child and all the Swedish laws has to respect those standards. Respect to this issue, it has be to remembered that Sweden has no constitutional court to verify the accordance to basic principles and this control will be done by each and every magistrate. There s no duty of charge for juvenile and they have special guidelines to respect in their investigations: all the cases are led by Prosecutors, normally the charge has to be pressed within 6 weeks ; after that the process will start in 2 weeks.

4 There are also special sanctions for juvenile, since it is almost impossible for the them to go to prison : if they need a period of control, they will be taken to special houses that have nothing in common with a prison. The Prosecutor told me that there is a solid trust in the police, even from the juvenile themselves, and they work with a strict connection with the community service and all the social authorities. In respect of coercitive measures against adults, I've been told that they can ask them to the district court if there is a risk of escape, if the suspect could destroy evidences or if it's probable that he will commit another sever crime. The custody can be chosen only in presence of a "probable cause". The 90% of people in custody stays in prison for only two weeks and they are kept strictly separated from the ones definitively convicted. It's interesting to note that half of the people in custody come from family related crimes : it seems a sign that this kind of crime is quite spread through the country, but also that they don't know all the sever felonies we have in a country like Italy (organized crime, corruption, conspiracies). Even if it's not possible to convict someone for a family related crime or stalking, the Prosecutor can obtain a measure to avoid the suspect to meet another person for one year; this is possible also just for threats. Crimes against children is another emergency; this explains why all the sexual abuse cases are led by Prosecutors, even if there isn't a suspect (quite an exception for the Swedish system). There are three months to complete investigations and if the victim is less than 15years old, the hearing will be recorded and will be conducted in a particular room by specialised policemen. Unlike Italian system, Swedish Prosecutors and judges do not use psychologists to evaluate what the child ha said and there is a vey high standard of evidence to get a conviction. Normally, the story told by the child is not enough without other evidences and confirmations. We ve had many discussions about the best practices in these kind of investigations : I could appreciate that in Sweden there are very clear and specific guidelines that can guide the police at every step. Meeting the other units, they told me that they start to see Russian crime organizations that deal with men trading and prostitution. respect immigration is a small problem, handled by police more than prosecution offices. The police has the duty to complete investigations if they're not led by Prosecutors : in this case, they'll bring the final paper to the Prosecutor for the charge, but he can ask them to do something more or different if he thinks that it's not enough for trial. Moreover, a Prosecutor can actually make a sentence for a simple fine if the suspect confessed : in this minor cases they don't need a lawyer or a judge and the procedure is very fast and effective (for example for crime of bringing outside a knife). In some cases it can take less than two hours to get a sentence from the moment the Prosecutor received the report of the crime. There is always a Prosecutor on duty for emergencies, but after that first moment, any case will be assigned to another colleague according to normal procedure. The Chief Public Prosecutor will assign every case to a unit or to a particular Prosecutor having regard to their personal skills and experiences; after that the Prosecutor is quite free to lead the case by his own, but the case could also be called back if there's no agreement with the chief. It's a quite improbable chance and there is no formal procedure to check all this event. When the case is ready for trial, the Prosecutor prepares the charge with the description of the facts, evidences, witnesses and documents. The Prosecutor himself will actually decide whether to produce a document or not and there is no contradictory about this. In fact the Prosecutor can also read what a witness said before the trial and after that the court will be authorized to use also this previous statements; if there is a contrast the judges will decide which version has to be trust, evaluating the reason of the contrast itself.

