frsrdg · GQ04JO1 · 2003-01-01 00:00:00 — Comparison may also be made with the rules that applied to segregation in what used to be called . The rules concerning segregated treat- ment at centres of this kind were worded in the same way as the provisions relating to segregation in the Care of (Special Provisions) Act. When the legislation on the special provisions in the care of abusers was enacted in 1981, the possibility of segregating abusers was discussed. One of the statements made in the bill by the minister responsible for the legislation was that in the event of violent behaviour by an inmate there should be a possibility to keep him segregated from the other inmates (Govern- ment 1981/82 p. The interpretation of these provisions advanced here also seems to be the one postulated in the text-books on the subject (see Bramstång, Sociallagstiftning (Legislation on the ) p. 2002/03:JO1 BI L A G A 5 /Thunved Nya sociallagarna (Recent Social Legislation), 15th ed. Where other aspects of the content of the concept of segregated in this context are concerned, it must be considered obvious that if individuals choo- se to lock the doors of their rooms themselves there is no question that they are being segregated in the meaning at issue here; if an inmate is to be consi- dered to be held in segregation it must be assumed that this is as a result of some action by the centre. Typical cases of segregation occur when an inmate is confined alone in a separate room or when a member of the staff locks the door of an inmates room. Here it should be possible to disregard cases when doors are locked for purely practical reasons for shorter periods of time. The fact that an inmate has been placed in a room situated in section of a that is separated from the accommodation of the other inmates does not on its own, of course, necessarily mean that segregation has taken place. If, how- ever, this placement prevents the individual from having contact with the other inmates, it is, in my opinion, segregated treatment. does the fact that an inmate only has contact with members of the staff for some short peri- od of time necessarily constitute segregation, such as when, for instance, an inmate is receiving special instruction from a teacher in a separate room. The possibility cannot be excluded that there are cases when an inmate must be segregated from other inmates in circumstances other than those laid down in subsection 15c of the Care of (Special Provi- sions) Act. Here I am referring in particular to situations to which the provi- sions of the Penal Code on emergencies may apply, such as, for example, when the behaviour of an inmate, although his actions cannot properly be described as violent or disorderly, is nevertheless severely destructive in the form of a serious suicide threat. To avoid misunderstanding, I would like to point out that this enquiry includes no instances of cases of this kind. When it comes to the two cases which have formed the subject of this en- quiry, it has become clear from all that has transpired that both juveniles were placed in what is known as the Wing. According to the response submitted by , the inmates have not been kept in segre- gation there for the reasons stipulated in the provisions on segregation but their contacts with the other inmates have been restricted in connection with their treatment. In the centres opinion, therefore, this has not been a question of application of subsection 15c of the Care of (Special Provi- sions) Act. In practice, however, Y.N. have been prevented from mixing freely with the other inmates. In neither the case of Y.N. has this been a temporary measure based solely on purely practical circumstances. My opinion is, therefore, that both Y.N. must be considered to have been subjected to treatment in segregation and that this applies irrespective of whether or to what extent they have been accompanied by members of the staff. As is made clear above, Y.N. have not been segregated by virtue of subsection 15c of the Care of (Special Provisions) Act (previously Section 27 of the Ordinance). can any grounds for this measure be found in any of the other provisions of the Care of (Special Provisions) Act or any other statute. BI L A G A 5 2002/03:JO1 have, nevertheless, been kept in segregation is obviously unac- ceptable. The response of reveals that the have been labouring under a partial misapprehen- sion of what is meant by segregation. Even the point of view adopted by the Board, as it is expressed in its response, indicates the uncertainty that exists in the organization with respect to segregated treatment. In view of this, I have found no grounds for proceeding any further with the case but will terminate it with the criticism implied by the observations above. However, I am assu- ming that will review its routines for the pla- cement of juveniles in the Wing and that will continue to rectify any shortcomings that may prevail in the routines of the various centres when it comes to segregation. It is a fundamental requi- rement that legal grounds must exist for any restriction of the freedoms and rights of inmates in different respects. By the very nature of things, the legis- lation cannot offer detailed regulations about the various situations that may arise or the ways in which the should respond to them. In purely general terms, it is important that the centres do not apply rules in such a way that treatment is being offered in a grey area where uncertainty prevails as to whether or not measures comply with the legisla- tion. In its response, has emphasised how im- portant it is for centres to have the possibility of offering differentiated forms of treatment. I sympathize with this point of