Den retlige ramme for brug af aflytning ved infiltration i fængsler

Abstract

The authority to initiate and carry out the investigation of a criminal matter belongs to the police. At times the police must develop and test new investigative methods when the investigation of a criminal matter is abortive, and the usual means of investigation have been exhausted. An illustrative example of this is the police investigation in the criminal case pending at the time of writing about the murder of a woman in Elverparken on the 4th of November 2016. This led to charges being brought, after which the Danish Courts ruled on the investigative method, and whether the evidence obtained thereby could be used in the criminal case. The police placed a PET agent, Frank, as an infiltrator in the prison where the accused, who had previ-ously been questioned by the police, was serving time. Frank was equipped with listening devices, and the defendant’s cell was bugged. This investigative method is not expressly regulated in The Admin-istration of Justice Act (AJA). The purpose of the thesis is to examine the legal framework for the use of listening devices with infiltration in prisons as an investigative method as well as the use of the audio recordings obtained thereby as evidence. The investigative method consists of a combination of other means of investigation, each of which is separately regulated: use of listening devices, infiltration and questioning. Thus, the legal framework for the investigative method is the basic principles of the criminal process, the general provisions of the AJA on investigation, the rules on use of listening devices, infiltration and questioning in the AJA and the ECHR as well as case law from the Danish courts and ECtHR. The use of listening devices is ex-pressly regulated in chapter 71 of the AJA, while neither the use of personal listening devices nor infil-tration has express legal authority and therefore must be assumed to be authorized in AJA section 742(2) and governed by in particular the principle of proportionality. Due to the lack of regulation, the Danish courts and the ECtHR have found the use of listening devices violated the right to privacy, cf. ECHR Art. 8, while the admission of evidence obtained thereby, however, did not violate the right to fair trial, cf. ECHR Art. 6. According to the Danish courts and the ECtHR infiltration does not in itself violate Art. 6, but infiltration is only acceptable if a clear and foreseeable procedure for authorising, implementing and supervising infiltration is in place. The ECtHR does not in existing case law appear to consider infiltration to interfere with ECHR Art. 8. However, considering later case law from the ECtHR on the right to self-determination, it is unclear whether the ECtHR still holds this view. What is determinative for the legality of the investigation method is seen to be whether the conversa-tions between the defendant and Frank can be characterized as interrogations, which require observance of the right to remain silent and the privilege against self-incrimination, cf. AJA section 752(1) and ECHR Art. 6(1). The AJA does not contain a definition of interrogation, but only of rules for the con-duct of interrogations. In the case of the murder in Elverparken the Danish courts, in accordance with case law from the EC-tHR, carried out a comprehensive assessment of whether the conversations between T and Frank was equivalent to interrogations and thus violated Art. 6. The courts ruled that the accused may not be made to talk about the crime in defiance of the will of the accused. The District Court found that individual conversations could be characterized as interrogations and found based on a comprehensive assessment in accordance with Art. 6 that these conversations could not be included as evidence in the case. However, the High Court and the Supreme Court found that only a few elements of these conversations could be characterized as interrogations. Despite this, the evidence in its entirety could be included in the case. It follows from the ECtHR's practice that the use of illegally obtained evidence does not in principle violate Art. 6, but the use of explanations ob-tained in violation of the right not to speak and the privilege against self-incrimination in principle will constitute a violation of Art. 6, however, it depends on a concrete assessment. Based on the Supreme Court’s ruling, the police appear to have a certain degree of freedom for using such an investigative method. Given that there appears to be some discrepancy between the case law of the Danish courts and the ECtHR, which must however be seen in the light of the fact that in every case a comprehensive assessment must be made of whether the process as a whole has been fair, the current state of law in this area seems somewhat unclear.

A master thesis from Aalborg University

Den retlige ramme for brug af aflytning ved infiltration i fængsler

[The legal framework for the use of listening devices with infiltration in prisons]