4.1Inleiding
De rechtbank heeft de relevante regelgeving opgenomen in de aan deze tussenuitspraak gehechte bijlage II.
Het EAB is uitgevaardigd door
the Swedish National Police Board(
Rikspolisstyrelsen) en strekt – onder meer – tot tenuitvoerlegging van een vrijheidsstraf.
Zweden heeft op 29 mei 2009 de volgende kennisgeving aan het Secretariaat-Generaal van de Raad van de Europese Unie gedaan:
Updated information from Sweden
An update of the Swedish notifications and statements in accordance with Articles 6(3), 7, 8(2), 13(4), 25(2), 27(1) and 28(1) of the Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedure between Member States is herewith forwarded.
The following authorities in Sweden are competent to issue and execute a European arrest warrant.
Issuing judicial authority
A European arrest warrant for the enforcement of a custodial sentence or other form of detention is issued by the National Police Board (Rikspolisstyrelsen).
Het
Evaluation Report on the Fourth Round of Mutual Evaluations “Practical Application of the European Arrest Warrant and Corresponding Surrender Procedures between Member States”: Report on Swedenhoudt ten aanzien van
the National Police Boardhet volgende in:
The National Police Board
In Sweden the national police service is responsible to the Ministry of Justice. The National Police Board is the central administrative and supervisory authority for this service. It is headed by the National Police Commissioner, who is appointed by the government. The National Police Board is responsible for international police work and the central police records.
The National Police Board is responsible for issuing EAWs in conviction cases. This task has been delegated to the International Police Cooperation Division (IPO). The IPO includes the Europol National Unit, the Interpol National Central Bureau, the Sirene National Office and the Police and Customs Cooperation in Nordic Countries Desk.
An EAW for the purpose of execution of a custodial sentence or detention order is issued by the National Police Board, at the request of:
- the National Prison and Probation Service, for the execution of a prison sentence,
- the National Board of Health and Welfare, for the execution of forensic psychiatric care, and
- the National Board of Institutional Care, for the execution of institutional care of a minor (…).
The National Police Board has delegated this task to the IPO.
In issuing an EAW the Swedish authorities apply a proportionality test; an EAW may only be issued if it is justified considering the nature and seriousness of the crime and the circumstances in general, thereby taking into account the harm to the individual and the estimated time and costs that may follow. (…)
In conviction cases, the institutions involved have no specific guidelines regarding when to request that an EAW be issued. According to the information provided, however, the National Board of Health and Welfare has a list of questions to consider before making a decision to request the IPO to issue an EAW.
7.2.1.1. The IPO as issuing authority
The fact that in conviction cases the IPO is - at the request of the National Prison and Probation Service, the National Board of Health and Welfare or the National Board of Institutional Care – the authority competent to issue EAWs is not in line with the definition of the EAW as a ‘judicial decision’ in the Framework Decision.
The Swedish authorities explained that their national rules are not so strict in describing the concept of judicial authority. They also explained that, in implementing the Framework Decision, they adopted a pragmatic approach in the sense that they preferred making the EAW procedure as close to their national system as possible (judicial authorities does not play any role in these matters at domestic level, where enforcement of sentences is handled by the Prison Service and the Police).
However, the expert team question the validity of these arguments in the light of the clear letter and principles of the Framework Decision, and stress that in such cases the EAW is issued and the form completed - including the summary of the judgment that serves as the basis for the EAW - by IPO officers, with no judicial control being provided by the domestic legislation. It should be a relatively simple matter to arrange for EAWs issued by the IPO to be checked by a prosecutor.
7.2.1.2. Requests for issuing EAWs in conviction cases
There is no regulation or even written guidance governing the decision of the competent administrative authorities in requesting the IPO to issue an EAW. This adds to the absence of judicial control on the issue of EAWs in conviction cases.
In that connection, the expert team would also like to point out that, according to the information provided, one person at the IPO is basically in charge of completing the EAW forms, which makes the system quite vulnerable in this respect.
Zweden heeft als volgt op dit rapport gereageerd:
Recommendation 3- Consider taking appropriate measures to ensure that EAW’s
in conviction cases are issued either by a judicial authority or under the supervision of a judicial authority, in line with the provisions of the framework Decision
Sweden would like to stress that when a judgment is final all subsequent decisions concerning the enforcement of the sentence in our legal system are taken by other authorities than the court. When implementing the Framework Decision on the EAW, we were of the opinion that the new legislation should be in line with the national system, i.e. it should be up to the enforcement authorities to decide if an EAW should be issued or not. In Sweden we have three different enforcement authorities and in order to coordinate the issuing of the EAW’s in these cases, the International Police Cooperation Division (IPO) was designated as the issuing authority.
When examining the role of the IPO as issuing authority, we have found no complaints, either from Swedish or other authorities. It should also be emphasized that IPO is staffed with qualified lawyers. Furthermore, the National Police Board has produced written guidelines to assist IPO when issuing an EAW.
