frsrdg · GQ04JO1 · 2003-01-01 00:00:00 — There can be no dispute that the enquiry has revealed that it was solely request to that led to the freezing of the ac- count, that it was later opened at her request, and that the import of this mea- sure was that R.A. could not dispose of the funds during the period for which the account was frozen. has stated in the Court of Appeal that the intention of freezing withdrawals from the account while permitting deposits, was to enable those who had received pirate copies of games and software, for in- stance, to continue to make payments into it. In view of this and in considera- tion of what has otherwise been revealed in the proceedings, the Court of Appeal finds no evidence to suggest that the criminal activities of which R.A. was suspected that were referred to in the request for the account to be frozen comprised anything more than the offence against the Copyright Act. There- fore in applying the process of law the only form of coercive action open to was to seize the funds in the account. According to own statement, taking custody of the funds was intended to guarantee the execution of a claim for damages submitted by the aggrieved person. When objects are taken into custody on these grounds, a request for provisional attachment must be submitted within five days as provided by Chapter 26 of the Code of Judicial Procedure. A prosecutor is only empowered to submit such an application if notification of such a claim has been received from the aggrieved person. If no application for provisional attachment is made, the property must be returned without delay to its owner. However, no application for provisional attachment was made and it has not been shown that the prosecutor was notified of any claim for damages. The decision to take custody of sums of money requires, in view of the li- mited time allowed for submission of an application for provisional attach- ment, not only registration of the decision but also the initiation of measures to ensure that the time limit can be complied with. No examination of the routines at the prosecution office for monitoring time limits has been made in this case. The contents of the document could have prompted any member of the prosecution offices staff other than to take the initiative to ensure that this time limit was observed and it is obvious that she did not take any such initiative herself. BI L A G A 5 2002/03:JO1 In view of the above, the judgment of the Court of Appeal is that request to that the account should be frozen does not constitute and cannot be equated with a decision to take custody of pro- perty. As the District Court found, it cannot, therefore, be considered that there was any basis in law for imposing restrictions on R.As right to dispose of the funds in his account. The Court of Appeal concurs with the judgment of the District Court that , as described in the charge and accounted for above, as a result of negligence in the exercise of her authority has disregarded the provi- sions applying to the case and that her offence cannot be considered to be merely minor. The circumstance that the employees of may perhaps not be obliged to comply with a prosecutors request for the freezing of an account has, in the opinion of the Court of Appeal, no significance for this assessment. cannot therefore be acquitted of misuse of office. Neither own testimony nor what has otherwise come to light justifies her exemption from sanction as provided by Section 6 of Chap- ter 29 of the Penal Code. The judgment of the District Court on these points is to be upheld. Complaint against Råby Youth Residential Centre concerning the segregation of inmates without any legal basis (Registration number 1036-2000) In a letter to the board of control of , , who was employed as an on-call inspector at Råby Youth Re- sidential Centre, pointed out that in repeated discussions at the centre diffe- rent opinions had been expressed about what was to be considered as segregation and whether there was any legal basis for placement in a room for special supervision. She therefore requested answers to the following questions. 1.Does the law provide any form of support for this method of segregating one inmate in the centre for an unlimited period of time? 2.Who will be held responsible if this is an erroneous procedure? 3.Can the possibility of segregating inmates be used for corrective purpos- In her letter to , gave an account of the way in which the cases of two inmates at Råby, Y.N., born in 1981, and S.Å., born in 1982, had been dealt with. The response to letter from , then the at , contained the following answers. 2002/03:JO1 BI L A G A 5 The answer to your first question (1) is as follows. The kind of segregation referred to in Section 27 of the Ordinance requires among other things that the inmate is segregated from others at the centre. In the opinion of the wording others at the centre includes both the staff and its inmates. Therefore, if inmates are con- fined together with members of the staff, this is not, in the view of the Natio- nal a question of segregation as laid down in Sec- tion 27 of the Ordinance. When it comes to restrictions on the movements of inmates other than segregation in accordance with Section 27 of the Ordinance, there is support for such measures for in- stance in Section 15 of the Care of (Special Provisions) Act (1990:52), which provides for inmates to be prevented from leaving a centre or subjected to other forms of restriction required for the administration of treatment or to ensure the safety of other inmates or members of the staff. With regard to your second question (2), the answer depends on what kind of responsibility you consider the superintendent to have to , for instance, that the operations of the institution comply with the legislation in force. The answer to your third question (3) is that segregation as laid down in Section 27 of the Ordinance or any other coercive