frsrdg · GM04JO1 · 1999-01-01 00:00:00 — If there is reason to believe that an offence has been committed for which the penalty may be a prison sentence, according to 28.11 of the Procedural Code anyone suspected of the crime on reasonable grounds may be physi-cally searched in order to look for objects that can be seized or to examine other circumstances that may be of significance in investigating the crime. According to 28.12 of the Procedural Code, anyone suspected on reasonable grounds of a crime for which the penalty is a prison sentence may also be subjected to a physical examination. The reference in 28.13 of the Procedural Code to 28.4 of the same statute makes it clear that, as a rule, the decision to undertake a physical search or examination should be made by the officer in charge of the investigation or by the prosecutor. Only when delay could prove detrimental may such a measure be undertaken on the decision of an individual officer. Stipulations regulating the right of officers to use force in the execution of their duties are to be found in Article 10 of the Act (1984:987). In the event of other procedures proving inadequate it is, with reference to the circumstances, justifiable for a officer to use force under the specific conditions laid down in the article. According to 10.4.1 a officer may, for instance, use force to carry out a physical examina-tion. The following paragraph stipulates, however, that one condition for the use of force for such a purpose is that the officer has encountered resistance. The action against E.M. was based on the assessment that there were reason-able grounds for suspecting him of a narcotics offence. As has been pointed out in a number of decisions from the Parliamentary Ombudsman previously, in order for a person to be suspected of an offence on reasonable grounds concrete circumstances must exist which, considered objectively, indicate with some degree of cogency that the individual concerned has committed the deed that the suspicion concerns. It is impossible to establish any more definite guidelines as to when suspicion can be considered to be reasonable. This is something that has to be decided from case to case, which naturally allows scope for different assessments. In my opinion, the circumstances in this case were not of such a nature that I can find grounds for criticism of the officers in connection with their assessment that E.M. could reasonably be suspected of a narcotics offence. has my enquiry yielded any basis on which to criticise them for appraisal that delay could be harmful as far as the physical examination was con-cerned. In view of the fact that carrying out the physical search was not considered so urgent that it could not wait until E.M. had been taken to the station, however, it is not obvious that delaying a decision to undertake this measure would have compromised their investigation (cf. the Parliamentary Ombudsmans Annual Report 1993/94 p. As it is not absolutely clear what the legal situation is with regard to a officers right in cases like this to detain an individual while awaiting the decision of the officer in charge of the investigation or to take the individual somewhere where this decision can be made, I do not, however, feel that I am able to criticise the officers for the way in which they dealt with the question of the physical search. As I have maintained in my written response to the final report of the Commission of Enquiry into (SOU 1995:47) Coercive Measures as laid down in Chapters 27 and 28 of the Procedural Code and the Act, the lack of clarity referred to should be eliminated by a special provision in Chapter 28 of the Procedural Code empowering a officer to detain individuals in situations of this kind (cf. p 175 f. in the final report). As has been asserted in the written rejoinders, the measures adopted by the officers with regard to E.Ms oral cavity must be considered to constitute physical examination. The issue to be assessed in this respect is whether there is any legal basis for carrying out a physical examination in the adopted here. The officers have denied that they took a "stranglehold" of E.M. Their own account reveals, however, that after had gripped E.Ms hands, took hold of his jaws and at exactly the same time told E.M. to open his mouth. The reason for this procedure was to prevent E.M. from swallowing any narcotics he may have had in his mouth. memorandum states that the method which has to be used to procure evidence in cases like this involves detectives taking a grip of a suspects head and forcing his jaws apart. In their rejoinder, the authorities express the opinion that the procedure adopted in this case does not constitute the use of force. On the other hand, they are of the opinion that taking such action outdoors as described in memorandum would be in conflict with the principle of proportionality, whereas have the opposite opinion on this issue. The protection guaranteed by the Instrument of Government against enforced physical violation involves first and foremost protection from actions of the kind that are punishable as assault according to the Criminal Code, or in other words that cause somebody physical injury, illness or pain, deprive them of autonomy or place them in some similar condition. How-ever, this protection also covers every other form in which force is used against an individual. For this reason considered, for instance, that there should be legislation on the use of force by the (Govt. The fact that the powers of officers to use force in the execution of their duties fall within the areas protected by the constitution is also pointed out by the 1973 Commission of Enquiry into Rights and Liberties (SOU 1975:75 p. officers - disregarding the special situations referred to in Chapter 24 of the Criminal Code - may not therefore use force except under the condi-tions defined in Article 10 of the Act. No scope is allowed for the use of force