frsrdg · GM04JO1 · 1999-01-01 00:00:00 — kritik mot i handläggningen av ett förmynderskapsärende. Fråga om vård av omyndigs rätt i oskiftat bo samt om förteckning och slutredovisning enligt 16 kap. 94/95:495 förordnande om sekretess i ett förmynderskapsärende 95/96:423 handläggningen av ett ärende om byte av förvaltare, bl.a. fråga om myndighets serviceskyldighet 95/96:418 kritik mot en i handläggningen av ett förmynderskapsärende 95/96:425 handläggningen av yrkanden om arvode till en förvaltare enligt föräldra- balken, bl.a. fråga om skyldighet att kommunicera arvodesyrkanden med huvudmannen 96/97:409 kritik mot en överförmyndare för brister i tillsynen över en god mans förvaltning 96/97:412 kritik mot i handläggningen av ett ärende rörande tillstånd till kapitalplacering 96/97:418 fråga om överförmyndares skyldighet att lämna över slutredovisning då godmanskap upphört 96/97:423 fråga om kanslichefs vid överförmyndarnämnd uppdrag som god man m.m. 96/97:425 fråga om ledamots eller ersättares i överförmyndarnämnd uppdrag som god man eller förvaltare 96/97:428 kritik mot att meddela beslut med anledning av en begäran om att få ta del av allmänna handlingar. Även fråga om brev till ledamöter i överförmyndarnämnd utgör allmänna handlingar m.m. 96/97:461 fråga om utlämnande av allmänna handlingar i ett godmansärende 96/97:466 handläggningen av en god mans begäran om tillstånd till försäljning av huvudmannens fastighet 97/98:474 underlåtenhet av överförmyndarnämnd att inhämta yttrande från huvud-mannens närmaste släktingar över en begäran av en god man om tillstånd till försäljning av en fastighet 97/98:480 fråga om de rättsliga möjligheterna för en överförmyndarnämnd att vidta åtgärder med anledning av avtal om fastighetsförsäljning 97/98:483 kritik mot en i de administrativa rutinerna vid registrering m.m. av handlingar 98/99:448 uttalanden om skyldigheten för förordnade förmyndare, gode män och förvaltare att avge redovisning på heder och samvete 98/99:451 skattemyndighet har inte uppfattat en skrift som överklagande 95/96:234 handläggningen av ett överklagande när det överklagade beslutet förkommit hos socialförvaltningen 96/97:298 handläggningen vid en länsstyrelse av tre överklagningsärenden rörande dispens från krav på betesgång för mjölkkor har befunnits strida mot förvaltningsrättsliga föreskrifter och grundläggande förvaltningsrättsliga principer 96/97:356 kritik mot skolledning för brister i handläggningen av ett ärende angående uttagning av elever till undervisning i särskild undervisningsgrupp 96/97:372 kritik mot en tingsrätt för handläggningen av ett överklagande av överförmyndarnämnds beslut 97/98:77 kritik mot en polismyndighet för dröjsmål med förordnande av offentligt biträde för förvarstagen utlänning m.m. 97/98:266 fråga om en nämnds handläggning av ärenden om tillstånd för automatspel; bl.a. fråga om nämnden medvetet tillämpat en författnings-bestämmelse felaktigt och sålunda uppträtt illojalt mot tillståndssökande 98/99:453 fråga om en miljö- och byggnämnds handläggning av dels en ansökan om förlängning av parkeringstillstånd för rörelsehindrad, dels en skrivelse med överklagande 98/99:443 kritik mot en handläggning av ett överklagande 98/99:436 rutinerna vid en barn- och utbildningsnämnds handläggning av ansök-ningar om antagning till gymnasieutbildning (gymnasial vuxenutbildning) i annan kommun; framställning till regeringen med förslag till översyn av viss reglering i skollagen (1985:1100) 96/97:386 fråga bl.a. om polismyndighet haft stöd i lag för sin åtgärd att till ett vaktbolag överlämna vissa förvaltningsuppgifter 97/98:173 polismyndighets genomförande av en övning 95/96:116 The Swedish Parliamentary Ombudsmen Report for the period 1 1997 to 30 1998 During the period covered by the report, the following have held office as Parliamentary Ombudsmen: Mr. , who is Chief Parliamentary Ombudsman, . (since 1 1998). During the vacancy due to Parliamentary Ombudsman decease in 1997, the Deputy Ombudsman has worked as acting ombudsman between and 28 February 1998. has supervised the courts of law, the public prosecution service and the , while Mr. Pennlöv has dealt with matters concerning the prisons, the armed forces, taxation, customs, the execution of judgements, social insurance and chief guardians. have supervised the fields of social welfare, public health and care and immigration. A number of cases in this area have been handled and decided by Deputy Ombudsman . Lavin, finally, has been responsible for the supervision of the administrative courts, and construction, immigration, environmental protection, farming and protection of animals, labour market, the State Church and all additional aspects of civil administration not supervised