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Deputy-Ombudsman criticises criminal investigation by Border Guard

22.9.2009

Deputy-Ombudsman Jukka Lindstedt has criticised on several points a criminal investigation conducted by the Border Guard into suspicions of, inter alia, arranging illegal immigration.

Two brothers complained to the Ombudsman. One of them, a Turkish citizen, had arrived from Sweden without a passport and at a border control point presented a different person's bank card as proof of his identity. Immediately upon being detained, he had applied for asylum in Finland.

Under the Penal Code, a person who requests asylum on the ground of being a refugee will not be sentenced. Although a criminal investigation can continue in spite of the fact that asylum has been requested, being arrested for violating the frontier of the State is, in the Deputy-Ombudsman's view, a very questionable action when it is obvious that suspicion of a crime will not lead to any penalty. In this case there were, however, grounds for deprivation of liberty under the provisions of, for example, the Aliens Act.

Messages between close relatives may not be seized

The asylum seeker's brother who lives in Finland was suspected of arranging his brother's illegal immigration. In the course of the criminal investigation the brothers' mobile phones were confiscated and the text messages in them were examined. However, the Coercive Measures Act forbids the seizure of messages between close relatives. In the view of the Deputy-Ombudsman, this applies also to situations in which both are suspected of a crime. Thus the brothers' text messages should not have been appended to the protocol of the criminal investigation.

Also photographs and text messages, the contents of which had nothing to do with the matter under investigation, had been appended to the protocol. The Deputy-Ombudsman points out that, because of the confidential nature and privacy of these photographs and especially the messages, careful consideration should have been given individually with respect to each of them as to whether they were of relevance to the case, i.e. whether or not they should be appended to the criminal investigation protocol.

The Deputy-Ombudsman additionally took the view that adequate reasons had not been presented for one of the complainants not having been allowed to use a specific person as his legal adviser in the criminal investigation.

Additional information will be provided by Senior Legal Adviser Juha Haapamäki, tel. +358 (0)9 432 3334.