frsrdg · GR04JO1 · 2004-01-01 00:00:00 — Earlier during the same evening the had received intelligence re-ports that activists could be expected to prevent the working from taking place in the National Museum or disturb it in some way, but had no further details about how this was to be organised. Fairly late during the evening information was received that a number of individuals had assembled at the southern end of Kungsträdsgården, where a barrier had been erected. To begin with this was not a major cause of concern. Subsequently, more and more individuals arrived on the scene, obstructing traffic and later the escorts who were to take that route. There were about 100-200 of these individuals. They were shouting and screaming. There were no placards expressing any opinions of any kind, nor was it a demonstration for which permission had been granted. was able to follow what was going on by means of the video link. When the crowd was being moved from the junction of the two streets people suddenly started running northwards along . A chaotic and serious situation developed. Objects were thrown at the officers and some individuals also succeeded in forcing their way past the barriers. There was concern that it would later be impossible to guarantee the safety of the escorts. At this stage one of the Chiefs of Staff, probably , came to him to say that a decision pursuant to Section 13c of the Act was required from him, which he provided. His decision meant that permission had been given to remove the crowd in some suitable , if this became necessary. As decisions on the execution of a decision by the Authority are normally delegated to the senior officers responsible for their implementation, he said nothing about the method to be used. In principle, therefore, officers in overall command never decide how a decision of the authority is to be implemented at a detailed operational level. is unsure whether it will be possible to identify any specific individual responsible for deciding which destinations the buses would be given. One of the duties of the staff was to determine how those removed would be able to make their way back and as this required a great deal of telephoning and consultation of timetables etc. several officers were involved. Different individuals may make these decisions on different occasions. Doubts have recently been raised about this procedure. On the last few occasions on which he has acted as overall commander, he has therefore checked on the way in which removal has taken place and has also on a number of occasions issued specific instructions on how the order is to be implemented. This was not the case, however, on the evening in question. After making his decision about the removal, he was told that the buses were to be directed to . He raised this matter with and told him that in view of the distance involved it could be argued that was not a suitable destination. He consulted book Ordningsstörande brott (Disturbing the Peace) and noted that the author pointed out that removal involving the transport of individuals more than some tens of kilometres was not permissible but that, on the other hand, it must take a certain amount of time and there must be a certain amount of difficulty for those removed to make their way back if the measure was to serve its purpose. pointed out to that it would be inappropriate to arrange to transport the individuals too far. He also stated that his interpretation was that if the distance involved was less than 20 kilometres no objections could be made to the removal and that this still left a good for error. In this context and were mentioned, both destinations offering the possibility of return by suburban train. He advised not to remove individuals to a destination as remote as . He did not request a final report. He does not believe that the documentary record of the event completely fulfills the requirements laid down in the directives issued by and the local authority. In his adjudication of , the Chief Parliamentary Ombudsman, . , made the following observations. The legal regulations etc. The tasks entrusted to the force include the prevention of crime and other disturbances of public order or security together with the maintenance of public order and security, prevention of any disturbance of the same and intervention when such disturbances have taken place (Section 2 of the Act). In the execution of these duties, interventions by officers shall comply with the provisions laid down by law or other statutes and be justifiable in terms of the object of the intervention and other circumstances. If coercion has to be used, this may only be of the kind and to the extent required to achieve the intended outcome (first paragraph of Section 8 of the Act). If the behaviour of a crowd that is not a public meeting or a public event as laid down in the Public Order Act (1993:1617) constitutes a disturbance of the public order or an immediate threat to it, those participating in the crowd may be dispersed or removed from the area or locality in which they have gathered, if this is necessary for the maintenance of public order. A measure of this nature may only be taken without a preceding decision by the Authority if urgency makes it impossible to wait for such a decision (Section 13c of the Act). Section 27 of the Act lays down that a record must be kept of all interventions that result in the dispersal, removal, detention or arrest of individuals. This record must show clearly who made the decision to intervene, the grounds on which the decision was based, the time at which it was made, the officer or officers involved in the intervention, those subject to it, together with the time of the intervention and any other circumstances that may have arisen. The responsibility for recording the details about the decision rests with the officer who made it and