view. It is ultimately for to decide whether or not new or modified regulations are needed to increase the possibility of adapting the treatment offered at the to different individuals and I intend to take no initiatives in this respect myself. has posed a number of questions with regard to the terms on which segregation may be used for the purpose of correction and under what conditions inmates may be kept in segregation for 24 hours. The legislation lays down when a decision on segregation may be made. I see no reason to go into this in more detail. Whether in any individual case there are grounds for an inmate in segregation for 24 hours involves the kind of considera- tion on which the Parliamentary Ombudsman should exercise restraint in expressing an opinion. have I found any reason for expressing any other opinion on the way in which has dealt with the two individual cases referred to in complaint. I have also found that there are grounds for submitting a copy of this adju- dication to the Affairs. This closes the case. 2002/03:JO1 BI L A G A 5 Complaint against about its handling of a case concerning the destruction of cattle; among other things the application of EC Regulations (Registration number 3743-1999) In a complaint submitted to the Parliamentary Ombudsman . asked the Ombudsman to look into the way in which had dealt with and reached a decision in a case concerning the destruction of cattle. The complaint was based on information in an article printed in Norr- Tidningar on 9 October 1999, which described how six cattle on a farm outside had been shot as a result of decision by because the cows did not have the yellow EU registration ear- tags. The newspaper article was appended to the complaint. The case file was requisitioned on loan from . A memorandum drawn up by the Parliamentary Ombudsman contained the following. On decided by virtue of Article 1.1 of Commission Regulation (EC) no. 494/98 of 27 February 1998 to prohibit P.S. from moving his livestock to or from his facilities with a spe- cific production site number. P.S. was also required to prove the identity of all the livestock specified in an attached inspection report within two working days of his receipt of the decision. On 4 October 1999, decided, by virtue of Article 1.2 of the same Regulation, that six cattle belonging to P.S. were to be destroyed because he had not been able to prove the identity of the ani- mals. The destruction of the animals took place according to a report by the District Veterinary Officer, , assigned by to supervise proceedings during the morning of 6 October 1999. This event attracted a great deal of attention from journalists and has so far given rise to fifteen complaints to the Parliamentary Ombudsman, all of them based on media reports. In view of these complaints case file has been requisitioned on loan. From the file it can be ascertained that, in addition to the information abo- ve, notice of the decision of requiring P.S. to prove the identity of the livestock was served on him on . According to the attached appeal instructions, appeal against the decision could be made to the County Administrative Court within three weeks from the date on which P.S. received the notice. In other words, the final date of appeal was 12 October 1999. next decision to destroy the animals was, however, made on 4 October. It was also recorded that this decision was to take immediate effect. P.S. was notified of this decision on 5 October. The case file does not indicate whether P.S. received notice of this decision before the animals were put down. Notice of this decision was also accompanied by BI L A G A 5 2002/03:JO1 information that appeal could be made to the County Administrative Court within three weeks of the date of service. In view of these circumstances, a statement should be requested from . In this statement particular emphasis should be placed on the circumstances in which the decision to destroy the animals was made on 4 October before the injunction of had gained the force of law and that the decision to destroy the animals was enforced before P.S. apparently had been given a reasonable opportunity to exercise his right of appeal. should also state whether any consideration was given to alternative ways of dealing with the problem of the lack of proof of identity for the animals. The case was then referred to for the state- ment referred to in the memorandum. In its response of , signed by the Director General, , the Board made the follo- wing declaration (the annexes have been excluded). How the case was dealt with and the legal grounds According to sections 24 & 26 of the Ordinance on EC Regulations on Agri- cultural Products (SFS 1994:1715) is em- powered to reach decisions concerning the monitoring and supervisory func- tions that devolve on the Board in order to ensure compliance with Council Regulation no. 820/97 (EC) of establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and Commission Regulation no. 494/98 of 27 Februa- ry 1998 laying down detailed rules for the implementation of Council Regu- lation 820/97 as regards the application of minimum administrative sanctions in the framework of the system for the identification and registration of bovi- ne animals. has applied the following provisions in the EC regulations referred to above in the case in question. The first paragraph of Article 3 of Council Regulation 820/97 (EC) lays down that the system for the identification and registration of bovine animals is to contain the following components. a)Eartags for the individual identification of animals. b)Databases. c)Cattle passports (not applicable in ). d)The maintenance of up-to-date individual on-farm registration. Article 1.1 of