frsrdg · GR04JO1 · 2004-01-01 00:00:00 — The protection afforded messages that are conveyed in open form is, however, for obvious reasons, restricted (see the Parliamentary Ombudsmens Annual Report for 1995/96 p. In this case it is unclear what form the inspection took. However nothing has been stated to suggest other than that the order forms had been cut out of periodicals and were to be posted without envelopes. For this reason it was probably easy to identify the nature of these items without closer examination of their contents. In view of what has come to light in this respect, I see no reason to devote further attention to the detection by the staff of the content of the order forms. The question is, however, whether these order forms can be said to con-stitute objects that can be considered detrimental to the treatment given or the orderly operation of the centre. In the travaux préliminaires to Section 31 of the Care of Abusers (Special Provisions) Act, it is said that the phrasing "objects that can be detrimental to the treatment or the orderly operation of the centre" is intended to refer primarily to weapons and offensive objects that may injure the staff or other inmates (Government 1981/82:8 p. 93 f. and 1987/88:147 p. In an earlier adjudication, the Parliamentary Ombudsmen have also asserted that even large sums of money possessed by inmates may be confiscated by virtue of Section 31 of the Care of Abusers (Special Provisions) Act, when this is intended for instance to prevent blackmail situations from arising and also to avoid the introduction of narcotic substances into the centre (Parliamentary Ombudsmen 1995/96 p. Even ATM cards have been considered to be included in this concept. Correspondingly, the possession of an identity card has also been considered to be detrimental to treatment or the orderly operation of the centre. In enabling withdrawals to be made from a bank, for instance, its value may be compared with an ATM card or the possession of cash. There is probably nothing to prevent the confiscation of an ATM card or an identity card by virtue of Section 31 of the Care of Abusers (Special Provisions) Act if the other conditions applying to this confiscation can be satisfied (see the Parliamentary Ombudsmens Annual Report 2000/01 p. As can be seen, therefore, it has been considered that objects that can sustain continued abuse or disturb the orderly operation of a centre may be confiscated by virtue of the provisions in Section 31 of the Care of Abusers (Special Provisions) Act. An order form cannot in itself be considered to constitute such an object. On the other hand, as pointed out in the National Boards official response, the superintendent could, depending on their nature, possibly have confiscated the goods delivered to P.P. by virtue of these provisions. The centre was faced in this case with a difficult dilemma. I have no reason to assume other than that the centre acted in accordance with what was considered to be in the best interests of P.P. The management of the centre must however ensure that its operations comply with the legislative framework and, as points out in its official response, Section 31 of the Care of Abusers (Special Provisions) Act provided no basis in law for the confiscation of the order forms. Inspection of post pursuant to Section 35 of the Care of Abusers (Special Provisions) Act P.Ps complaint also alleged that acting superintendent confiscated items of incoming post. Section 35 of the Care of Abusers (Special Provisions) Act lays down that those undergoing treatment pursuant to this act may be placed under particularly thorough observation if this is required for the orderly operation of the centre or because of the inmates specific circumstances. If an item of incoming post contains property prohibited by Section 31, this property may be confiscated. The National Boards official response and the statement submitted by the acting superintendent contain an account of routines that should be followed according to the Boards internal general guidelines (1997:1) at residential centres with regard to the inspection of incoming items of post as provided by Section 35 of the Care of Abusers (Special Provisions) Act. In addition, it is stated that the follows these guidelines and that no confiscation or appropriation of the items themselves occurs. What has come to light in this connection has given me no grounds to express any criticism. In its official response, has raised the question of the scope allowed by the secrecy that applies in the social services for a residential treatment centre to forward information to a board of social welfare about the requirement of a trustee or administrator. I share the National Boards opinion that it is doubtful whether Section 26 of the Care of Abusers (Special Provisions) Act, when compared with Section 1 of Chapter 14 of the Secrecy Act (1980:100), allows information to be given to a board of social welfare about the possible need of a trustee or administrator except in cases related to the individuals abuse. For my part, I should like to point out that information can to some extent be provided to the social services by virtue of the second paragraph of Section 2 of Chapter 14 of the Secrecy Act. This provision states that the secrecy enjoined by the first and third paragraphs of Section 7 of Chapter 4 does not prevent information on the continued abuse by an individual of alcohol, narcotic substances or liquid solvents from being forwarded by an agency in the social or services to another corresponding agency if this is required to provide the individual with the care, treatment or any other form of support required. One of the intentions of this provision is, according to the travaux préliminaires, that the agencies providing treatment should not be prevented from exchanging information with each other to enable support to be provided for individuals who are