for other details with the officer in charge of its execution. has issued regulations and general guidelines on the maintenance of the records stipulated in Sections 27 and 28 of the Act in FAP 100-2 (RPSFS 2000:15). In addition, the County Authority has issued official regulations (1998:09, 100-B) on the documentary records to be kept in connection with dispersal or removal pursuant to the Act. The enquiry in this case has focused mainly on issues relating to the application of the provisions of Section 13c of the Act on the removal of those participating in a crowd and the stipulations in Section 27 of the Act on the documentary records officers are required to keep. I shall deal with the first of these questions to begin with and then go on to express an opinion on the documentary record of this intervention. The removal of participants in a crowd As is revealed by the enquiry, a working was held for EU Heads of State and Prime Ministers at the National Museum on the evening of 23 2001, and at the same time a few hundred individuals, mainly young people, assembled in the area around . shows that there was a great deal of movement among the crowd, some screaming and shouting and it has also been reported that some young people were seen to be picking up stones. According to the situation that arose was chaotic and serious and made it impossible to guarantee the safety of the escorts later. It was in this context that he decided on behalf of the authority that the gathering was to be removed pursuant to Section 13c of the Act. This provision lays down that if the behaviour of a crowd that is not a public meeting or a public event as stipulated in the Public Order Act constitutes a disturbance of the public order or an immediate threat to it, the Authority may decide that the participants in the crowd may be dispersed or removed from the area or locality in which they have gathered, if this is necessary for the maintenance of public order. In this context it must be pointed out that any intervention by the on the basis of Section 13c of the Act may only, of course, be directed at the individuals who can be regarded as participating in the crowd (cf. , Polislagen, En kommentar (Commentary on the Act) 4th ed., p. I have found no grounds for calling into question the decision made by on removal pursuant to Section 13c. Moreover, nothing has come to light which enables me to express an opinion on the issue of whether all those subject to the intervention could be regarded as participants in the crowd. Unlike the provisions of Section 13 of the Act, which contains regulations about interventions against single individuals for the purpose of maintaining public order or preventing criminal behaviour, Section 13c does not provide any grounds for the detention of any person. Removal pursuant to this provision may therefore only be effectuated in a that cannot be considered, in point of law, to involve detention. In addition, as with other forms of intervention, great importance must be attached to the principles of necessity and proportionality laid down in Section 8 of the Act in the exercise of this provision. In this case, a total of 194 individuals were removed in four buses to localities that lay between 15.8 and 25.6 kilometres from the site of the assembly. The question therefore arises of whether the in which the executed the decision also de facto involved their detention instead of their mere removal. In an adjudication of 22 2002 (. 3489-2001) which dealt with the removal of demonstrators to localities that were between 11.1 and 28.9 kilometres distant, I dealt with the issue of the content of the concept of removal. This included the following statement. It is of course impossible to specify any maximum distance for a removal. This has to be determined from case to case. In the travaux préliminaires to the Act, removal is described as a measure which leads to an individual being taken away from a specific location (Government 1983/84:111 p. As examples of the more usual form of removal, cited the removal of an individual from the place at which he is disturbing the peace or from a certain area such as a pleasure ground or a sports arena. Removal can, according to the Committee, also involve transporting an individual some distance. However, unless this distance is short and the coercive intervention brief, the measure could be regarded as constituting detention instead. One example of this referred to by the Committee is the kind of intervention in which the escort someone home, which is to be considered detention rather than a removal (1983/84:27 p. The commentary on the Act contains the observation that a removal may involve ensuring that an individual moves some short distance either on foot or in a vehicle (, Polislagen, En kommentar (Commentary on the Act) 3rd ed., p. It has also been claimed in the reference works that if removal is to have any effect, those removed must at least encounter some difficulty in returning to the place from which they were taken and that in certain cases a distance of some kilometres could be acceptable (brott, p. The issue of the content of the concept of removal was dealt with by the of Appeal in its judgment of 26 February 1996 in case B 1890/95, which concerned an intervention based on Section 13c of the Act. The opinion of the Court of Appeal was that the removal of an individual from on in to the southern suburb of constituted too great a distance to be covered by the concept of removal and that the measure had in point of fact therefore developed into a detention. In my opinion there can be no doubt that a procedure involving the transport of individuals to places at a distance of no less than 11.1 kilometres and at most 28.9 kilometres away - not least in view of the consequences this had in terms of the duration of the intervention for the demonstrators - cannot