Commission Regulation 494/98 (EC) stipulates that if there are animals that fail to comply with any of the provisions of article 3 of Council Regulation 820/97 (EC) movement of all livestock to or from the holding of the keeper concerned may be restricted. Article 1.2 of Commission Regulation 494/98 (EC) goes on to stipulate that if a keeper cannot prove the identity of an animal in his holding within two working days it is to be destroyed without delay under the supervision of the veterinary authorities, and without compensation from the competent authority. On 11 1999 received notification that there were bovine animals that were neither marked with eartags nor registered in P.Ss holding. then sent P.S. information about the current regulations concerning marking, registering and submitting notifica- tion of bovine animals and subsequently, as nothing happened to suggest that 2002/03:JO1 BI L A G A 5 P.S. intended to mark or register his animals, on 26 1999 requested to inspect whether the animals belonging to P.S. had been marked and registered. In its inspection report of , stated that the six bovine animals in P.Ss holding were not marked with eartags. In addition no indivi- dual on-farm register had been maintained (farm record) nor had the Central Bovine Animal Register (CDB) been notified. As P.S. had, therefore, failed to comply with any of the provisions in Article 3 of Council Regulation 820/97, decided on by virtue of Ar- ticle 1.1 in Commission Regulation 494/98 (EC) to prohibit movement of all animals to or from the holding. P.S. was also enjoined to prove the identity of the bovine animals within two days of service of this notification as laid down in Article 1.2 of Commission Regulation 494/98 (EC). P.S. was served notice of this decision on . He did not request a stay of execution from the County Administrative Court. A herdholder is required to submit the following information if an animal is to be considered identified: sex, breed, date of birth, the mothers identifi- cation code for animals born after 1 1999, the identification number of the holding at which birth took place, the identification numbers of all the holdings at which the animals have been kept together with the dates of all movements. It should be stressed that ende- avours as far as possible to provide herdholders with assistance concer- ning identification. However, it must be pointed out that it is the herdholder, and not , that is required to prove the iden- tity of the bovine animals. For this reason, case officers at contacted P.S. on two occasions, 24 and , to provide information about how the animals could be identified and, if neces- sary, to assist. On these occasions he refused to speak to the case officers. On 4 October 1999, decided that the animals in question were to be destroyed. The main events in this case are listed in the attached table (annex 1). It is important to make it clear that one of the purposes of the relevant EC Regulations is to make it possible to trace infections effectively. This means that very tight time limits are involved when they are applied. According to Article 1.2 of Commission Regulation 494/98 (EC) an animal is to be destro- yed without delay if its holder cannot prove its identity within two working days. In the circumstances described here, decided that its destruction order was to take immediate effect as laid down in section 32 of the Ordinance on EC Regulations on (SFS 1994:1715). This made it possible to destroy the animals without P.S. being notified of this decision or it having gained the force of law. The use of the word immediately in Article 1.2 means that there is no possibility of waiting for an injunction or a destruction order to gain the force of law before procee- ding with the subsequent measure. In this context it should also be mentioned that the decision was dispatched to P.S. on 5 October 1999 by normal post. Another copy of the decision was sent to the District Veterinary Officer, , so that he could hand it to P.S. on the day on which the order was enforced. has also been requested to state whether any consideration was given to alternative ways of dealing with the problem of the lack of identification for the animals. The destruction of bovine ani- mals, especially without any compensation, constitutes a radical intervention in the personal and financial circumstances of a herdholder. In addition a decision of this kind is irrevocable. there- fore devoted a great deal of time to investigating whether there existed any BI L A G A 5 2002/03:JO1 alternative to destroying these animals. The EC Regulations that apply are, however, explicit and unambiguous and leave ture no scope for any other course of action. All alternative procedures, such as the forcible marking of the animals, are excluded. In this context, would like to draw at- tention to the decision of the County Administrative Court for County of (annex 2) and the response of Commission to a question posed by Per (annex 3). The overall opinion of is that everything possible was done to assist P.S. to identify the bovine animals concerned, that the relevant Swedish legislation and EC Regulations have been applied cor- rectly and that the Board was unable to adopt any other course of action to deal with the failure by P.S. to identify his bovine animals. On , the County Administrative Court for County dismissed the appeal made by P.S. against the decision of to destroy his bovine animals. In his adjudication of 8 January 2002, The Parliamentary Ombudsman, . included the following observations. The supervisory powers of the Parliamentary Ombudsmen are primarily intended to ensure that the actions of public authorities and their officials comply