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Court security checks must not jeopardise protection of privacy

Parliamentary Ombudsman of Finland Petri Jääskeläinen takes the view that medicines which it is prohibited to possess can be confiscated from a person arriving in court. However, it must be ensured that information within the sphere of protection of privacy is not divulged to outsiders.

The action of a security guard in the Helsinki District Court was criticised in a complaint received by the Ombudsman. The guard had noticed a package of medicine in the complainant's bag and asked questions that, in the complainant's opinion, were a violation of privacy. According to the complainant, another person undergoing a security check overheard the conversation about the medicine.

The Ombudsman does not regard as appropriate the generalising interpretation adopted by the District Court as to what medicines it is forbidden to possess.   

Other questions relating to regulation of security checks and the method of conducting them were also highlighted in the case.

A medicine as a dangerous or prohibited substance

According to the law, security guards in courts have the right to check persons arriving in the court or already there and their belongings.  The intention with this is to ascertain that a person is not carrying a dangerous object or substance. A security guard has the right to confiscate not only a dangerous object or substance, but also an object or substance the possession of which is prohibited.

Ombudsman Jääskeläinen notes that the relevant Act does not provide a detailed answer to the question of what substances are dangerous or prohibited; instead, the contents of these concepts are open to interpretation. Pharmaceutical products are not mentioned as dangerous or prohibited substances in the Security Checks Act.

Several medicinal substances can be dangerous if consumed in excessive amounts. However, it does not, in the Ombudsman's opinion, necessarily follow from this that a substance can "endanger security or order".

The Security Checks Act does, however, refer very broadly to all prohibited substances. Based on the wording of the Act, the Ombudsman did not deem it unlawful to confiscate medicines in a security check if what is really involved is a substance the possession of which is prohibited.

Errors in district court guidelines

In Ombudsman Jääskeläinen's view, the district court policy of regarding all medicines that act mainly on the central nervous system (CNS drugs) as prohibited or dangerous substances is too absolute and generalising.  A medicine of this kind is not necessarily a narcotic and its possession is not prohibited even if it has been obtained without a prescription.

The Ombudsman takes the view that the guidelines published on the district court's web site refer to an outdated list of medicines. In addition, only a part of the list refers to medicines that contain narcotic substances.

The district court guidelines are also imprecise and contain factual errors.  It is stated in them, for instance, that possession of substances would, according to the Act, be prohibited without a valid prescription. This is not correct with respect to those CNS drugs that are not narcotics.

A security check must not jeopardise the publicity of a trial or protection of privacy

The Security Checks Act does not make it possible to ask that personal data be provided. However, a person's identity can be revealed through an enquiry about a prescription.

It must a priori be possible to follow a public trial anonymously. Ombudsman Jääskeläinen considers it essential that if personal data are revealed in the course of a security check, they must not be given nor mediated to others. With this prerequisite, a security check can elicit personal data without this being prohibited on foot of the principle of publicity of a trial.

In a security check, attention must be paid to the space where the check is conducted and it must be ensured that information belonging to the sphere of protection of privacy is not divulged to outsider parties.

The internal layout of a court or shortcomings in this respect do not justify a security check being conducted in a way that violates the constitutionally guaranteed right to privacy.

A guard must state his or her full name

In addition, the Ombudsman took the view that a security guard had acted wrongly when he refused to tell the complainant his full name, because the complainant had not asked him to show his official identity card. In the Ombudsman's view, this can not be demanded, instead, asking the name must be sufficient.

Ombudsman Jääskeläinen has informed the Helsinki District Court and the security guard of his opinion. In addition, a copy of the decision has been sent for information to the Ministry of Justice for it to assess the necessity of measures. The Ministry of Justice has been asked to inform courts of the decision.

The Ombudsman has asked the district court and the Ministry of Justice to inform him, by the end of the year, of what measures the matter may have led to.

Additional info will be provided by Legal Adviser Pasi Pölönen, tel. + 358(0)9 432 3345.