by any other Parliamentary Ombudsman. During the year, 5 003 new cases were registered with the Ombudsmen; 4 885 of them were complaints and other cases received (an increase by 45 compared to the number of cases received during the previous year) and 118 were cases initiated by the Ombudsmen themselves on the basis of observations made during inspections, of newspaper reports or on other grounds. It should be noted that the schedules overleaf show cases concludedduring the period, not all cases lodged. This summary also comprises full reports of some of the cases dealt with by the Ombudsmen during the period. Schedule of cases initiated by the Ombudsmen and concluded during the period 1 1997-30 1998 Closed without final critisism Admonitions or other criti-sism Prosecutions or disciplinary proceedings Referred to other agencies or state organs Proposal to Parliament or to the Government Total Courts 7 9 1 - - 17 Public prosecutors 1 1 - - - 2 authorities 4 5 - - - 9 Armed forces 2 1 - - - 3 Prison administration 2 3 - - - 5 Social welfare 1 8 - - - 9 care 1 - - 1 - 2 Social insurance 2 3 - - 2 7 Execution of judgements 1 1 - - - 2 Education, culture 4 3 - 1 - 8 Customs 1 - - - - 1 Environmental management, public health, protection of animals - 1 - - 1 2 Planning - 1 - - - 1 County Boards - 1 - - - 1 Labour market etc. - 2 - 1 1 4 Chief guardians 1 2 - - - 3 Foreign affairs - 1 - - - 1 Local government - 1 - - - 1 Access to official dom of the press 1 1 - - - 2 Total 28 44 1 3 4 80 Shedule of complaint cases concluded during the period 1 1997-30 1998 Activity concerned Dismissed without investiga-tion Referred to other agencies or state organs No critisism after investigation Admonitions or other critisism Prosecutions or disciplinary proceedings Preliminary investigation; no prosecution Total Courts of law 63 - 174 14 - - 251 Administrative courts 81 - 45 6 - - 132 Public prosecutors 58 6 122 21 - 1 208 authorities 228 16 254 33 1 1 533 Armed forces 17 - 4 3 - - 24 Prison administration 217 2 159 32 - - 410 Social welfare 281 15 470 97 - - 863 care 116 7 86 13 - - 222 Social insurance 213 - 116 60 - - 389 Labour market etc. 63 4 33 13 - - 113 Planning 88 - 13 10 - - 111 Execution of judgements 69 - 55 16 - 1 141 Local government 51 1 9 8 - - 69 Communications 79 1 20 10 - - 110 Taxation, customs 85 1 65 20 - - 171 Education, culture 59 2 97 19 - - 177 State Church 7 - 6 1 - - 14 Chief guardians 13 - 9 2 - - 24 Agriculture, environ- mental management, public health, protection of animals 74 - 41 19 - - 134 Immigration 57 - 35 7 - - 99 Other cases at County administrative boards, control of lotteries e.a. 36 - 7 7 - - 50 Employment of civil servants etc. 72 - 16 9 - - 97 Access to official documents, Freedom of the press 115 2 107 92 - - 316 Miscellaneous 65 - 17 8 - - 90 Complaints outside meaning 91 - - - - - 91 Total 2 298 57 1 960 520 1 3 4 839 The unlawful use of force in carrying out a physical examination in connection with a suspected drugs offence A complaint was submitted to the Parliamentary Ombudsman by E.M. against the authorities in the County of about the way in which he had been treated. He reported that on 9 1996 he had been stopped by two plain-clothes policemen in Åhléns department store in , whereupon one of the officers had put a stranglehold on him and told him to open his mouth. He was then taken to a station, where a physical search took place. The case was referred to the authorities in the County of so that they could investigate the circumstances and submit a written rejoinder to the contents of E.Ms complaint. Among the documents attached to the rejoinder from the authorities (Deputy Commissioner ) were a memorandum from Superintendent , the head of the Street , and the report of the enquiry. During the enquiry, Sergeants and had been interviewed. These interviews made it clear that E.M. had been suspected of a narcotics offence. reported that he had grabbed hold of E.Ms hands, identified himself as a officer and told him to open his mouth. He also said that E.M. did not open his mouth at all except when he was talking, and that was the only time. said that he grabbed hold of E.Ms chin and that he believed that as he did so told E.M. to open his mouth. was unsure whether E.M. had opened his mouth before being told to do so. From the interviews it was clear that the reason for adopting this course of action was to prevent E.M. from swallowing any narcotics he may have had in his mouth. The officers also reported that because of the resistance offered by E.M. it was impossible to carry out a physical search there and then, so that he was taken to a nearby station where the search took place. No narcotics were discovered. One of the