frsrdg · GL04JO1 · 1998-01-01 00:00:00 — What has been adduced here could suggest that the decision was made more or less deliberately without due consideration and only in order to create a formally valid basis for the sale of foodstuffs in breach of the plan. The Environmental Board could therefore be regarded as having taken unwarranted consideration (cf. below on 1.9 in the Instrument of Government) and issued the permit merely to achieve the effect desired by the applicant, without regard for the due consideration of the application demanded by statute. What has been stated above implies that in its actions the Board disregarded the regulations governing this discharge of its duties. I have considered initiating a preliminary enquiry to establish whether the members of the Board are guilty of misuse of office as laid down in 20.1 of the Penal Code. However, in view of the circumstances, including for instance the fact that the change of the plan desired by the local authority has now been achieved, I consider that it is sufficient to express the very serious criticisms I have made. In considering this case, I have not dealt with the City Architect. As I have already pointed out, this official, whose understanding of the current legislation should be at least as sound as that of the members of the Board, drew up a documentary basis for the decision which, as far as the decisive issue of deviation from the plan was concerned, was throughout irrelevant. However, the enquiry that has been carried out up to now by the Parliamentary Ombudsman has not included the City Architect in so far as no statement has been directly required of him. Now that the case has been presented to me for consideration, I have decided not to extend and therefore prolong the enquiry in that respect. Another reason is that in view of existing circumstances I consider it important not to prejudice to any greater degree than is already the case certain aspects of the deliberations of the public court in the current suit for damages. In addition to the above review of the way in which the planning application was dealt with, the initial remarks in the statement to the Parliamentary Ombudsman are singular. These say that the planning and permit application at issue has been dealt with by the local authority in full agreement with the landowner who made the application. In view of the accusation of bias made in the complaint, how this reply came to be written is very difficult to understand. had every reason to attempt to refute the assertion that its treatment of the application was not correct in this particular respect. This, however, tends rather to augment the impression that the statement in itself creates, which is that the Board in one central respect is deeply ignorant of its task as an administrative authority and what this entails according to the constitution. On this point, I would like to draw attention to the wording of 1.9 of the Instrument of Government: Courts, public authorities and others performing functions within the public administration shall observe in their work the equality of all persons before the law and shall maintain objectivity and impartiality. As there is no direct corroboration that in dealing with the case the Board acted partially in any other way than in making a decision that was in the applicants favour, the case concludes with this judgment. Criticism of the enforcement service regarding the storing of possessions recovered during an eviction in the office of a senior bailiff On 2 1993, C.A. was evicted from his apartment in with the aid of the enforcement service in the County of . The enforcement service carried out the eviction by changing the locks (using what is called the change of lock and name system). The apartment was found to contain a large quantity of personal possessions. The enforcement agency judged that some of these possessions could be distrained while the remainder were exempt. Some of the objects were in such a state that they had to be disposed of as waste. C.As landlord agreed to the property being left in the apartment until further notice. At the time, C.A. was serving a prison sentence. The enforcement service wrote to C.A. on October 8 1993 requesting him to indicate which property was of a personal nature and what was to be regarded as essential domestic equipment. did not respond to the enforcement services letter. On 3 1993, the enforcement service decided to distrain some of the property stored in the apartment to meet debts it had been requested to enforce against C.A. by both official and individual creditors. The property considered to have no value for such an execution was then to be disposed of as scrap. Some property was, however, handed over to one of C.As . In a complaint, received by the Parliamentary Ombudsman on January 2 1996, C.A. made the following allegation. In , he had visited one of the officials at the enforcement service called . On that occasion he discovered two objects belonging to him in office. One was a tool, the other a wooden figure and both were being used as ornaments in the office. When asked for its response, the enforcement service submitted a statement. Some of the information had been given to the service by , a who had retired during the autumn of 1994. He had been the officer responsible for the execution in C.As apartment. With regard to the complaint made by C.A., made the following observations. a number of years he had dealt with various cases involving C.A. What he had learned about him gave him every reason to believe that after serving his sentence C.A. would want to come and discuss the eviction and the distraint. Among the property that was to be disposed of as scrap, there were, in opinion, certain objects that could have sentimental value for C.A. He therefore removed the tool and the wooden figure so that he could later return them to C.A. He kept these objects in his office. On his retirement, this office, in which the objects were still housed, was taken over by . The enforcement service made the following statement on its own behalf. As far as the property in question is concerned, nothing can justify the belongings of a debtor, even if they have no value, in an officials office for a long period of time and in such a way that they are regarded as ornaments or furniture. had, after a brief period of time, neither collected his belongings or contacted the service, the property should have been disposed of or stored in a more suitable place, such as a storeroom or the like. Here it can be established that the way in which the property in question was treated was obviously inappropriate. This has been pointed out to the officials