5 The criminal record and the ongoing processes about a suspect is available to any Prosecutor all over Sweden at any time. If the Prosecutor thinks that the case has to closed, he can do it without any particular check and without asking to the court or informing the victim. If there is a complaint, a special office in Stockholm has the competence to verify if something went wrong or if there was a misconduct by the competent Prosecutor; there are really a few cases of complaints. Another meeting was with narcotic crimes unit : they seemed particularly concerned about the list of drugs since it s quite common to seize new kind of chemical drugs; they have identified eleven criteria to establish whether or not a substance con be considered a drug. They can use undercover agents but they re not authorized to provoke a crime ; they make also a large use of secret informant : if that informant is proved to be right in the past and there are other evidences, he can be used and only the Prosecutor has to know his real identity. There is a wide definition of narcotic crime and they punish also the personal use. It was very interesting to see that their criminal justice use rigid and specific (TABELLE) to decide the appropriate sanction for a certain amount of a particular drug. A Prosecutor from the every day crime unit told me that almost 50 % of these minor cases are sentenced by the prosecution office through the confession of the suspect ; only half of the crimes go the District Court (for very simple misdemeanours like shoplifting the police can close the case without involving the Prosecutor!). The Prosecutor doesn t have to confirm any personal or house-search and neither the seizures. Prescription, unfortunately a big deal in criminal justice for Italy, is not an issue in Sweden : they have a quite fast "prescription time" (2/3 years, longer only for the most severe cases), but after the beginning of the trial that period becomes very wide and long (10/15 years), so that in fact it never happens to see an acquittal for expiring of the prescription time. The chief Prosecutor gave me some formal news about the "Assange case" (the rape case related to the creator of Wikileaks), explaining me that the Solna Local Prosecutor Office had to use the European Arrest Warrant because he refused to answer to the police and to participate to the trial. I've been impressed by the use of technology at any level : almost every act or communication is realized and sent by computer. No paper, no risk to lose acts, speedy procedure and the chance to have a total control of the ongoing investigations. I could attend two hearings : one in front of the Court of Appeal and one in front of the District Court. At the Court of Appeal I saw a trial for robbery against two defendants. The procedure started with an introduction from the Prosecutor and a first statement from the lawyers; after that the Court, made by four people with two members without a legal education, could see all the evidences assumed in the first trail, recorded and now displayed again; usually new evidences are not admitted. Like in Italy, the appellant cannot be convicted to a worse sentence if he is the only one to appeal. The procedure was quite similar in front of the District Court, where I saw a hearing for an arrest. I noticed that at the end of the discussion, the Court gathers many news about the suspect, just to balance the decision also taking into account his specific life conditions. An important difference from the Italian system is the chance for the Court to read and use also the previous statements from a witness and from a suspect too. Even if the first declaration was made without the assistance of a lawyer.

6 There are no in absentia trials, unless it is a case that can be sentenced up to three months in prison, as well as there is no chance for an agreement on the sanction between Prosecutor and defendant. The Court can pay for the legal assistance if the suspect has a low income; therefore there is a strong difference between the victim counsel and the defending counsel : only the second one is legally trained and has to be present for the severe cases. The second week of my visit started from the International Public Prosecution Office in Stockholm: this national unit has 46 Prosecutors, chief, deputy-chief and two auditors per economic issues. The economical auditor is a new figure created to give a special support to the investigations involving seizures and confiscations and they help to enforce the aggression to the economic profits of the crimes. The seizure can be converted in a police confiscation or will be appointed the enforcement agency after a hearing custody. In the past the Prosecutor had to be sure that the aim of the confiscation was directly connected to a specific crime ; nowadays he just needs to bring evidence of a probable connection. Unfortunately the new rules about seizures and confiscation aren t still really enforced : only a few Prosecutors make investigation about the profits and then use this chances. Another leg of the unit takes care of the international collaboration : the Prosecutors of this group handle all the cases that need to cooperate with foreign authorities. They face many investigations about human smuggling and most of the times they are about people from Iraq, since there is a big community from that country in Sweden and once they come to Sweden by air for holiday, then they ask for asylum. Talking about this kind of investigation we had the chance to explore the procedure for wiretapping: the Prosecutor can use this instrument only for crimes punished with more than 2 years of prison, there must be a suspect or a person who can be identified and they receive an authorization by the District Court for 30 days but after that period they can ask for more wiretappings if they show they re useful for investigations. The international unit has a strong cooperation with the social welfare authorities, customs and immigrations authorities. Human trafficking is another big challenge : there can be trafficking for sexual exploiting or forced labour. In Sweden even buying sex is a crime and if the person exploited is a juvenile it will be a case of human trafficking also without violence. The International Public Prosecution Office host since 2007 five war crimes specialised Prosecutors: they cooperate with special police unit since 2008 and have national competence. Even if Sweden doesn t participate to a war since 1814, they decided to have someone specially skilled because of the influx of migrants (from Balkans, Afghanistan, Rwanda, Sierra Leone, Iraq) and eventually also for Swedish servicemen abroad. The investigation could start with reports from the Swedish Migration Board, from the police or from other countries and then the dialogue with Eurojust, Europol and foreign countries will be decisive. So far they ve had three major cases : Arklof a Swedish citizen travelling to former Yugoslavia in order to fight the war and who committed several atrocities : he was sentenced in Bosnia bat then released for the purpose of exchanging prisoners ; that is why the Swedish Prosecutor thought it was not a case of ne bis in idem ; they listened to 11 witnesses (3 in Sweden and 8 via video from Bosnia) and in the end he was convicted for gross crimes against international law to 8 years in prison ; Detrelj a Bosnian Muslim who joined the HOS (Croatian Army Force) and served as a prison guard in the prison camp in 1992 where at least 228 Serbian civilians where captured and submitted to

