It is not clear what the Swedish legislation says with regard to using coercive measures to access digital information. This uncertainty could render criminal investigators less effective, writes Mattias Hjertstedt in a new SNS report.
Serious crime has led to politicians discussing new forms of coercive measures. However, there are still unanswered questions regarding the coercive measures already being used, according to Mattias Hjertstedt in the SNS report Criminal Investigators’ Access to Existing Information in Electronic Communication Devices.
Hjertstedt examines how coercive measures used by criminal investigators to access existing information in, for example, computers and cellphones adhere to the European Convention’s protection of fundamental rights and freedoms. These measures include seizures, searches, remote searches and covert data reading.
“These kinds of coercive measures often involve massive privacy violations with regard to the suspects, and Sweden needs to comply with the European Convention. This makes it important to clarify which requirements apply,” argues Mattias Hjertstedt, associate professor of law.
In addition to legal matters, Hjertstedt continues, this is also a matter of efficiency. The unclear legal situation means that legal practitioners must spend a great deal of time trying to interpret the law. This, according to the report, also leads to a risk of the courts being uncertain of what to do and criminal investigators being hesitant to use existing coercive measures. To the extent that Swedish regulations do not live up to the requirements of the European Convention, it is also important to choose the most effective way to address such deficiencies.
In order not only to satisfy the requirements of the European Convention but also the need for effective law enforcement, Hjertstedt offers a number of recommendations: the cabinet and parliament should perform a review of the legislation regarding coercive measures to ensure that it is comprehensible. They should also review which coercive measures, according to the legal practices of the European Court, entail overly limited legal possibilities in terms of judicial review. Furthermore, police and prosecutors may need training in how to use these coercive measures. Hjertstedt also argues that suspects having their property seized should be informed of their right to a review of these decisions in court – so that they have enough time to request such an appeal before the seizure has ended.
Mattias Hjertstedt also presents a general recommendation to decision-makers (i.e., primarily criminal investigators and courts).
“Decisions on coercive measures should be made on the basis of a precautionary principle in favor of the people being affected. After all, he says, this is a matter of fundamental rights and freedoms, and this is the interpretation principle specified by the Swedish Supreme Court.”
about the project
The report Criminal Investigators’ Access to Existing Information in Electronic Communication Devices is part of the SNS research project Crime and Society. It runs from 2022 to 2024 and focuses on how to prevent crime and which measures may be effective in this regard.
about the author
Mattias Hjertstedt is an associate professor at the Department of Law and tied to the Police Education Unit at Umeå University.