powers for that matter may not be used in order to punish an inmate; it is quite another matter that, irrespective of its underlying intention, a measure can be regarded by an inmate as a form of punishment. The wording of Section 27 of the Ordinance suggests that the purpose of the legislation on segregation is to enable the maintenance of security and order at the institu- tion. In a complaint to the Parliamentary Ombudsman, has requested an enquiry into the treatment of Y.N. at , in particular where the issue of segregation is concerned. In the complaint she expresses opinions on the response received from some issues she considers the response entails. Extracts from journals on Y.N. were attached to complaint. After the complaint had been referred to , its superintendent, , replied as follows. emergency section has seven places. One of them is in what is known as the Wing (see attached plan) (omitted here, Ombudmans comment). It normally only has one occupant. This accommodation unit is close to a solita- ry confinement unit of a more traditional kind and also next to the section duty room. This seventh accommodation unit also has an additional day-room with its own seating, access to a television, and a small vestibule with adja- cent shower and toilet. The unit has two exits, which are kept locked when there are no members of the staff with the inmates or when the staff office is unmanned. One exit leads into the sections exercise room and the other into a fenced outdoor area. This part of the forms an independent unit, which enables it be used to accommodate one inmate and also for solitary confinement in the special room equipped with a cell door. Nowadays greater emphasis is laid on treatment, so that custody and su- pervision have become ancillary to the task of providing care. BI L A G A 5 2002/03:JO1 high staff ratio and the few places for inmates in each unit (seven at ) the nature or the treatment offered has changed in recent years. Formerly it was more traditionally institutional and inmates were treated in groups, but developments have led to a more personal approach with treatment tailored to individual needs. This broadening and intensification of treatment has made it possible to focus measures more individually and accommodate inmates in small groups. The traditional institutional environment has been shown to contain certain destructive features, and therefore a higher degree of individual adaptation has helped to raise quality. Because the degree of maturity, interests and ne- eds of these young people often vary, it is inappropriate to organise certain activities or forms of treatment on a group basis. For instance, in situations involving confrontation and refusal to compromise, which lead to aggression and conflict, individual solutions that are more tactful and gentler are often more suitable. This has played a not insignificant role in avoiding the use of segregation as laid down in Section 27 of the Ordinance. The susceptibility of young people of this kind to stress and frustration and the difficulties they often experience in conforming to groups and adopting ap- propriate group behaviour mean that staff have to be highly flexible and re- ceptive in order to avoid the occurrence of violence. For the above reasons, we often refrain from resorting to segregation in its traditional form and choose instead a gentler and more welcoming and digni- fied form of accommodation which provides the necessary enclosure. We consider that it is a healthy development that we can section the accommo- dation offered in this form of collective . In the enclosed section of a youth residential centre, threats and threate- ning behaviour occur frequently, and these lead at times to frequent violence (blows, kicks, verbal threats, refusals, etc.). Not infrequently, one member of the staff is played off against another. The inmates attempt to further their own interests in different ways and gain advantages. In such cases, some members of the staff are singled out for con- frontation, while the others are allowed to understand, console and encour- age. The reasons and justification for the individual placement in the cases in question: As an substance abuser who had great difficulty in functioning in a socially acceptable way, for instance through unprovoked attacks on members of the staff, Y.N. was in a very difficult predicament. He was highly irritable, his behaviour and mood unpredictable, so that he was difficult to cope with in the section along with the other inmates. This form of accommodation was inappropriate and caused problems both for Y.N. himself and for the other members of the group. It was felt more suitable to place Y.N. in the Wing with contacts with the staff and regular supervision and also at this stage to restrict his contact with the other inmates. The Wing makes it possible to divide the section and the inmates up into two. Both forms of division take place on the same terms. Lack of contact with the other inmates makes those placed on their own more dependent on contact with the staff. Once every hour, therefore, Y.N. was offered the pos- sibility of going out into the open air. Other activities, such as conversation, table tennis and other forms of physical activity, access to a computer etc, either in the section or elsewhere, took place as often as required or were otherwise felt appropriate. 2002/03:JO1 BI L A G A 5 is an emergency section and receives young people of both sexes. They are not allowed to develop sexual relationships. The high ratio of staff is con- sidered to enable control of the situation and adequate supervision. In a situation in which S.