Infiltration - Till vilket pris? En bedömning av infiltration ur ett rättssäkerhetsperspektiv

Sammanfattning: This essay concerns the unconventional reconnaissance method of infiltration. Infiltration is a reconnaissance method that Swedish police has used in its law enforcement activities during many years, even though no section in Swedish law explicitly justifies its use. The purpose of this essay is therefore to investigate the legal basis of infiltration and whether this legal basis is in compliance with the rule of law. The term “rule of law” lacks a legal definition. There is however one common denominator in all the attempts that has been made to define the term: the requirement of predictability. This requirement states that all legal decisions taken in a state requires a legal basis. Each and everyone should be able to foresee how a certain law may be implied. To achieve this, a law must be formulated in a clear and adequate manner. Infiltration also lacks a legal definition. That alone is quite remarkable since it limits the possibility of an application of law that is conform with the requirement of predictability. That which can be ascertained is that infiltration consists of the retrieval of information. The infiltrator is either an officer of the law or an individual citizen under the immediate control of the police who infiltrates an establishment with the purpose of retrieving valuable information. The procedure must involve a certain level of deception that must be upheld during a timespan which is not too negligible. Furthermore, infiltration is associated with several tangible and serious risks. The infiltrator exposes himself to the danger of being exposed, risks putting himself in situations where he himself needs to commit criminal acts or makes himself guilty of unlawful entrapment and thereby risks violating art. 6 ECHR. Despite the risks and problems associated with infiltration there is no explicit legal basis for its use, nor is there any clear frameworks which regulates the procedure itself. The method is instead justified by general empowerments in The Police Act (1984:387) which leave room for arbitrary decision making. Several general principles have been formulated in legislative history. However, they have never been incorporated in any law. It is impossible to claim that the current legislation of infiltration is in conformity with the rule of law. Additional legislation is most certainly necessary.