in need of care, treatment or some other form of assistance. In other words, there must be a need for the agencies providing treatment to cooperate with each other or otherwise provide each other with information about the care, treatment or other support (Government 1990/91:111 p. Issues relating to secrecy and the scope provided for agencies to cooperate with each other are currently under review by . The directives issued to this committee (1998:32) call upon it to examine what is required to increase the possibilities open to agencies to exchange information subject to secrecy in order to facilitate their cooperation. In view of this, the issue raised by requires no further comment on my part. However, it may well be of interest to the committee. For this reason I consider there are good grounds for providing the committee with a copy of this adjudication. It can also be added that during 2002 the government appointed a special commissioner to review application of the Care of Abusers (Special Provisions) Act (directive 2002:10). The commissioners directives stipulate that, in addition to analysing the way in which the Act has been applied, an assessment should also be made of whether in its current form it affords the stringent legal guarantees that must apply to measures which an individual may be subjected to against her or his will. I consider that there are grounds for providing the commissioner with a copy of this adjudication for information. The question of whether an adjudication by the Ombudsman against Discrimination on the Grounds of Sexual Orientation constituted unlawful intervention against an individual who had made a statement in the mass media (Registration number 3638-2000 and 4162-2000) () purchases services from a partnership specialising in marketing in which L.S. was one of the partners. VSK received funding from both the and from . On 28 1999 an article was published in , a national daily, about homosexuality in sport. The article quoted a statement by L.S., who was described as belonging to the management of VSK, to the effect that there was no room for homosexual players in any of his teams. A complaint was made by one individual to the Ombudsman against Discrimination on the Grounds of Sexual Orientation which referred to this statement and requested an enquiry into whether L.S. and the rest of VSKs management discriminated against homosexuals. In the ensuing enquiry, the Ombudsman against Discrimination on the Grounds of Sexual Orientation requested a statement from VSK, the and . One of the things revealed during the enquiry was that VSK subsequently decided to continue its collaboration with the marketing company in question. The adjudication issued on 14 2000 by the Ombudsman against Discrimination on the Grounds of Sexual Orientation, , included the following. VSK receives a grant from local authority to finance its activities and therefore administers public funding. One prerequisite for a grant of this kind is that the activities in question take place within a democratic framework and that the administration of the funding is arranged to avoid any violation of the principle of equal treatment. In the opinion of the Ombudsman against Discrimination on the Grounds of Sexual Orientation, there is evidence that VSK is lacking in this respect. In offering financial advantages to a company whose representatives have given public expression to sentiments that are deeply offensive to homosexuals, VSK is affording these statements legitimacy. In addition, VSKs decision to continue to collaborate with the company concerned means that public funds will be used to benefit an undertaking whose owner therefore endorses opinions that violate the fundamental principle that all individuals are of equal worth and who has no hesitation either about circulating these ideas publicly. In view of the statements that have been made, there is reason to question the credibility of VSKs assertion that it is an organization that is open to everyone. At any rate, the actions of its management show that it attaches weight to the practical expression of this principle of equal treatment. This is regrettable and merits criticism. In the circumstances described here, there is a risk that the continuation by the to provide funding to VSK will provide legitimacy to an attitude that violates the right of homosexuals to respect. It is, at any rate, difficult to avoid gaining the impression that the City authorities fail to attach real significance to issues relating to homophobia and the discrimination of homosexuals. For this reason the actions of the in this case, in view of the circumstances described, are regrettable and merit criticism. The Culture and have every reason to think twice next time the question of deciding on this grant is placed on their agenda. Finally, where the financial support provided by to VSK is concerned, the Ombudsman against Discrimination on the Grounds of Sexual Orientation notes with satisfaction the company policy that the company claims to adhere to and the new discrimination that has been introduced into the sponsorship agreement with VSK. Nevertheless, it is in the spirit of either of these documents to continue to provide financial support to an organization that has explicitly declared that it intends to purchase services from a company whose representatives endorse the kind of attitude that the policy and the are intended to combat, an attitude, moreover, that if applied, for instance, to an employee in the ABB group would violate the Act on a against Discrimination in Working Life because of Sexual Orientation (1999:133) and would therefore render ABB liable for damages. ABB, therefore, also has good reason to review its sponsorship of VSK on the earliest possible occasion. . and complained independently to the Parliamentary Ombudsmen against the adjudication of the Ombudsman against Discrimination on the Grounds