Å. was exerting undue pressure on the female in- mates of the section and making sexual advances in various ways with verbal threats, he was placed in the Wing. Contact with the rest of the group and participation in group activities thereafter were only allowed to a restricted extent and in more controlled forms. participated in activities with the other boys in the section and was not, therefore, confined to the Wing. He too was offered the same opportunities of getting out into the open air each hour, or the possibility of some other form of suitable activity, treatment or the like as in the case described above. The periods of placement listed in the complaint are correct. As we consider that the unit referred to as the Wing forms part of the section, we do not consider that placement there constitutes segregation even though its doors are at time kept locked. During the night, for instance, when there are only security staff on duty, the doors to the inmates accommodation are locked. This means that one of the seven inmates residing in the section is accommodated in a separate unit, without contact with the other inmates. The above inmates have not been kept in segregation in the referred to in Section 27 of the Ordinance except when it has been decided to do so. Restriction of their contacts with other inmates has been based on the requirements of their treatment and placement in the part of the section called the Wing has involved greater and more frequent contact and activities with members of the staff. Even though these individual placements have not always been in agreement with the wishes of the inmates, for treat- ment reasons they have been necessary and suitable from the viewpoint of the acute situations in which they found themselves and pending the transfers that were later made. For this reason it cannot be claimed that there were any placements made on erroneous or invalid grounds. A statement was also requested from . The contents of its response, signed by its Director General, , were as follows. When took over responsibility for the youth residential centres and homes for children in care in , it came to light after a short time had elapsed that certain residential centres were in the habit of locking the doors of inmates rooms every evening so that they were locked in individually during the night. pointed out in no uncertain terms that this could be regarded as unjustified segregation and that the procedure must be terminated. The institutions concerned complied with this instruction. The Boards action did not escape the notice of the superin- tendents of the institutions and was the subject of discussions between them. Recently, the Board has, as a result of its own inspections and the infor- mation submitted by , become aware that some uncertainty may prevail among the institutions about the interpretation and application of the provisions on what is known as segregation in Section 27 of the Ordinance. This applies for instance to the circumstances in which an inmate can be considered to be segregated from others at the centre in accordance with the regulations. Therefore, the Board immediately began the process of formulating advice and guidelines on segregation and also to plan more detailed monitoring of segregation. Before the work on the advice and guidelines had been completed, it came to our knowledge that the Parliamen- tary Ombudsman intended to institute an enquiry into the case in question and would probably issue an advisory opinion. BI L A G A 5 2002/03:JO1 nal Care has therefore decided to postpone the circulation of its own advice and guidelines. A draft version of the advice and guidelines is attached to this letter and the Board would like to refer to it in stating its own standpoint in this case. In other words, it is the opinion of that placement in the Wing in the cases referred to did constitute segregation as laid down in Section 27 of the Ordinance, to the extent that each of the inmates was locked in on their own against their own wishes for any but brief periods and for practical reasons. The draft version of the advice and guidelines on segregation attached to this response contained the following. According to the wording of the legislation, segregation involves an inmate separated from others at the centre. Several inmates confined to- gether in the same premises are not therefore subject to segregation, even if there are no members of the staff confined with them. It is the opinion of that a client who is confined with mem- bers of the staff of the institution and no other inmates is not subject to segre- gation either. The concept of others at the centre includes, therefore, in the opinion of the staff of the institution and its inmates. For very many years now, particularly in the care of young offenders, cli- ents with special needs for instance those who are extremely violent or likely to injure or kill themselves have been required to spend some period alone in a separate or locked section of the institution with only members of the institutions staff for company. In the opinion of this procedure does not constitute segregation as long as the inmate is not confined alone on the premises. It should be emphasised that members of the staff must be locked in together with the client for the entire period in principle, for instance during the night. For practical reasons, ac- companying staff should be permitted to lock the door behind them, during brief visits to the toilet for instance, even if this may mean that from one point of view the inmate has been left alone outside the lavatory door. Locking a client in with a teacher for special instruction does not, in the opinion of , constitute segregation. Accommodating each inmate in a separate room in which they are required to stay during the night does not, in the opinion of stitutional Care constitute segregation as long as inmates are not locked in (by the staff) on their own. has responded to the replies received from Råby Youth Resi- dential Centre and . Measures undertaken by the social services for children and young people have to be implemented with their agreement and the agreement of their care- givers according to the provisions of the Act (2001:453). Under certain conditions, however, treatment may be given to juveniles without their consent. The regulations that apply can be found primarily in the Care of (Special Provisions) Act (1990:52). According to Section 3 of this act, treatment of this kind may be needed for instance when juveniles expose their health or their development to the palpable risk of inju- ry by misusing substances that give rise to dependency, criminal activities or some other socially destructive behaviour. 