comments made by was the following. In assessing the risk involved in delay and whether a physical examination - inspection of the oral cavity - may be justifiable, the following can be borne in mind. For some years buyers and sellers, particularly in central , have had a tendency to conceal narcotics in their mouths. The transfer from seller to buyer takes place in a flash. Centre have filmed transfers like this from mouth to mouth. Uninitiated may have difficulty in perceiving the transfer even when the film is played in slow-motion. If officers intervene at such a moment, the culprit swallows the narcotics leaving the with no evidence of any crime. In different contexts, the in particular have appealed, in vain, for a change in the legislation that would enable a "swallower" to be stomach-pumped on the basis of a decision by a prosecutor. Unfortunately this proposal has come to nothing. Surveillance officers are obliged, therefore, to grab hold of a suspects head and force his jaws apart in order obtain what evidence may exist. This is the background against which the officers examination of the complainant must be considered. One of the points made by was the following. is mistaken about the date on which these events occurred. It was on 1996 that the took action against E.M. On , Sergeants , , and had been assigned to deal with narcotics offences in central . None of the officers was placed in charge of the other policemen. According to the provisions of the Ordinance, therefore, was the senior officer. During a long period E.M. was kept under observation in the central underground station together with several other known drug-pushers. He was also involved in several "sales-situations". At 1 p.m., Bülund was informed by an individual that a Gambian had been seen on the platform of one of the underground lines selling narcotics in capsules. The Gambian was described as being dressed in black clothes, except for blue jeans, about 1m 80 tall, with a black rucksack. Shortly afterwards, E.M. together with V.A. The latter individual has previously been reported for narcotics offences. The officers maintained observation of E.M and V.A for about 10 minutes outside Åhléns department store on . During this period V.A. touched the waistband of his trousers, and adjusted it. He also examined the waistband several times. On the basis of these observations and other circumstances, the officers came to the conclusion that there were grounds for suspecting V.A. and E.M. of being in possession of narcotics. decided that V.A. should be searched physically on suspicion of a minor narcotics offence. The search, which took place at the northern end of the central underground station at 1.15 p.m., disclosed 5 Rohypnol tablets and a Swiss knife. was questioned there and then by and told that he was suspected of a minor narcotics offence and an offence against the Knife Act. He admitted the offences and said that he was willing to accept a summary fine. When the questioning was over at 1.45 p.m., V.A. Jarevik decided that E.M. should undergo a physical search as he was suspected of the offence of being in possession of narcotics. E.M. became violent when he was apprehended by the officers on the street close to the escalator that leads down to the northern end of the central underground station. Jarevik and Bülund were obliged to apply a "transport" hold. The search could not be carried out on the street because E.M. was violent and Jarevik and Bülund therefore had to take him to the station at the northern end of the central underground station. A search was carried out but no narcotics were discovered. E.M. was allowed to leave the station as soon as the search was completed. E.M. was not questioned as no narcotics were found on him. On 1996, a charge sheet was drawn up, K 238584-96, for a narcotics offence concerning possession and an offence against the Knife Act. The charge sheet stated that there were reason-able grounds for suspecting E.M. and V.A. of a narcotics offence. In addition, a record was made of both the searches and the items confiscated from V.A. On 1996, the officer in charge of the investigation, Inspector , confirmed the confiscation. On the same day, decided to terminate the investigation as far as E.M. was concerned with the justification "suspect innocent". The assessment of the authorities One of the things that is clear from the enquiry is that the officers involved deny that they placed a "stranglehold" on E.M. As regards other matters as well, it is word against word about what transpired in connection with the actions of the officers against E.M. It is not likely that further investigation would lead to any clarification of the matter. The