of Sexual Orientation. One of the issues raised was that this had given rise to injury for both L.S. and VSK, the latter as a result of the attempt to influence not to sponsor the club while it had dealings with L.S. in any way. The files relating to the case were borrowed from the Ombudsman against Discrimination on the Grounds of Sexual Orientation. visited the Parliamentary Ombudsmen on 16 January 2001 and presented a general account of his activities. The following memorandum was then drawn up. The instructions (1999:170) issued to the Ombudsman against Discrimination on the Grounds of Sexual Orientation entrust him with the tasks stipulated in the Act on a against Discrimination in Working Life because of Sexual Orientation (1999:133). In addition, the Ombudsman against Discrimination on the Grounds of Sexual Orientation is to endeavour to ensure that discrimination on the grounds of sexual orientation does not occur in other sectors of the community. The Ombudsman against Discrimination on the Grounds of Sexual Orientation is further required to offer guidance and other forms of assistance to those who have been subject to discrimination because of their sexual orientation in upholding their rights. Finally, the Ombudsman against Discrimination on the Grounds of Sexual Orientation is instructed to propose legislative amendments to the Government as well as other measures that may encounter discrimination on the grounds of sexual orientation. The Parliamentary Ombudsmen have received a complaint against an adjudication by the Ombudsman against Discrimination on the Grounds of Sexual Orientation dated 14 2000 in a case concerning (), the and . This complaint arises from a statement in the media about homosexuals made by an individual with whose company VSK collaborates closely. In his adjudication, the Ombudsman against Discrimination on the Grounds of Sexual Orientation criticises VSK for its dealings with this individuals company. In addition, the Ombudsman against Discrimination on the Grounds of Sexual Orientation criticises the and for providing financial support for VSK and states that this support should be reconsidered when the opportunity arises. The complaints to the Parliamentary Ombudsmen state both that the adjudication of the Ombudsman against Discrimination on the Grounds of Sexual Orientation is based on erroneous information and also that it gives rise to immaterial and financial damage for the individuals company and VSK as well. Article 1 of Chapter 2 of the Instrument of Government grants every citizen freedom of expression in public and this includes the freedom to supply information and express thoughts, ideas and feelings in speech, writing, images or some other . The freedom of expression guaranteed by the Instrument of Government provides protection against public action and means that no government agency may intervene either formally or informally against anyone who invokes their constitutional right to make a statement in the mass media. The second paragraph of Article 1 of Chapter 1 of the Freedom of the Press Act lays down that every Swedish subject shall be entitled, subject to the provisions set forth in the Act itself for the protection of individual rights and public security, to publish his or her thoughts in print, to publish official documents and to make statements and communicate information on any subject whatsoever. Statements of this kind may be made, for instance, to companies engaged in the commercial publication of news. Liability for any unlawful expressions in a daily newspaper, for example, rests with the publisher. The Chancellor of is solely empowered to prosecute violations of the press laws. On the basis of the statements that had been made by the individual in question and published in the newspaper , the Ombudsman against Discrimination on the Grounds of Sexual Orientation has expressed criticism of those involved in the case for their direct or indirect contacts with this individual. This criticism also calls upon them to take measures that may have a negative impact on the individuals commercial activities. The Ombudsman against Discrimination on the Grounds of Sexual Orientation should therefore be requested to express an opinion on whether his adjudication was compatible in these respects with the constitutional liberties described above. The complaints were then referred to the Ombudsman against Discrimination on the Grounds of Sexual Orientation for a response concerning the issues specified in the memorandum. included the following in his agencys response. It should first and foremost be made clear that no action whatsoever was taken by the Ombudsman against Discrimination on the Grounds of Sexual Orientation against the individual involved in marketing. The reason for this was, in fact, respect for the constitutional right of individuals to express themselves freely in the mass media. Individuals enjoy protection from public measures that may affect the right to express ideas and opinions. They are not, on the other hand, entitled to demand that those with whom they are likely to make agreements should refrain from taking into account such circumstances as their public expression in different contexts of ideas that are for instance of a racist, xenophobic or homophobic nature. The scrutiny of the Ombudsman against Discrimination on the Grounds of Sexual Orientation focused therefore on how (), the and have come to terms with the fact that a commercial partner of the - an organization that receives funding for its activities from both the city and - has publicly expressed an attitude to homosexuals as a group that contravenes fundamental principles on human rights, principles, for instance, that are also enshrined in international agreements on human rights with which is bound by international law to comply. In retrospect, it could be considered that the distinction made here might well have been