Rättighetsskyddet vid kvalificerade säkerhetsärenden - En granskning av förenligheten mellan lagen (1991:572) om särskild utlänningskontroll och rättighetsskydden i Europakonventionen och regeringsformen
Sammanfattning: The application of the Act (1991:572) Concerning Special Controls in Respect of Aliens have had a major increase these last few years. The law refers to qualified security cases and enables the Security Police to take foreign citizens who are deemed to pose a danger to national security into custody pending their deportation. As the deportations can seldom be carried out due to the risk of inhumane treatment in the receiving country, the foreigners are generally required to report to the Police Authority a certain number of times a week. The application of the law has been criticized by lawyers and other experts due to the lack of transparency, secrecy of evidence and low evidentiary requirements. The purpose of this paper has been to examine whether the deportation procedure is compatible with the protection of rights that individuals are given through the Constitution of Sweden and the European Convention, and to base the discussion on the balance between human rights and national security. Through a legal dogmatic method, the content of current Swedish legislation and the European Convention have been clarified through processing of law, preparatory work, case law and literature. Practical examples have also been used in order to illustrate how the law is applied in practice. Subsequently, the compatibility between the Act Concerning Special Controls in Respect of Aliens and the protection of rights in the European Convention and Constitution of Sweden has been analyzed (de lege lata). Finally, by using a legal policy metod a discussion has taken place regarding the balance between human rights and national security (de lege ferenda). The results have overall shown a good conformity between the Act Concerning Special Controls in Respect of Aliens and the protection of rights in the European Convention and Constitution of Sweden. The Act has been assessed to be compatible with the protection of rights. However, there have been reports of the Security Police withholding evidence before the Migration Court of Appeal which has led to the assessment that the application of the law in this part is incompatible with the right to an effective remedy. Despite the general conformity between the Act Concerning Special Controls in Respect of Aliens and the protection of rights in the European Convention and Constitution of Sweden the balance of interests between human rights and national security is not equivalent. The rights of the European Convention allow a wide margin of appreciation which is primarily favorable to the national security interests of individual states. The protection of the rights of individuals should therefore be ensured so that foreigners who are branded as terrorists and national security threats are not without rights.
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