frsrdg · GQ04JO1 · 2003-01-01 00:00:00 — , finally, has been responsible for the supervision of the administrative courts, and construction, immigration, administration of foreign affairs, environmental protection, farming and protection of animals, labour market, and all additional aspects of civil administration not supervised by any other Parliamentary Ombudsman. During the year, 4 574 new cases were registered with the Ombudsmen; 4 463 of them were complaints and other cases received (a decrease by 48 compared to the number of cases received during the previous year) and 111 were cases initiated by the Ombudsmen themselves on the basis of observa- tions made during inspections, of newspaper reports or on other grounds. 4 588 cases were concluded during the period; out of them 4 467 were complaint cases and other cases received, whereas 121 were cases initiated by the Ombudsmen themselves. It should be noted that the schedules overleaf show cases concluded during 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. BI L A G A 5 2002/03:JO1 chedule of cases initiated by the Ombudsmen and concluded during the period 1 00130 2002 agement, public health, Access to official docu- ments, Freedom of the 2002/03:JO1 BI L A G A 5 Schedule of complaint cases concluded during the period 1 2001 30 2002 public health, pro- ve boards, control of BI L A G A 5 2002/03:JO1 Prosecutor convicted of misuse of office for freezing a bank account without legal grounds (Registration number 2626-1999) The complaint and the enquiry In a complaint to the Parliamentary Ombudsman, . alleged that during the preliminary investigation of an offence against the Copyright Act , a district prosecutor with the regional public prosecution office in (serving at the office), had been guilty of misuse of office by freezing his postal giro account without a valid decision. After analysis of certain documents pertaining to the case, the Chief Parlia- mentary Ombudsman, . , found grounds for assuming misuse of office as laid down in Chapter 20 Section 1 of the Penal Code in the course of the investigation. On he decided to initiate a preliminary enquiry to determine whether such an offence had been committed. On completion of this enquiry, the Chief Parliamentary Ombudsman, . , decided to initiate proceedings in District Court against on a charge of misuse of office in accordance with the following description of the crime. , a district prosecutor, led the investigation conducted by the local prosecution office of case C-10-1300-98 concerning an offence against the Copyright Act. The suspected crime involved, among other things, the unlawful copying by R.A. of computer games and the subse- quent sale of these copies. In a document dated 16 October 1998 to the sec- tion of in responsible for freezing accounts, requested that no direct withdrawals or withdrawals of any other kind from the account of R.A., account number , should be permitted. Reference was made in this document to the preliminary investigation of a criminal offence and it was also stated that it is suspected that the account is being used for unlawful purposes. , the attorney appointed by the court to act as R.As defence counsel, submitted a written request that was received by the prosecution office on 11 1999 that the ban be lifted. In her written response to this request, dated 17 1999, stated that the money in the account represented payment accruing from the sale of pirate copies and would be declared forfeit, and that she therefore had no intention of lifting the restrictions. In a provisional attachment hearing on 22 1999 in District Court, case B 1647-98, she stated, ac- cording the record of the court, among other things, that forfeiture of R.As postal giro account had never been an issue so there must have been a misun- derstanding between the prosecution office and in and this was to be rectified immediately. The ban on withdrawals was lifted on the same day. The legal requirements to enable restriction of R.As right to dispose of this account as an investigative measure during a preliminary investigation were not fulfilled. As far as can be ascertained, there were no other legal 2002/03:JO1 BI L A G A 5 grounds for such a measure. As a result of the actions of , therefore, R.A. was deprived of his right to dispose of the funds in the ac- count from 19 October 1998 until 21 1999 without there being any basis in law for this measure. has, in other words, in the exer- cise of her authority disregarded through negligence the applicable provi- sions. The judgment of District Court In a judgment issued on 25 2000, District Court found guilty of misuse of office as charged and sentenced her to a fine of Under the heading Grounds for the judgment, the District Court made the has acknowledged the actual circumstances detailed in the first paragraph of the description of the offence but has contested the charge. In doing so, she claims that she did in fact have a legal basis for the restriction of R.As right to dispose of the funds in the account as an investigative mea- sure by virtue of a decision that the funds should be taken into custody and a subsequent application for their provisional attachment. In addition, she claims that freezing the account occasioned R.A. no more than negligible injury and that invocation of the principle of proportionality should result in her being acquitted of the charge. Finally, she has objected that in any event the offence should be considered a minor one and should not therefore give rise to a conviction. In addition to testimony, the documentary evidence lis- ted in 1 (not included here, Ombudsmans comment) has been sub- mitted and examined. With regard to the circumstances disclosed by the proceedings, the District Court notes the following to begin with. has served as a prosecutor since 1986. In 1992 she was appointed special prosecutor for envi- ronmental