To conclude, the existing system is the most effective and in line with our national procedure and no complaints has been put forward. Thus, Sweden has not found any convincing reason to change the current system
Bij brief van 1 augustus 2016 heeft
the Swedish Police Authorityde vragen van de rechtbank als volgt beantwoord:
1.
Has the positioning, structure and control (management) of the National Police Board and the International Police Cooperation Division been changed since the Evaluation Report and the Swedish follow-up to the Report?
No, the only change since 2011 is that currently a designated group of legal officers officials (lawyers), instead of a single officer, have been tasked to work with the preparation of the files leading to the issuing of the EAWs at the Division and that the Swedish Police Authority has been re-organized. The National Police Board does not exist anymore and our Division has been re-named International Affairs Division, see enclosed organizational chart in English, Annex 1.
The Swedish Police Authority use lawyers, which belong to an administrative and support Section, the International Office Section, within the International Division, to prepare the files and verify if the conditions for issuing an EAW for the enforcement of a sentence are metbased on the original documentation from the Court. This task has been given to this designated group with the relevant expertise to carry out these tasks. These employees do not work with national operational police investigations.
2.
Are the National Police Board and the international police cooperation Division independent of the executive bodies when issuing and EAW?
The International Affairs Division is part of the National Operations Department and is therefore an integrated part of the Police Authority, which is a law enforcement authority and has general executive powers. The Police Authority, however, is not dependent of the Swedish Prison and Probation Service, whose task is a.o. to ensure that subjects condemned to a prison sentence are brought to prison to serve their sentence and requests the issuing of the EAW, since these are two separate authorities with different missions and separate management.
The Division will not receive any instructions from the Ministry of Justice in these matters.
The Division has no direct or indirect links to the Court that has passed the sentence, ensuring independence from the Court having heard the criminal case leading to the prison sentence.
There are only three named officials that are allowed to undersign the Swedish EAW for the enforcement of a sentence, namely our Head of Unit, who is both a police officer and a lawyer, and two other designated senior officials that could replace her for this task. This allows for continuity and ensures that the specific expertise in the field of the European Arrest Warrant that the Division’s staff has acquired is used and can be upheld at the Division and that the document is signed at a senior level within the Swedish Police Authority.
3. On the basis of which criteria and which procedure do the National Police Board and the International Police Cooperation Division decide to issue an EAW for the purpose of execution of a custodial sentence or detention order
Firstly we would like to clarify that our Division is the competent issuing authority for the purpose of the execution of a custodial sentence or similar [penalty consisting in institutional forensic psychiatric care or institutional youth care that has been imposed after a judgement in a criminal court] and not for detention orders, which is the remit of the Swedish Prosecution Authority.
As regards the issuing of a European Arrest Warrant Sweden for the enforcement of a prison sentence from a criminal court, there are two different public authorities involved, the Swedish Prison and Probation Service, which is the requesting authority and the Swedish Police Authority, which is the issuing authority.
The issuing of an European Arrest Warrant is always based on a judgement passed by a Swedish Court that has gained legal force and after proceedings where the offender has been defended by a legal counsel and has had possibilities to lodge an appeal against the sentence in accordance with the Swedish Code of Judicial Procedure.
The Swedish Prison and Probation Service has a specific central unit (“Centrala klientärenden”) at their legal service at their headquarters in Norrköping handling information about subjects that have been sentenced to a prison sentence but have not appeared for the enforcement of the sentence and this unit initiates the requests for European Arrest Warrants. These case handlers are also lawyers and do a first vetting of cases to verify if the conditions for requesting an EAW are met. They will send a request electronically to our Division with all the data concerning the wanted person’s identity, the sentence passed and the full documentation (full Court sentence) in which you could find the criminal acts that have been committed by the offender – and if applicable – those that the offender has been acquitted of. A request for an EAW should only be made after having had the person inserted as wanted in our national wanted persons’ system.
Thresholds– The Swedish police authority applies the threshold of a penalty of a minimum of 4 months as set out in the Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (in respect of the sentence meted out, not in view of the remaining sentence to be served).
Sweden has also opted for including other accessory judgements where the penalty could be shorter than 4 months if there is already a judgement condemning the same offender to a minimum of 4 months as a basis for the EAW.
Quality assessment– verification of the fact that all information needed for filling in all compulsory field of the EAW have been filled and all formalities are correct and that the criteria for issuing an EAW for the enforcement of a sentence have been met.
Below you will find the steps that are taken at our office by designated employees, who are lawyers, to verify that the conditions for issuing an EAW are met in accordance with The Swedish Ordinance (2003:1178) on surrender to Sweden according to the European Arrest Warrant. The ordinance refers back to the general provisions that are to be found in the Act on surrender from Sweden in accordance with an EAW (2003:1156).