7 atrocities (murders, kidnapping, assault, forced labour) ; now he is a Swedish citizen and during the trail the Court listened to victims from all over the world Cuska another Swedish citizen identified through a picture with other war criminals connected to Kosovo where he killed at least 40 civilians ; The day after I ve met Prosecutors of the Stockholm Development Centre, one of the three development centres within the Swedish Prosecution Service that are responsible for the legal development, legal control and inspection of the Public Prosecutor Offices. This unit is also handles requests for retrials or complaints about decisions to close a case taken by a public Prosecutor. Beyond the Development Centre you can appeal at the Prosecutor General, but it s really unusual that he changes a decision and he doesn t have to answer at all. The Development Centre is the only institution in charge for checking decisions made by the public Prosecutors ; the Minister of Justice can give guidelines and make requests to the Prosecutor General, but he cannot make his own investigations and controls. Each one of the three Development Centres also prepares guidelines for special crimes : the one in Stockholm is competent for organized crime, property, corruption, robbery, frauds, narcotic crimes. This guidelines are very useful and help to keep a standard approach to similar crimes all over the country. The Prosecutors specialised in organized crime told me that in Sweden there is nothing similar to our mafia : they just have motorcycle gangs and some ethnic organized crime but they still don t have a law to punish the simple participation in a conspiracy or in an organization created to commit crimes. After the Development Centre, I went to visit the National Public Prosecution Office for Environmental Crimes. It s a small unit specialised in the most sever environmental cases (70 per year) : these Prosecutors has a national competence and they cooperate with inspectors. Inspectors of national authorities are the first source for detecting new violations and new cases: all the investigations are led by the Prosecutors. This unit deals with littering, unauthorized environmental activities, violation of territorial protection, pollution from ships and other crimes against the environmental code ; they cooperate with only 60 police officers all over the Sweden and that s why cooperation with inspectors is essential. After that I met the Anti Corruption Unit : there are 6 senior Prosecutors dealing with high ranked public officers makings frauds. There are only 80/100 cases per year, also because Swedish people still rely on public officials. Investigations starts from official reports, tax authority and also newspapers ; there is a good dialogue with journalists and sometimes they re helpful to find out new cases. These Prosecutors also deal with private corruption : for sample, private companies paying bribes abroad, and they can handle such a crime since it is usually at least partially committed in Sweden. There I s a strong cooperation with an authority called Klus, a Swedish Administrative Development Agency that work for a national network against corruption. The main value to protect in public life is transparency and this probably explains why Swedish Administration still works. In Sweden there is no connection between organized crime and corruption and the Chief Prosecutor of this unit is absolutely independent, even if he was nominated by Ministry of Justice. I ve also spent a day visiting the Public Prosecution Office in Uppsala, the fourth city in Sweden, not from Stockholm. They worked as in Solna but it s been interesting to confront with a different context and to speak with the chief of their police. In this office there are 35 Prosecutors and they don t have more than 25/30 ongoing investigations each (there are 700 Prosecutors all over the country). They often