with the laws and statutes and that they discharge their responsibiliti- es in other respects. The ombudsmens inquiries are judicial and deal mainly with the application of applicable statutory regulations. On the other hand, the Parliamentary Ombudsmen do not examine the circumstances on which authorities base their actions, particularly when decisions are based on consi- derations of suitability or require particular expertise. can the Parliamen- tary Ombudsmen reverse a decision made by a public authority. Inquiry by the Parliamentary Ombudsmen is not intended either to replace any review that may be made or has been made according to normal procedures. has stated in its response that it devoted considerable time to establishing whether there was any alternative to the destruction of the animals. In this respect has pointed out that the EC Regulations are explicit and unambiguous and leave it no scope for any other course of action; any alternative procedure, such as the forcible marking of the animals, is excluded. In response I would merely like to comment that there would be no reasonable ground for criti- cism of if before its destruction order it had attempted by means of alternative procedures to achieve the ultimate purpose of the EC Regulation, which is to enable any possible infections to be traced by establishing the origin of the bovine animals. In view of what has been stated about the herdholders unwillingness to co-operate and his general reaction I do not, however, have any grounds for declaring that acted wrongly in deciding that the animals were to be destroyed. The legality of this decision has, moreover, been subject to the review of the County Administrative Court for County. With this in mind and in view of my initial comments about the content and tenor of the Parliamentary Ombudsmens supervisory powers I have no further comment on the decision per se. 2002/03:JO1 BI L A G A 5 When it comes to the enforcement of the decision I would like to add the following in connection with the memorandum sent to . In its decision of , required P.S. to prove the identity of the bovine animals within two days of receipt of notification of the decision. As one of the grounds for the decision it was noted that failure to do so would result in the immediate destruction of the animals. By the very nature of things, the subsequent decision that the animals were to be destroyed could be made after only two days had elapsed, or in other words before the decision had gained the force of law. When authorities are considering a decision of this kind they should, nevertheless, take into account circumstances that recommend postponement of the deci- sion, for instance that it would involve a serious infringement of an individu- als or property, that implementation may be irreversible and also that there is a risk that the decision will be reversed if appealed (see förvaltningsrätt 20th ed. 2000, p. The inquiry into this case reveals that case officers at con- tacted P.S. on 24 and to provide any assistance he might need in identifying the animals. Not until he had refused to speak with these officers on these occasions did decide on 4 October 1999 on the destruction of the animals. In these circumstances I see no reason to criticise for its decision that the animals were to be destroyed immediately before the time allowed for appeal against the decision on had expired. Nothing has been adduced to show that P.S. was informed of decision of 4 October 1999 that the animals were to be destroyed without delay before it was enforced. He did not, in other words, have any opportunity to appeal against the decision to the County Administ- rative Court and request a stay of execution. The fundamental principle that applies to all grave decisions is that those concerned must be notified before they are enforced (see p. This, as is the case with the enfor- cement of decisions before they have gained the force of law, is particularly important when the decision involves a serious infringement of the or property of the individual, or if it is irreversible. In its response has referred to the tight time limits stipulated in Article 1.2 of Commission Regulation 494/98 (EC) if the keeper of an animal can- not prove its identification within two working days, it shall be destroyed without delay and also that in accordance with Section 32 of the Ordinance on EC Regulations on (SFS 1994:1715) decided that the decision was to take immediate effect. By virtue of these provisions the decision could, in the opinion of , be enforced even though P.S. had not been notified. I, for my part, am dubious that these provisions provide explicit support for the opinion of . can the circumstances be considered to have been of the kind that required, out of consideration for public order, for instance, or impending peril or the like, enforcement of the decision before P.S. had been notified. In view of the very serious infringe BI L A G A 5 2002/03:JO1 ment of his ownership that the decision involved and the fact that it was irre- versible, should in accordance with the fundamental principle referred to above have delayed enforcement of the decision until it could be shown that P.S. had received notification. On the other hand the tight time limits prescribed in the regulations mean that the decision can be enforced even though it has not yet gained the force of law. I am, therefore, critical of the enforcement of the decision to destroy the ani- mals by before their holder had been notifi- ed. Nothing else that has come to light concerning this case gives me cause to take any further action or express any further opinion. This closes the Parliamentary Ombudsman´s inquiry into this case.