The designated employees at the International Affairs Division check that the subject for which the National Prison and Probation Service would like to issue an EAW has the same identity as the subject that was sentenced by Court and that the subject has been inserted as a wanted person on a national level in the Swedish register for wanted persons. This is done in order both to ensure that data about the subject is correct, including information about the offences committed and the penalty, and to allow for having undertaken a national search before using the possibility of widening the search to a European Arrest Warrant (proportionality).
The designated employees verify both the existence of a judgement from a Swedish Criminal Court, which is usually enclosed to the request or can otherwise be ordered swiftly from the Court, that it has gained legal force, as well as the penalty imposed and that the penalty has not become statute-barred. They also determine if the offence falls under of one of the 32 categories of offences for which the double criminality is not requested to be verified and marks that on the EAW if that is the case. The employees also verify if the wanted person was present during court proceedings or if there are other equivalent guarantees in accordance with section d. of the EAW for sentences handed down without the subject being physically present at the hearing.
The designated employees will examine the Court judgement(s) from both the first instance court and the Court of appeal, if there has been an appeal, and read the description of the prosecutor’s charges against the subject and the Court’s decision as regards each of the offences committed.
The designated employees also have direct access to the national criminal register to double-check the reference to the judgements, to verify if they have gained legal force and are also able to see whether any new judgements could have been handed down since the first judgement was passed, which may have to be added to the European Arrest Warrant.
The designated employees also have access to photographs and fingerprints of the wanted subject, if available, and can add them to the file.
Formal issuing of the Swedish European Arrest Warrant:
The head of the Division and two designated subordinate Heads of Section substituting the head of Division in her absence, are entitled to issue and sign the European Arrest Warrant.
Bij e-mailbericht van 2 augustus 2016 heeft
the Swedish Police Authoritydesgevraagd meegedeeld dat
the Swedish National Police Boardmet ingang van 1 januari 2015 – derhalve na de uitvaardiging van het EAB – is opgeheven en dat
the International Police Cooperation Divisionmet ingang van diezelfde datum
the International Affairs Divisionheet.
Hoewel het EAB is uitgevaardigd door
the Swedish National Police Boarden de brief van 1 augustus 2016 betrekking heeft op
the Swedish Police authoritydie – zo begrijpt de rechtbank
the Swedish National Police Boardheeft opgevolgd –, leidt de rechtbank uit deze antwoorden af dat de bevoegdheden, positie en rol van
the Swedish Police Authorityen de procedures en besliscriteria op basis waarvan deze autoriteit over de uitvaardiging van EAB’s beslist dezelfde zijn als die van de inmiddels opgeheven
Swedish National Police Board.
Uit het evaluatieverslag en uit de brief van 1 augustus 2016 leidt de rechtbank af dat
the Swedish National Police Board:
- het bestuurlijke en toezichthoudende gezag was voor de Zweedse nationale politie;
- de naar Zweeds recht bevoegde autoriteit was tot uitvaardiging van een EAB ter tenuitvoerlegging van een vrijheidsstraf;
- deze bevoegdheid had gemandateerd aan één of meer bij de politie werkzame medewerkers van
the International Police Cooperation Division;
- onafhankelijk was van het Zweedse Gevangenis- en Reclasseringswezen;
- onafhankelijk was van het Zweedse Ministerie van Justitie;
- onafhankelijk was van het gerecht dat de veroordeling had uitgesproken;
- alleen op verzoek van het Zweedse Gevangenis- en Reclasseringswezen een EAB uitvaardigde;
- daartoe naging of:
een vrijheidsstraf met een duur van ten minste vier maanden is opgelegd en
alle informatie die nodig is om een EAB in te vullen aanwezig was, alle formaliteiten waren verricht en alle voorwaarden voor het uitvaardigen van een EAB ter tenuitvoerlegging van een vrijheidsstraf waren vervuld (waaronder de omstandigheid dat de opgeëiste persoon op nationaal niveau was gesignaleerd als gezochte persoon, teneinde de proportionaliteit van de uitvaardiging van het EAB te verzekeren);
- haar bevoegdheid uitoefende zonder enige controle door een rechter of een vergelijkbare functionaris.
De rechtbank ziet zich ambtshalve gesteld voor de vraag of het EAB is uitgevaardigd door een ‘rechterlijke autoriteit’ zoals bedoeld in artikel 6, eerste lid, Kaderbesluit 2002/584/JBZ en dus of het EAB een ‘rechterlijke beslissing’ zoals bedoeld in artikel 1, eerste lid, Kaderbesluit 2002/584/JBZ oplevert. Deze vraag komt in het bijzonder op door hetgeen het Hof van Justitie recent heeft overwogen in zijn hierna nog te noemen arrest in de zaak
Bob-Dogi.