outside the areas laid down in the statutes (SOU 1982:63 p. The accepted interpretation of force against the individual in includes, for instance, slight or more forceful contact with another person with the hands, feet or the whole body, such as pushing, grabbing or holding someone fast (see , När och hur får polisen ingripa? [When and how are the allowed to act?]) 274, SOU 1975:75 p. 364 and SOU 1982:63 p. In my opinion there can be no doubt that an action by officers which involves taking a grip of an individuals hands and jaw in order to force him to act in a particular way or prevent him from doing so constitutes force against the individual as it is meant in Article 10 of the Act (cf. the Parliamentary Ombudsmens Annual Report 1993/94 p. We are dealing, in actual fact, with the question of serious infringement of the physical integrity of an individual. One of the conditions on which a officer is able to use force in connection with a physical examination is, according to the provisions of the second paragraph of Article 10 of the Act, that he "encounters resistance". This expression, on the basis of the normal use of language today, can only be interpreted as meaning that this resistance must have manifested itself in some way. A officer may not, therefore, use force in order to counter expected resistance. In this context, special note should be made of the care with which the statutes make it clear in the Act when actions against an individual may be based in advance on expected behaviour. For instance, 10.1.1 of the Act empowers a officer to use force not only when he encounters resistance but also when faced with the threat of violence. In addition, the provisions of Article 13 explicitly empower a officer to act not only against individuals disturbing the public order but also those who constitute an immediate threat to public order, and the legislation uses the term avert to denote that a officer may act both to stop a crime that is being committed and also to prevent a crime that is about to be committed (Govt. 1983/84: 111 p. It should further be observed that the danger in the situation referred to in Article 13 must be concrete. The assessment of risk must therefore be based on the individual behaviour of those against whom actions are directed (, Polislagen [The Act], 2nd. The concept of resistance used in Article 10 of the Act must be considered to have a relatively wide range of reference. Resistance means not only resistance involving the use of force - situations of this kind are already covered by the regulations in 10.1.1 - but also what is described as passive resistance, when, for instance, somebody digs their heels in or uses the weight of their limp body to make it impossible for a officer to take them into custody (Govt. 1983/84:111 pp. 94 & 97). Furthermore, 10.1.2 makes it clear that if somebody who is about to be apprehended attempts to escape, this is also to be considered as a form of resistance. If the provisions on the right to use force in performing physical searches and examination are to have any substance, it must be possible to regard a refusal even to co-operate by the person subject to these measures as passive resistance. If a physical examination, as in this case, concerns the suspects oral cavity, from this perspective officers will have the right to use force if the suspect refuses to open his mouth when asked to do so. However, it is in the nature of things, as stated in the opening section of 10.1 of the Act, that the suspect must be given a proper chance to comply with the request and that force may not be invoked until it becomes clear that he refuses to co-operate. As has already been pointed out, the legislation does not, on the other hand, permit officers to use force when, even though it can admittedly be assumed that the suspect is not going to follow their instructions, no action or other behaviour by the suspect that can be described as resistance has yet occurred. In the case under review here, the officers took forcible measures against E.M. that consisted of taking hold of his hands and jaw in order to examine whether he had narcotics in his oral cavity. It is not entirely clear at what stage of events E.M. was told to open his mouth. What has said, however, suggests very strongly that this was in immediate connection with his taking a grip of E.Ms jaw. In this context, it should be mentioned that if the procedure described in this enquiry is to be successful an element of surprise is necessary, which makes it impossible to give the suspect the opportunity to co-operate in the physical examination of his own free will, as this would also enable him to swallow the narcotics in his mouth. I consider, therefore, that the force was used on the basis of expected resistance rather than to overcome resistance already encountered. As has been made clear in the foregoing discussion, such a course of action does not comply with the regulations in Article 10 of the Act. In view of this, there is no reason for me to consider the question of whether the actions against E.M. were in conflict with the principle of proportionality. The contents of memorandum about the problems faced by the and about the procedures to be used in situations of this kind should be considered in the light of what points out in its rejoinder about the high priority the government to give to combating narcotics offences. As has been made clear above, what characterises the actions that have been considered in this case, is that the want to be able to examine a suspects oral cavity in a way that makes it impossible to swallow any narcotics that may be concealed there. It can be assumed that this particular problem is not one envisaged by the legislators. However, this does not mean that it is obvious that, had this been the case, they would have been prepared to permit the use of force in the way described here. In this context there are good reasons to draw