officers suspected V.A. and E.M. of being in possession of narcotics after a long period of surveillance. In addition, one of the officers had been informed that someone who looked like a Gambian, of whom a description was given, had been selling narcotics in capsules in the central underground station. His description fitted E.M., and other observations led the officers to decide to search both E.M. and V.A. The officers intended to conduct physical searches of V.A. and E.M. in some out-of-the-way spot near where they were apprehended. This is also what occurred in the case of V.A. The officers were obliged to take E.M., who became violent, to a station close by in the underground station. After the search E.M. was allowed to leave. It is impossible to lay down definite guidelines as to when reasonable grounds of suspicion exist. This must be decided from case to case. Obviously this leaves some scope for different assessments. When the officers began their physical search of E.M. at the underground station, delay might have jeopardised their investigation. This could of course not have been the case at the station. As they had started to perform the physical search outside the station, the officers were correct to complete it as soon as possible. To sum up, the authorities did not consider that the officers concerned were guilty of any offence or misconduct in connection with their actions towards E.M. The case was referred back to the authorities in the County of for enquiry and response on the following points: What legal basis was there for the use of force to make open his mouth? Was E.Ms oral cavity inspected, and if so what legal basis was there for such a measure? What occurred in the station during what has been described here as a physical search? Attached to the rejoinder based on the enquiry conducted by the au-thorities (Deputy Chief Commissioner ) were notes that had been made during an interview with . It became clear from these notes that when action is taken against suspected narcotics pushers the element of surprise is important; that if the suspect is believed to have narcotics in his mouth, his jaw is gripped from in front so that the thumb rests on one cheek and the other fingers against the other; that this grip involves very minor force that cannot injure the suspect; and that these procedures were used in the case of E.M. The authorities rejoinder contained the following comments. When the officers take a grip of a suspected pushers hands or his jaw, in both cases the purpose is to secure evidence of the suspected narcotics offence. When an individuals jaw is gripped, the intention is not to open his mouth with force but to surprise the suspect into spitting out the narcotics hidden there. As has been made clear above, no violence was used to make open his mouth. Jarevik took a grip on E.Ms jaw in order to stop him from swallowing the narcotics that the officer suspected were concealed in his mouth. The officer did not examine E.Ms oral cavity. When E.M. opened his mouth on being told to, it is not unlikely that the gaze of one of the officers was focussed on his mouth. In the station the officers completed the physical search that had already started in connection with the apprehension of E.M. The purpose of this search was both to look for narcotics in E.Ms clothes and also to find documents that would establish E.Ms identity. When E.Ms identity had been established, the officers contacted to check that E.M. had the right to be in the country. The opinion of the authorities For the officers working in central with the task to which major priority has been assigned by Swedish politicians of combating the trade in narcotics, it is important to know whether the routines described here in detail comply with current legislation or not. In the opinion of the authorities, an injunction to a suspect to spit out the narcotics concealed in his mouth can almost certainly be equated with a physical examination. Because of the risks involved with delay, this is something that an individual officer also has the legal authority to undertake in the area outside the central underground station. A officer almost certainly also has the right to take a grip of a suspects jaw and at the same time tell him to spit out the narcotics concealed in his mouth. This too constitutes a physical examination. In the opinion of the authorities, however, an attempt to force open the jaws of a suspect, if this is indeed possible in practice, in the area outside the central underground station, as described by Super-inten-dent in his memorandum, would, on the other hand, be in conflict with the principle of proportionality. Such an intrusive physical examination should