2002/03:JO1 BI L A G A 5 Section 12 of the Care of (Special Provisions) Act stipu- lates that special youth residential centres are to be provided for the treatment of juveniles who for any of the reasons laid down in Section 3 need to be placed under particularly intensive supervision. The state is to supply the centres required. is the central ad- ministrative agency for these centres. Its board directs and supervises the activities of the centres. Anyone undergoing treatment on one of the grounds laid down in Section 3 of the Care of (Special Provisions) Act in a special residen- tial centre, may, according to Section 15 of the act, be prevented from leaving the centre and otherwise subjected to the restrictions of their of move- ment needed to enable treatment to be administered. The freedom of move- ment of juveniles may also be restricted when this is required to ensure the safety of other inmates and staff. Subsections 15a15c of the act contain spe- cific provisions regarding for instance the rights of inmates to make and re- ceive telephone calls and to receive visits (15a), the conditions in which treat- ment can be given to inmates in a unit in the centre which can be locked or arranged in some other way to provide thorough supervision (15b) and in which circumstances an inmate may be segregated from others at the centre (15c). The provisions of Section 15 of the Care of (Special Provisions) Act correspond to the stipulations of Section 13 of the1980 legis- lation on the Special Provisions concerning the Care of . In connection with the enactment of these provisions the minister responsible had this to say, for instance, when it came to segregation/segregated treat- ment (Government 1979/80: 1 Section A, p. The act does not contain any more detailed regulations about how treatment in these cases is to be given. The treatment has to be devised on the basis of the needs of the juvenile in each individual case. However, it is necessary to limit the powers granted to the Board in one or two respects. Thus, in prin- ciple, segregation should not occur in the course of treatment. It is generally recognised today that segregation can have an injurious effect on a young person. On the other hand, it may become necessary in certain extreme situa- tions such as when juveniles under the influence of drink or drugs or for some other reason become disorderly to segregate them for a short period from others undergoing treatment. In such cases they should, however, be supervised by treatment staff. The restrictions to the powers granted to the board in this paragraph should be embodied in regulations about the imple- mentation of the legislation. A regulation about segregated treatment was included in Section 27 of the previous Ordinance (1981:750). This prescribed as follows: If special grounds exist because an inmate is behaving violently or is under the influence of intoxicants to such an extent that he is out of control, he may be segregated from other inmates in the centre provided that he is under the supervision of its staff. He may not, however, be held in segregation for longer than is unavoidably necessary and in no circumstances for a period exceeding 24 hours. If an inmate is under the age of 15, a doctors opinion is to be sought without delay with respect to every measure adopted according to the prece- ding paragraph. Such measures are to be terminated immediately, should the doctor so request. BI L A G A 5 2002/03:JO1 As a result of the amendments to the Care of (Special Provi- sions) Act that came into force on 1 January 2002, the provisions of Section 27 of the Ordinance were incorporated into the act as subsec- tion 15c, with certain changes in the wording. No changes in the substance of the provisions were intended. The reason for incorporating the provisions on treatment in segregation in the act itself was that segregation was considered to constitute such an infringement of individual that it should be regu- lated by law (Government 2000/01:80 p.121 f.) In her adjudication on 31 , 2002 the Parliamentary Ombudsman, . made the following observations. Neither the Care of (Special Provisions) Act nor the previous Ordinance provide any closer guidance when it comes to determining what constitutes the treatment referred to by the wording kept in segregation from others at the centre. In its response, claims that the separate placement of an inmate together with members of an institutions staff can constitute segregation. Here the Board has cited the contents of a draft version of new guidelines on segre- gation (an extract from this draft is quoted above in connection with the ac- count of the Boards response). The viewpoint of stitutional Care does not seem to be totally incontrovertible. In my opinion it would be more appropriate to interpret the wording others at the centre in the statute to mean the other inmates. This is almost certainly also how the legislators intended the provision to be read. In this respect, in addition to the previous quotation from Government 1979/80 1 Section A, reference can also be made to the statements in the that resulted in subsection 15c of the Care of (Special Provisions) Act (Government 2000/01:80 p. This accounted for possibilities of confinement and segregation from the other inmates . Where application of the previous regulations is concerned, I can refer to the general guidelines issued by , which have since been rescinded, in the Care of , 1981:2 p.