involved, who have now realised the error of their ways. This conduct will not be repeated. In the adjudication section of his decision issued on 1996, the Parliamentary Ombudsman, , included the following. The regulations governing evictions can be found in the Chapter 16 of the Code of Execution. In the course of an eviction, the enforcement service must first request the defendant himself to undertake the removal of his goods or to indicate a suitable place for them to be removed to. If the defendant does not comply, according to 16.6.1, the enforcement service must arrange the transportation of the property to be removed, rent premises in which it can be stored and take any other measures arising from the eviction. The enforcement service often employs third parties to store property which has to be looked after as a result of an eviction. In other cases, the service stores the property itself. According to 16.6.3, whoever stores the goods, be it the service itself or some third party, has the right to reasonable reimbursement for the storage. If the property has not been reclaimed three months after the eviction, anyone storing such property is entitled to sell it and reclaim the amount owed from the sale price or, if the property is obviously not worth selling, to dispose of it. Before property is sold or disposed of, the defendant, if he can be reached, is to be requested to retrieve his property. I share the opinion of the enforcement service that the possessions in this case, the tool and the wooden figure, were treated in an obviously inappropriate way. The enquiry has revealed that this property is now in storage in one of the services store rooms and that C.A. can of course retrieve it whenever he wants to. There is therefore no reason for me to devote any more time to the case. The question of whether a military guard detail had the right to investigate the unlocked offices and desk drawers of regular officers According to a report submitted by the guard at a military unit, during the course of a company inspection, a guard detail had discovered that a room 2 belonging to six officers was unlocked. In the top drawer two keys had been found. The detail used one of these keys to open a metal locker, in which two weapons were kept. In a complaint to the Parliamentary Ombudsman, one of the officers raised the question of whether the guard detail had the right to investigate officers private desk drawers and locked lockers. When asked for a response, the submitted a comment on the complaint. In the adjudication section of his decision of 1997, the Parliamentary Ombudsman, , included the following. The second sentence of 2.6 of the Instrument of Government guarantees every citizen protection against house searches and similar encroachments by the public authorities. The term house search as laid down in the constitution is taken to mean any inspection by a public authority of a , room or closed place of storage, irrespective of the purpose of the inspection (Government 1973:90 p. Similar encroachment is taken to mean entry which is not made for the purpose of inspection (Government 1975:67 p. The protection referred to here may, according to 2.12 of the Instrument of Government, be restricted by law or, after authorisation in law, by other statutory orders in certain defined cases. One example of a restriction of this kind which has been laid down by law is the provision in 28.1 of the Procedural Code which states that premises may be searched in the course of the investigation or examination of a crime. In the area of defence as well there is an explicit regulation which restricts freedom from house searches Article 47 of the Act on Those Subject to Discipline within Total Defence (1994:1811). This regulation has been taken without any substantial change from the earlier Act on Those Subject to Discipline, which was in force until the end of 1995. The provisions of this article are as follows. Should reason arise to assume that someone serving in the Defence Forces and subject to discipline is unlawfully carrying on his or her person an object belonging to the Defence Forces or which he or she should not otherwise possess, he or she may, if a supervisor so decides, be subjected to a body search in order to find the object. In searching for such an object, if a supervisor so decides, lockers, bags and other property owned or disposed of by the individual subject to discipline may be searched if there is reason to assume that the object is to be found there. Such searches may not be made at random or in connection with a more extensive investigation being made for specific reasons. Measures in accordance with the first or second paragraph may only take place within a military area or some other area at the disposal of the Defence Forces. It is considered that the fundamental regulations about the responsibility of a unit commander for the conduct of his unit confer upon him the right to undertake or to order inspection searches of the units premises and localities, including the specific areas made available to conscripts for their personal effects. The kind of inspections made, for instance, to check whether conscripts are maintaining their equipment in the prescribed are not covered by this paragraph. They are considered to be permitted by general principles of law (see Government 1985/86:9 p. I share this opinion. The regulations in the Act on Those Subject to Discipline within Total Defence are not intended for the kind of inspections made to check that conscripts are their equipment as they are supposed to. It must, as has been pointed out by the , be possible to make inspections of this kind in the corresponding areas for regular officers. Such inspections do not, in my opinion, constitute the kind of house search referred to in the Instrument of Government. The reason for this is that the areas that can be subjected to such inspections cannot be regarded as constituting areas which are closed to the commanding officer or the (cf. The Parliamentary Ombudsmans Annual Report 1988/89 p. It would, of course, be quite another matter if the space at the disposal of an employee at his workplace could to any extent be described as private. In this respect, I share the assessment of the that offices and other areas placed at the disposal of employees cannot, unless a special order is made, be regarded as their private space. In order to prevent actions that could be perceived by employees as encroachment of their integrity, this should be made clear in ways that leave no room for misunderstanding. Apart from this observation, no further statement is required from me in this case. har hänvisat till i dess lydelse före .