attention to the National Boards observations about the risks associated with the method used. The principle of legality means that an authority - irrespective of what it may believe about the necessity of a course of action - may not apply a regulation in a way that extends the area covered by the application in practice beyond that intended in the wording of the legislation and the travaux préparatoires. In this context, I would like to recall a pronouncement by the Supreme Court (Case NJA 1996 p. 577) that when the regulation concerned is one that involves an exception from rights guaranteed by the Constitution, there is particular reason to be restrictive in how it is to be interpreted (p. If an authority makes the assessment that the provisions regulating its activities are inadequate in some respect it should draw this circumstance to the legislators attention so that a standpoint can be adopted about the legislative measures that may be needed. What has otherwise come to light gives no reason for action on my part. The observations I have made in this case are of such a nature that I find good reason to submit a copy of this adjudication to . The question of revealing a diagnosis in the judgment of a court In a letter to the Parliamentary Ombudsman, . complained that a County Administrative Court had divulged a diagnosis of his condition in its judgment, maintaining that in so doing the court was in breach of the Secrecy Act (1980:100) and that he had been defamed. The following formed part of the adjudication issued by the Parliamentary Ombudsman, . Lavin, on January 8, 1998. Article 12 of the Secrecy Act contains special provisions regarding secrecy and the courts, etc. The first paragraph of 12.1 states that if, in the exercise of its judicial powers, a court acquires from another court or other public agency information that is confidential, it is to maintain this confidentiality. In the same Act, the first paragraph of 12.3 makes it clear that this confi-dentiality no longer applies in a case or issue if the information is presented in a public court hearing while the court is exercising its judicial powers. The second paragraph of the same section states that if the confiden-tial information referred to in the previous paragraph is presented during a hearing in camera, its confidentiality is to be respected during the remainder of the hearing unless the court appoints otherwise. Once the court has completed its hearing of the case or issue, the information will only remain confidential if the court has so ordained either in its judgment or in a separate decision. According to 12.4.1 the confidentiality of information in a case or issue subject to the judicial powers of a court ceases to exist if this information is included in a judgment or other decision regarding the case or issue in question. The following paragraph lays down that this provision is not to apply if the court has prescribed such confidentiality in a judgment or separate decision. Confidentiality cannot be prescribed for a judgment or the corresponding section of any other decision except when required by inexorable regard for the safety of the realm or some other interest of overriding importance. Article 30 of the Administrative Court Procedure Act (1971:291) lays down that the findings of a court are to be based on the contents of the hearing and anything else that may have come to light in the case. Its judgment is to present the reasons on which its findings are based. As the County Administrative Court has stated in its response to the complaint, Article 30 of the Administrative Court Procedure Act requires that a judgment should be formulated so that, for instance, the reasoning leading to the findings is made clear. Only if this reasoning is openly accounted for can an individual see how the court has sifted and evaluated the relevant facts in making its decision and how these facts have been assessed according to the laws that apply. An informative opinion can either convince an individual that the decision is a correct one or provide her or him with the basis of an appeal. Public confidence in the competence and objectivity of the courts requires them to be able to show that their decisions are well grounded. As has already been made clear, courts do have the possibility of stipulating that the reasons for a judgment remain secret (the Secrecy Act 12.4.2). In the travaux préparatoires of the Secrecy Act (Govt. 1979/80:2 p. 102) attention is drawn, however, to the importance of the public being afforded as much insight as possible into the activities of the courts. From this point of view, there is good reason for the findings of courts to be as public as they can be. At the same time, however, it must be borne in mind that taking the principle of public access too far in this context may be detrimental to public or private interests. On the other hand, for a court to omit on the grounds of secrecy more detailed discussion of certain circumstances that are of significance in a case could, in its turn, give rise to an inadequate perception of the reasons for the adoption of a particular standpoint. In addition, it is stated (p. 309) that the courts are to be free to decide whether to give greater weight to the principle of public access or to confidentiality. The scope afforded to the courts to make such a decision in individual cases corresponds to the scope they are given in deciding whether a hearing is to be public or in camera. It must be presumed that the courts are restrictive when it comes to declaring judgments and decisions secret. When, as in the case in question, during a hearing in camera confidential information is presented about an individuals condition or other personal circumstances, and the judgment has not been declared secret, restraint must be exercised in referring to information which is not needed to comply with the demands of Article 30 of the Administrative Court Procedure