Polisiär brottsprevention i rättsstaten – Kan inhämtning i underrättelseverksamhet förenas med rättssäkerhet och rättstrygghet?

Sammanfattning: The law on retrieval of data allows a secret coercive measure that enables the police to gather information about electronic communication for intelligence purpose. The aim of this thesis is to study how the requirements set in a state led by the rule of law, such as predictability in legal matters and sufficient safeguards against misuse, are satisfied in the law on retrieval of data, in relation to the right to respect for private life. The thesis further aims to study how the balancing between the safeguards and the interest of efficient crime prevention is made and how the development of secret coercive measures can be expected to be affected by technical development, assumed threats and politics. In the thesis, the safeguards in the law on retrieval of data are studied in relation to the safeguards found in other Swedish legislation regarding secret coercive measures. The law is also studied in relation to the safeguards deemed necessary by the European Court of Human Rights and the Court of Justice of the European Union in relation to measures limiting the right to freedom from intrusion in private life. The domestic law allowing secret surveillance measures must, according to the European Court of Human Rights, be sufficiently clear in its terms to give citizens an adequate indication of the conditions and circumstances in which the authorities are empowered to resort to any such measures. It also has to ensure sufficient safeguards regarding misuse. The area of secret coercive measures is also to a large extent affected by technical development. Technical development also affects the amount and nature of the information possible to retrieve by a secret coercive measure. The study concludes that the law on retrieval of data has not got sufficient safeguards in regard to what is required in a state led by the rule of law and the requirements stemming from European Convention on Human Rights and the Charter of Fundamental Rights of the EU. The problem oriented, forward looking nature of intelligence creates difficult considerations regarding the predictability and precision of the law. Concerning the safeguards against misuse, the decision of information gathering is not subject to prior review by a judicial authority or an independent administrative authority, and which group of people who can be subject of the secret coercive measure is not defined. Efficiency in crime prevention is often prioritized over the rights of the individual and sufficient safeguards, in the balancing between the interests. Technical development appears to be seen only as a motive to expand the area of secret coercive measures and not to limit the use of them. The penal political trends indicate that the repressive development of secret coercive measures will continue.