Detention of Non-Citizens Suspected of Future Terrorist Crimes: A study of the relationship between preventive security detention in Swedish immigration legislation and fundamental principles of justice and the rule of law

Abstract: The thesis examines the relationship between the detention regime in the Special Controls of Aliens Act (SFS 1991:572, SCAA) and the right to personal liberty and security; the presumption of innocence; and the principle of legality. The aim is to assess whether the legislation is a suitable counter-terrorism measure from a rule of law perspective. The thesis also aims to place the SCAA in an international context, and it therefore examines how the detention rules relate to the international academic discourse on preventive security detention of suspected terrorists. Further, the thesis compares the conditions for detention according to the SCAA to detention as part of criminal procedure, in order to examine whether the decision to place counter-terrorism rules in migration law rather than criminal law has resulted in a weaker protection of individual procedural rights. The SCAA enables expulsion of aliens who constitute a threat to national security or who it can be feared will in the future commit a crime of terrorism. The alien may be detained pending deportation. The thesis finds that the conditions for detention according to the SCAA differs from detention in a criminal law context in mainly three ways: i) the prerequisites for detention are less precise, ii) the standard of proof is lower, and iii) the procedural protection is less extensive. An effect of this is that the protection of personal liberty, the presumption of innocence and the principle of legality is significantly weaker than in criminal law. In spite of this, it appears that the SCAA does not violate the articles in the European Convention on Human Rights that protect the three aforementioned principles. The primary reason for this is that since the legislation belongs to administrative law, it falls outside the scope of the articles. In the thesis it is argued that since the legislations’ primary purpose is crime prevention this is a circumvention of the Convention, and that the fact that this renders the practical protection of individual rights significantly weaker than it would have been in criminal law implies that the solution is undesirable from a human rights perspective. The SCAA can also be criticized because it is discriminatory as it only applies to non-citizens, and because it fails to fulfill its purpose of ensuring that presumptive terrorists cannot reside freely in Sweden. The latter is an effect of the fact that that many of the persons the Act is intended to be applied to cannot be deported due to risks of persecution in the receiving country, and that the ECHR does not permit continued detention in this situation. As an alternative to the current legislation the thesis recommends and examination of the merits of exclusively dealing with terrorism suspects through criminal law, which would mean an increased protection of individual procedural rights while also decreasing the risk that decisions which are necessary for security reasons cannot be enforced.