be considered to have been a removal but a form of detention instead. Whether or not it was possible to make ones way back from these destinations by public transport has no relevance in this context. With reference to this last point, it should also be added that nothing has come to light in the course of the enquiry to suggest that any action was taken to establish whether the individuals removed had sufficient funds to pay for their return journey. has claimed that there are no grounds for asserting that a removal should in point of law be regarded as detention merely by reference to a specific distance. According to , all of the prevailing circumstances must be taken into account in determining if a removal is in fact to be considered as a detention. I can endorse this point of view. The significance of circumstances such as the duration of the intervention must, for instance, be appraised in this context. However, in using the term removal the legislators have desired to emphasise the great significance that must be attached to the distance involved in determining the legal status of an intervention of this kind. Here I can refer to the statement of that unless this distance is short and the coercive intervention brief, it could be argued that in actual fact it constitutes detention instead. In addition the Committee points out that when removal is the measure adopted on any specific occasion, it clearly constitutes less of an intervention than detention (1983/84:27 pp. 32 f.). seems to consider that the issue of removal should be viewed differently when the disturbance of the peace is caused by a public gathering rather than an individual. For this reason, I should like to emphasize that there are no grounds for asserting that the concept of removal expressed in Section 13c of the Act differs from that in Section 13 of the same In connection with the enactment of Sections 13a-13c of the Act, reiterated its earlier statement on the concept of removal in Section 13 of the same act and went on to declare that, as no new definition of the legislative concept of removal was being proposed by the government, this standpoint continued, according to accepted legal doctrine, to provide guidance in determining the substance of the concept (1997L/98: JuU7 p. 11 f.). Furthermore there is reason to point out that the purpose of removal as laid down in Section 13c of the Act is restricted to the maintenance of public order in the place or area from which the removal takes place. Removal may not therefore be invoked to prevent further disturbances from taking place elsewhere. has also stated that in his discussion with he referred to an opinion expressed by that a removal of some tens of kilometres would be unacceptable and explained that he interpreted this opinion to mean that no objection could be raised if the distance was less than 20 kilometres. has expressed his opinion on this issue as follows (Ordningsstörande brott, 2nd. Removal means either that he is taken away from the area to somewhere immediately outside it, or he is transported a short distance away from it. No precise minimum distance can be specified, but this has to be assessed from case to case. In making this assessment consideration should also be given to the public transport available. The better the public transport system the further one should be entitled to drive. One requirement, if a removal is to have any purpose, is that there should be some difficulty in returning to the area from which removal took place. In specific cases a distance of a few kilometres must probably be acceptable. On the other hand it can never be acceptable to drive someone some tens of kilometres away. Such an action must be considered to constitute temporary detention. opinion that in specific cases a distance of a few kilo-metres is acceptable is, in my opinion, compatible with the statement from the travaux préliminaires cited above. One evident conclusion to be drawn from this opinion is that a distance of some tens of kilometres can never be accept-able. statement on this respect cannot, however, if read in context, reasonably be interpreted to mean that transporting someone 19 kilometres, for example, would be acceptable. In this case, a total of 194 individuals were transported in four buses to places that were between 15.8 and 25.6 kilometres away. In the interviews with the policemen concerned, the estimated duration of these journeys was about 30 minutes. When this was checked in connection with the preliminary enquiry, the estimated time taken to drive to the first locality was 19 minutes and to the last 31 minutes. In this connection it should be borne in mind that some time must reasonably have elapsed from when the removal began until the departure of the buses. The intervention of the against those taking part in the assembly was therefore not brief and the distances covered cannot be considered short. In my opinion, therefore, there is no scope for any other assessment than that the execution by the of the removal decision should be considered in point of law to have constituted detention. The fact that it was possible for the individuals to use public transport to make their way back to from the points to which they had been taken is of no significance in this assessment, as the decisive factors are the distance in-volved and the duration of the intervention. The question of the possibilities open to those who have been removed to make their way back is, on the other hand, interesting when it comes to assessing the inconvenience caused by the intervention. In conclusion, it can be stated that the actions of the resulted in 194 individuals being subject to detention for which there was no basis in law. This is therefore a case involving disregard of the obligations applying to a task in the exercise of authority. However, the enquiry has not enabled