expressed more explicitly in the adjudication with which the Ombudsman against Discrimination on the Grounds of Sexual Orientation terminated the case. Naturally, I consider it regrettable if this may have given rise to any misunderstanding. There is no "right" for a trader to reach an agreement with an organization like the marketing agreement that existed between the individual in this case and VSK. Or, conversely, a traders potential clients are not obliged to enter into such a contract with the trader nor, when contemplating such a contract, to ignore factors that are not, from a narrow point of view, immediately related to the purpose of the contract, such as the traders reputation in certain respects. This applies similarly at the next level when a local authority or a commercial company is deciding whether specific funding is to be granted to an organisation which has entered into a contract with such a trader and on what terms. Applied to the case in hand, this means, therefore, that VSK was not obliged to renew the marketing contract when it expired without further discussion. When reaching a decision on commercial cooperation of this kind, an organization is perfectly free to take into account factors such as the attitude of those with whom they sign contracts on racism, for instance, xenophobia, homophobia and discrimination. Indeed, an organization in receipt of public funds has every reason to do so. When it comes to the actions of the , the importance of conducting a discussion of this becomes even more explicit. What is at stake here is the use of the taxpayers money. Just as there should be no obligation for a local authority to provide premises or contribute in any other way to events that include racist, xenophobic or homophobic features, it would seem natural when considering whether or not a specific public grant should be given to an organization to take into account how these funds will be used in practice, which includes the expression of opinions of this kind. Otherwise there is a real risk that public funds will, for instance, end up benefiting companies or organizations that either directly or through their representatives violate in word or deed the fundamental principle that all individuals are of equal worth. The Ombudsman against Discrimination on the Grounds of Sexual Orientation concluded the case in question by expressing criticism in his final adjudication of the fact that the offensive statements made in public about homosexual groups do not seem to have led VSK, the or to reconsider any aspect of their financial commitments to the individual responsible for marketing. The expression of opinions such as these by the Ombudsman against Discrimination on the Grounds of Sexual Orientation can in no way lead to legal consequences in any form for VSK, the , or any individual. and the Freedom of the Press Act stipulate that individuals are at to express opinions and ideas publicly. This has admittedly been interpreted to mean that public authorities may not "intervene" against those who avail themselves of this . When this freedom of expression has been used, however, this prohibition against intervention should not, in my opinion, be interpreted as referring to every subsequent expression of an opinion by a public body on the statement made. The duties incumbent on the Ombudsman against Discrimination on the Grounds of Sexual Orientation are laid down in the Ordinance with Instructions for the Ombudsman against Discrimination on the Grounds of Sexual Orientation (1999:170) and the Act on a against Discrimination in Working Life because of Sexual Orientation (1999:133). These stipulate that the Ombudsman is to take action to ensure that discrimination on the grounds of sexual orientation does not occur in any sector of the Swedish community. In view of the role of the Ombudsman against Discrimination on the Grounds of Sexual Orientation as a national agency for human rights the workings of the agency should also be considered in the light of the contents of the Principles for the activities of such agencies adopted by the General of the United Nations as resolution 48/134 with as one of its advocates on . These principles make it clear, for instance, that agencies working for human rights are to have the right to publicly circulate their opinions and recommendations. In view of the arguments advanced here, let me conclude by stating my belief that the adjudication of the Ombudsman against Discrimination on the Grounds of Sexual Orientation in the case in question was not incompatible with the constitutional guarantee of freedom of speech for every individual. . submitted a rejoinder to this response. In his adjudication of 10 2003, the Parliamentary Ombudsman, . , made the following observations. The instructions issued to the Ombudsman against Discrimination on the Grounds of Sexual Orientation require him, among other things, to counter discrimination in the labour market on the grounds of sexual orientation and to take action to ensure that such discrimination does not occur in other sectors of the community. This case concerns an intervention in connection with the second of these tasks. It goes without saying that my review is not concerned with the actual application by the Ombudsman against Discrimination on the Grounds of Sexual Orientation of the regulations that apply to the activities of the agency or the assessments that have been made on the issue of discrimination. As is shown by the memorandum of referral to the Om budsman against Discrimination on the Grounds of Sexual Orientation, I have, however, on account of the link between the complaints made to the Ombudsman and newspaper statements raised the issue of whether the critical observations and recommendations included in his adjudication of 14 2000 infringe the constitutional right to express opinions in printed publications without fear of official reprisal.