offences and served in this capacity at the regional public prosecu- tion office at until the reorganisation of the prosecution service in 1996. Since then she has been working at the local prosecution office in , retaining special responsibility for environmental offences. One of the reasons why the case in question arose was that a group representing the interests of manufacturers of computer games, called MDTS, submitted a new complaint regarding a case that was pending after having purchased games through the Internet that turned out to have been copied. On 7 October 1998, decided that on the grounds of suspicion of an offence against the Copyright Act a search was to be made of premises belonging to R.A. This search took place on 8 October 1998, and led to the seizure of a large quantity of CD discs and computer equipment. was arrested on the same date and detained on the following day. He was released later, more precisely on 22 October 1998, on the decision of the prosecutor. During the same period, another individual called P.H. was also detained on suspicion of involvement in the same criminal activities. BI L A G A 5 2002/03:JO1 October 1998, or in other words during the period in which R.A. was in cus- tody, requested in a letter headed request for an account to be frozen addressed to in that no direct withdra- wals or withdrawals of any other kind should be permitted from R.As postal giro account, number in connection with the investigation of a criminal offence and also stated that it is suspected that the account is being used for unlawful purposes. The balance of the account, which was frozen on 19 October 1998, amounted to SEK 12,935.92. The letter to was not registered as outgoing post at the prosecution office. According to infor- mation received, R.A. was recently sentenced to prison for an offence against the Copyright Act. With regard to the routines that apply to registration etc. at the prosecution office in , supplied the following information. In connection with the reorganisation in 1996 several of the administrative staff were made redundant. Previously two or three prosecutors had shared the services of one secretary, which meant that there was one more individual, apart from the prosecutor, who had a firm grip on cases. After the reorganisa- tion, what was called a general pool was created. When a decision had been made, a copy was to be placed on a shelf in a post room so that the office staff could deal with it and ensure that it was registered. The outcome of this case had led to alteration of the routines so that there is now one duty administrator each day who can ensure immediate registration of decisions that need to be monitored. In addition, the remaining information submitted by can on the whole be summarised as follows. The preliminary investigation dealt only with an offence against the Copyright Act. When the decision was made to carry out a search of premises there was however one line of investigation that indicated criminal activity in the form of computer theft and bootlegging. The criminal intelligence service had in fact been tipped off about computers being carried backwards and forwards and mysterious vehicle movements in the area where the search was to take place, which consisted mainly of flats for retired people. She had, however, made it clear to the officers that if they came across any other form of criminal activity apart from offences against the Copyright Act, they were to contact her for new instructions. The officers did contact here when the search was being made. She was told that the activities were considerably more extensive than they had believ- ed with, for instance, three computers with CD-burners in operation and large quantities of CDs ready for delivery. The made a video film of the flat in which the search took place which she was shown. All the equipment in the flat was taken to the station. When the seized property was analysed, a large number of postal giro vouchers issued to R.A. were discovered which specified amounts paid in to his account. There were also deposit slips to a postal giro account in P.Hs name. provided the information that the account in P.Hs name had been opened on 1 1998 and that up until October of the same year the balance had been about ,000. denied that the money in the account was his, claiming that he had opened the account at R.As request. The account was later closed on P.Hs instructions. 2002/03:JO1 BI L A G A 5 suspected for various reasons that the postal giro account in R.As name could have been used, at least in part, in these activities as a back-up or current account and that, in view of the extent of these activities, there could be other individuals who could make withdrawals. Copyright offences were not her strong suit but she saw the possibility of reaching firmer ground if it could be shown that R.A. had been carrying on some form of legal business activity and failed to keep proper accounts. This is why the provisions on forfeiture in Chapter 36 of the Penal Code were pertinent. claimed that he had been repairing video-games and selling accessories for them. It was, however, difficult to establish that R.A. had been conducting any kind of legitimate business. The fact that she had failed during the preli- minary investigation to refer to the existence of suspicion of crime in connec- tion with business activities was due the fact that she was not used to being the subject of a preliminary investigation herself. A list of transactions re- lated to the account was requested but it took a few days before the lists were available. From studying legal precedents and in other ways, she realised that the damages awarded in cases concerning breach of copyright could amount to large sums. However, no formal claims for damages had been submitted in this case. was detained in custody she felt that she owed it to