preferably be undertaken by a doctor in a separate room. In addition, the term physical examination could also include the forceful removal by a officer of narcotics held in a suspects hand. In the opinion of the authorities, the officers concerned cannot be considered to be guilty of any offence or misconduct in their treatment of E.M. and V.A. on 1996 at the central underground station in . E.M. was given an opportunity to comment on the rejoinder which he did not avail himself of. The case was also submitted to opinion on whether the course of action described by Superintendent to prevent an individual from swallowing narcotics could be regarded as complying with current law. (the National Commissioner, ) stated the following in its rejoinder. In its opinion will restrict itself to the following question. a officer - in order to secure evidence when this would be jeopardised by delay - take a grip of the heads of individuals suspected on reasonable grounds of having narcotics in their mouths and force apart their jaws in order to prevent the narcotics from being swallowed? To begin with, is able to establish that the course of action described falls under the designation of physical examination as laid down in 28.12 of the Procedural Code. Touching the jaws or other parts of the head of individuals being examined is by definition included in this type of coercive measure. It can be assumed that individuals being examined will, when the jaws are prised apart, also be told to open their mouth wide to permit ocular inspection of the oral cavity. Such action - even if there is no contact with the inside of the mouth - must in the opinion of be placed on the same footing as an interior inspection of the individual and is therefore a physical examination. It is laid down in 28.13.2 of the Procedural Code that an inspection in connection with a physical examination that is of a more extensive nature is to be performed in a separate room. In addition it is made clear that examinations of an intrusive nature are to be performed by a doctor. Interior examination of the body should generally be regarded as relatively extensive. However, in the opinion of , this is not the case when all that is concerned is the scrutiny of an open mouth to look for concealed narcotics. This means that examinations of this kind need not necessarily be conducted and in a separate room. The course of action described in this case constitutes a form of physical examination that, according to information given to , could in certain cases be dangerous. The possibility cannot be excluded, for example, that a suspect could panic on having his jaws prised apart or that this could cause difficulty in breathing. The way in which the individual officer undertakes this task will therefore be of great importance in this context. In this years Finance the government placed great emphasis on high priority being given to measures to counter narcotics offences both on the street, and at regional and national level, cf. 1997/98:1, Expenditure Area 4, p. Today street sales of narcotics often involve both seller and buyer concealing narcotics in their mouths, which means that actions to deal with suspected pushing or possession cannot take any other form than the one subject to scrutiny in this case. One alternative could be to deprive suspects of their , permit them to use only special lavatories and wait until what has been swallowed follows the course of nature. However, this method could be seen as an even greater infringement of integrity. In the opinion of , despite the objections that can be raised, this course of action is reasonably commensurate with the advantages that it offers. For the grounds adduced here, therefore, the procedure should be accepted. In an adjudication issued on February 13 1998 the Chief Parliamentary Ombudsman, . made the following comment. Chapter 2 Article 6 of the Instrument of Government lays down that all citizens are protected in their relations with the public administration against enforced physical violation and against physical searches, for instance. Restrictions in this guarantee may, according to Article 12 in the same Chapter, only be made by legislation. From this it follows that an authority may not take any measure of the kind referred to without a legal basis for its actions. This principle of legality laid down in 2.12 of the Instrument of Government also finds expression where the forces are concerned in 8.2 of the Act (1984:387). Some of the statutes which empower the to violate the physical integrity of individuals in the ways referred to in 2.6 of the Instrument of Government may be found in part in Chapter 28 of the Procedural Code and in the Act.