Act. It is not always necessary to disclose a diagnosis that could be regarded as being detrimental for the individual in order to clarify how the court has reached its findings. In the judgment in this case the diagnosis is referred to explicitly in three instances. Two of them form part of the account of the testimony of the and Y. during the court hearing, which took place in camera. In my view, there was no obvious need to divulge the diagnosis. It would have sufficed to state that Y. considered that the diagnosis was erroneous and that he did not consider himself to be suffering from any mental illness. The third reference to the diagnosis is in the first sentence of the County Administrative Courts own assessment. There the County Administrative Court even confirms the diagnosis with the words: "Even if Y. has maintained that the diagnosis is wrong and that he is completely well, nothing has been shown other than that Y is suffering from . which needs to be treated with drugs." In my opinion, the County Administrative Court could easily have avoided specifying the diagnosis and still been able to make its own opinion clear. It could, for instance, have used a wording like: "Nothing has come to light in this case to support any opinion other than that Y. is suffering from the disease diagnosed by the ." I would like to emphasise how important it is that the diagnosis of illnesses, especially mental illnesses, should only be reported in judgments when this is absolutely necessary. Even if it is my opinion that the judgment in this case could have been worded with considerably more consideration for the patient than was in fact the case, I am nevertheless not prepared to express criticism of the County Administrative Court. Here, I am taking into account the fact that the inclusion of diagnoses in judgments has not pre-vio-usly attracted a great deal of attention on the part of the Parliamentary Ombudsman. Whether a public library had the right to refuse to lend an individual certain books because of his reason for wanting to borrow them V. had requested that the Parliamentary Ombudsman should examine the rules for lending imposed by a commune public library. He also raised the question of whether the library was registering political opinions. In his adjudication of January 9 1997, the Parliamentary Ombudsman, . Lavin expressed the following opinion. Up until January 1 1997 no legislation existed with regard to public libraries, apart from certain regulations concerning government grants. On January 1 1997 the Library Act (1996:1596) came into effect. The Library Act contains certain fundamental regulations about public libraries. No detailed provisions about how communes are to organise and manage library services have been laid down. There could well be reason to point to some of the regulations of relevance for this case in the Library Act. Article 2 stipulates that every commune is to have a public library and Article 7 lays down that this is one of the services for which communes are to be responsible. Public libraries are to allow the general public to borrow printed works for a certain length of time (Article 3). Article 10 stipulates that the county libraries, book depositories, univer-sity libraries, research libraries and other libraries financed by the state are to make printed works from their collections available to the public libraries free of charge and that they are otherwise to co-operate with public libraries and school libraries and assist them in their endeavour to provide borrowers with good library services. When the events referred to in this complaint occurred, the Library Act had not yet come into force and there was no other legislation that governed the activities of public libraries. It can, however, be established that even since the Library Act came into force, there are no statutes that govern the activities of public libraries in detail. Even today, there are no stipulations about the obligation of a public library to provide written works of a specific nature, insofar this should be of interest, or to arrange inter-library loans. The supervisory powers of the Parliamentary Ombudsman primarily involve ascertaining that those who exercise public authority comply with the law and other legislation and that they otherwise fulfil their obligations. In addition, the Parliamentary Ombudsman is to exercise discretion in expressing opinions on issues that lie within the competence of the elected councils of the communes, to which library services for the most part pertain. An important task for the Parliamentary Ombudsman is to ensure that courts and administrative agencies adhere to the Constitutional requirements of objectivity and impartiality and that the fundamental rights and liberties of citizens are not encroached upon by the state - Article 3 in the Act with Instructions for the Parliamentary Ombudsmen (1986:765). It is principally in the light of this last provision that I have undertaken my examination of this case. Chapter 2 of the Instrument of Government contains stipulations about the fundamental rights and liberties of citizens. One of the provisions of the first paragraph of Article 1 is that the state is to guarantee each citizen freedom of information, described here as the freedom to obtain and receive information and otherwise acquaint oneself with the utterances of others. This provision guarantees freedom of action for each citizen when it comes to receiving information provided from different quarters. On the other hand it does not imply any obligation for the state to provide information. (See and Ragnemalm, grundlagar och tillhörande författningar med för-klar-ingar [Statutes with Explanations], 1980, p. The provisions about freedom of information in 2.1 of the Instrument of Government cannot, as has been shown, provide a basis for considering that a public library is obliged to make all of its books available to the public.