the aggrieved parties to check whether the money in the postal giro account could have derived from the production of pirate copies. In view of the possibility that others could withdraw money from the account, she asked what courses of action were open to her and was told that it was not uncom- mon for an account to be frozen for a few days pending a decision. The idea of freezing the account originated therefore with . In this situa- tion she did not reflect any more closely on the legal implications of this mea- sure but merely wanted to secure the amount. When she decided to freeze the account, she believed that it would play a significant role in the investigation of the crime as part of the preliminary investigation process. She wanted to gain control over the funds. This was the preliminary stage of a decision to attach them. The long-term aim was to safeguard the rights of the aggrieved parties. She was aware that freezing the account was not a lawful measure during the investigation, but considered it to be a temporary measure pending a decision on provisional attachment. In addition, she knew that accounts had been frozen in other cases as a temporary measure without any prior decision on the use of coercive measures, with the property subsequently being taken into custody and provisional attachment applied for. As was customary, her decision was then placed on the shelf for registration. She does not know what happened thereafter, but she presumably was obliged to retrieve the file and did not then replace it so that the decision could be registered, as she should have done. For this reason the decision was not registered and was not therefore subject to monitoring. She then forgot about the frozen account. She did not personally inform R.A. or his counsel about the measure. was later released, he contacted her, occasionally several times a day, and asked for the return of his possessions. On one occasion he also mentioned his money. She was then convinced that he was referring to the money in the account belonging to P.H. Even when she received the written request dated BI L A G A 5 2002/03:JO1 10 1999 from she was still convinced that the postal giro account referred to was the one in the name of P.H. The letter did not contain the number of the account. It was not until she received the letter dated 17 1999 from containing an account number she did not recognize that she realised that something was amiss. This account number was not listed in the record of the property seized. She contacted and was informed that the account had been frozen at her request. This is why she said at the provisional attachment hearing that the account had been frozen as the result of a misunderstanding and re-opened the account. She found the document with the decision to freeze the account among a set of precedents while she was going through the case file. As there were no investigators specialising in IT at at that time, as well as for other reasons, she became involved to a much greater degree than normal in the practical administration of the case. In addition, at the same time she was in charge of a raid that was being prepared in a case concerning imported motor vehicles. The District Court finds as follows. To begin with, it has been established that through her re- quest and the subsequent freezing of the account restricted R.As right to dispose of the funds in the account. It is also clear that had no legal grounds for having the account frozen in the way it was arranged. In defence of her actions has claimed that, in the first case, she did have the legal possibility of restricting R.As access to the account as an investigative measure during the preliminary investigation by virtue of a deci- sion to take the funds into custody and then request their provisional attach- ment. In other words, according to , there was the possibility within the framework of the coercive measures permitted in the process of law to restrict R.As right to dispose of the money in his account, even though she did not resort to it. The coercive measures that could have been lawfully invoked were taking custody of the funds and provisional attachment. has given various explanations of her reasons for arrang- ing to have the account frozen and at the main hearing she gave information about her motives for doing so that she had obviously not presented during the preliminary enquiry into the case. She claims, for instance, that when she decided to freeze the account, she considered that this would play a signifi- cant role in the investigation of the crime as one of the investigative measures in her preliminary investigation. She has also maintained that the reason for freezing the account must have been the one stated in her written request to , which is that it was called for in connection with the prelimi- nary investigation of a crime. The first paragraph of Chapter 27 Section 1 of the Code of Judicial Proce- dure, insofar as this is of relevance, enables seizure of objects that can reason- ably be assumed to be of some significance for the investigation of a crime. It is obvious that this provision was not applicable in this case and has also herself maintained, according to the entries in the record of the seizure, that there was never any question of seizing R.As postal giro ac 2002/03:JO1 BI L A G A 5 There was, therefore, no basis in law for restricting R.As right to dis- pose of the funds in the account as an investigative measure during a prelimi- nary investigation. The question then remains of whether there were any legal grounds for provisional attachment of the funds. has claimed that the grounds for attachment of the funds were to guarantee any damages claimed by the aggrieved parties and also that R.A. could be suspected of a crime committed in the course of business so that forfeiture according to the provisions of Sections 1, 2 & 4 of Chapter 36 of the Penal Code could be invoked. It has not transpired that any manifest claims for damages had been sub- mitted when came to her decision that the account should be frozen. The investigation concerned an offence against the Copyright Act. The Copyright Act contains no provisions relating to forfeiture. asseveration, which was obviously not made prior to the main hearing, that her decision was based on suspicion that R.A. had committed a crime in the course of business and that the provisions regarding forfeiture in the Penal Code could be invoked appears largely to be a post-hoc construction. has she been able to present a more concrete account of the nature of the crime involved. Furthermore it is evident that any suspicion that may have arisen of such an offence had not become strong enough to prompt a decision to attach the funds. As far as has been shown, therefore, there was no legal justification for restricting R.As right to dispose of the funds in his account by acquiring custody of them. The District Court therefore finds that it has been shown that decision to arrange for the account to be frozen had no basis in law and that the provisions applying to the use of coercive measures as part of the process of law provided no legal grounds for restricting R.As right to dispose of the funds in his account. has therefore been deprived of the right to dispose of these funds during the period described in the description of the offence without any basis in law. According to her own testimony, the idea of freezing the account was sug- gested to by . It is clear that she did not consi- der any legal implications before arranging to have the account frozen. There can be no doubt that as an experienced prosecutor she was negligent in the exercise of her authority. To the extent that the principle of proportionality can be considered relevant in this context, its application cannot lead to acquittal of the charge of misuse of office. The degree of injury that R.A. may have sustained as a result of erroneous exercise of authority is a circumstance that must be taken into account in deciding whether the offence is a minor one or not. The question therefore is whether this offence should be considered a mi- nor one and that should not therefore be convicted. is an experienced prosecutor and as such must have been familiar with the coercive measures that are permissible. As far as can be seen, she was not subject to any time pressure when she decided to freeze the account. has it been shown that her workload on this occasion was no- tably burdensome. The outcome of her erroneous exercise of authority was BI L A G A 5 2002/03:JO1 was deprived for five months of the right to dispose of the funds, amounting to almost SEK13,000, deposited in the account. This is in other words a relatively substantial sum of money that for a long period of time he was unable to dispose of. After making an overall assessment of these cir- cumstances and other factors pertaining to the case, the District Court finds that the offence cannot be considered a minor one. It therefore finds guilty of misuse of office. The only appropriate penalty is a fine. appealed the decision of the district court, one of her claims being that she should have been acquitted or, alternatively, that the penalty should be remitted. The Chief Parliamentary Ombudsman . contested the appeal. The Appeal Court for Southern granted a review permit for the The judgment of the Appeal Court for Southern In a judgment issued on 24 October 2001 the Appeal Court upheld the deci- sion of the District Court. The grounds cited for its judgment contained the following observations. has entered the same plea as in the District Court. tion to her testimony in the District Court according to the account present- ed in its judgment the following is the substance of what has been maintain- ed. When she asked for the account to be frozen, it was clear to her that the games manufacturers would, through MDTS, the group representing their interests, submit a claim for damages amounting to between SEK23 million. Her intention must have been to submit an application for provisional attach- ment to the District Court one or two days after freezing the account. MDTS decided, however, to wait upon the outcome of a case in which an accomplice of R.A. in the region had been charged with offences against the Copyright Act. At the moment a civil suit is taking place between MDTS and R.A. and others, in which the damages claimed amount to over SEK4 million. can have sustained no injury as a result of the freezing of his account as it was not until 10 1999 that he asked about the funds in the account and he incurred no loss of these funds or the interest on them. Offences of this type against the Copyright Act are infrequent and it was easy to make a mistake. Because of this it would at any rate be unreasonable to impose a penalty in this case. At the moment she is on leave from her post as prose- cutor and has a different post in . The written evidence submitted to the District Court has also been cited in the Appeal Court. 2002/03:JO1 BI L A G A 5 The findings of the Appeal Court The substance of the charge against is that, even though the legal requirements for restricting R.As right to dispose of the funds in his account were not fulfilled, she submitted a request to that no direct withdrawals or withdrawals of any other kind from the account should be permitted citing the preliminary investigation of a crime and the suspici- on that had arisen that the account was being used for unlawful activities. As a result of her request, R.A. was deprived of the right to dispose of the funds in his account during the period from 19 October 1998 until 21 1999. It is alleged in the charge that in doing so has in the exercise of her authority disregarded through negligence the applicable provisions.