8 use video-conference to attend the Court of Appeal : indeed, in Sweden there is not a special Prosecutor for the appeal and the Prosecutor in front of the District Court will follow the trial even at the second level. I also noticed that they mostly don t bring to trial doctors for medical liability : in Italy we have a plenty of this kind of crime but in Sweden they usually use just a disciplinary procedure. My last meeting before coming back to Italy was with Swedish Crime Authority, that brings about security and justice by preventing and combating economic crime. This big unit also carry out investigations and analysis, gives advice and take protective measures for crime prevention. The most common crimes are : book keeping crimes, crimes under the Tax Offences Act, dishonesty to creditors, crimes under Companies Act, crimes under the Insider Trade Act and Financial instrument Trading Act and EU-fund frauds. They also handles cases demanding knowledge of financial conditions, business sector conditions and taxation law. There are 95 Prosecutors, 185 police officers, 40 financial investigators and 40 people for the administration ; they had 4782 new cases in 2009 and completed 4845, suing 1818 suspect. They also take care of international cooperation with OLAF, EJN and Eurojust and work for an effective mutual legal assistance.

9 SUMMARY The Swedish Prosecution Authority is an independent organisation. It is independent from both the courts and the police. The Prosecution Authority, like all other Swedish authorities, is not a department in the Ministry of Justice or any other ministry. The Prosecutor conducts both the investigation and brings the case to court. Swedish Prosecutors have three main duties: to lead and direct the preliminary investigations of crime to make decisions on prosecution issues to appear in court to process actions in criminal cases There are some employees within the Swedish Prosecution Authority, 950 are Prosecutors while the remainder work with various support functions. The operative prosecution activities are conducted at the country s 39 local public prosecution offices. Of these, 32 are public prosecution offices, with a geographical sphere of operation that is approximately equivalent to a county. The authority also has international public prosecution offices with specialist competence in order to combat organised cross-border crime and to permit international co-operation between Prosecutors. In addition, there are three national prosecution offices one for combating corruption, one for dealing with suspected offences committed by the police and one for security-related cases. The Prosecution Authority s three prosecution development centres are tasked with conducting methodological and legal development within different criminal areas. Legal follow-up and inspection are also conducted here. The centres are responsible for maintaining general expertise within their respective areas of responsibility. At the Office of the Prosecutor-General, there is a criminal offences department for cases heard in the Supreme Court, a legal department for legal direction and control as well as central international issues, a public Prosecutor department with responsibility for co-ordination of the operative activities, an administrative department and a communication department. During my exchange I ve had the chance to meet and confront with most important offices with national competence (anti-corruption unit, international prosecution office, prosecution office for environmental crimes, economic crimes authority) and also to see the ordinary day work of a public Prosecutor. I could notice many analogies as well as many differences between the Swedish judicial system and mine. These are just some of the most meaningful : a Swedish Prosecutor doesn t have to lead investigations against unknown people or minor cases and he can close a case by his own there is much more trust in the whole system and in this way they can be less formal and more effective they have a lot of specialised units so that every Prosecutor is helped to get a particular skill and doesn t have to handle with any kind of crime there is much less criminality and they don t have to deal with many corruption cases and organized crime as well as they ve never had inner terrorism (but the killing of Olaf Palme) they make a large use of computer and are really well organized at every step of the procedure : in this way they are not worried about notifications, burocracy and prescription of the crime (three big problems in Italy) The experience was really formative.

10 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?