determination of the identities of the officer or officers at the Authority who decided where these individuals were to be taken and further enquiry cannot be expected to clarify this matter. With this in mind, on 17 February 2003, to terminate the preliminary enquiry. It should be noted that has stated that nowadays when he is given overall command he monitors the way in which removal has taken place and that he has also issued specific instructions on how the decision is to be executed. Section 27 of the Act lays down that a record must be kept of all interventions that result in the dispersal, removal, detention or arrest of individ-uals. The regulation also provides more details about the information such records should contain. My enquiry has disclosed that a record of this occurrence was made using a form headed "Record pursuant to Section 27 of the Act of dispersal/removal and of body searches". According to this record, decided at 10 p.m. on 23 2001, that pursuant to Section 13c of the Act 200 individuals were to be removed. The grounds given for this decision were "Approx. 200 young people disturbing the peace. Shouting, screaming in order to disturb the major and the escorts from the ". There is no record of which individual officers took part in the action but instead a list of the detachments involved. There is a note of the number of individuals transported to , , and but it can be established that in three of these cases there is no real indi-cation of their final destination. The record does not reveal the time at which the action took place but a reference is made to times recorded in the operational log. The log contains information on when the buses departed. Moreover these records contain no information on the identities of those removed. As stated in my adjudication of 22 2002 (. 3489-2001), in a situation like this one in which the intervention affected 194 individuals, no criticism can be made if the information about the identities of the individuals affected is restricted as it was in this case. As I then pointed out, too stringent requirements about records of the identity of those concerned may make it impossible to execute a dispersal or a removal in which large numbers of individuals are involved. Where the documentary records of the other aspects of this event are concerned, it can be established that they do not fulfil in every respect the re-quirements laid down by the Act. As I have already pointed out on numerous occasions, it is of great importance from the point of view of accountability and the rule of law that satisfactory documentary records are kept of actions. What has otherwise come to light gives me no cause to invoke any measures or express any opinion. This case concludes with the serious criticism that has been expressed. Criticism of at in connection with its treatment of a case relating to the segregation of a detainee admitted for a forensic psychiatric examination. (Registration number 278-2001) A complaint was submitted to the Parliamentary Ombudsmen by H.Z. He included the following information. On 9 January 2001, as he was being taken from the Forensic Psychiatry Unit to for an EEG examination, he protested when the staff wanted to handcuff him. After some altercation he and a warder started to "shove" each other. As a result the warder decided that he should be placed in isolation. He was locked in at 11.30 a.m. and not released until 11 a.m. the following day. Initially a request was made to the Forensic Psychiatry Unit at for the journals relating to H.Z. and his segregation from other inmates on 9 and 10 January 2001. These journals revealed that H.Z. had been admitted as a detainee for a for-ensic psychiatric examination and that health care was to be provided as laid down in the Health and Act (1982:763). The journal contain-ed the following entry for 11.30 a.m. on 9 January 2001 (on a file card). Appointment for EEG today. A discussion about the use of handcuffs results in H.Z. slamming the door of the office. When the staff leave the office to talk to him about this the patient makes threats and a struggle ensues. Patient isolated according to the Detention Act. A journal entry for January 2, 2001 (which according to the head of the unit, , should correctly be dated January 9) contained the following. In connection with the admission of the patient to for an EEG examination he was informed that as a detainee he was obliged to wear handcuffs. He became extremely indignant about this and said that he refused to come with us. It was difficult for him to calm down and his indignation developed into aggression. He shoved the senior nurse against a wall and tried to incite his fellow-patients to take part in some form of demonstration. It was therefore necessary to use the alarm to summon assistance. He was taken off to isolation, where he continued to be indignant and upset but no longer aggressive. It was decided that he should be segregated in accordance with the provisions of the Detention Act and that he was to remain in isolation overnight. It took a few hours before he was calm and collected enough to be spoken to and reasoned with. He was never psychotic but only behaved aggressively for a short period. By the following morning he could be allowed to return to the unit. was requested to submit an enquiry and to express an opinion on the formal requirements relating to the segre-gation of H.Z. This response was to contain an account of the legal provisions on which the segregation was based. submitted a re-sponse signed by its Deputy Director General, . This response made the following statements. was admitted as a detainee at the Forensic Psychiatry Unit at on in order for a forensic psychiatric examination to be made. On 9 January 2001, in connection with an EEG examination at , it was considered necessary for reasons of security to handcuff him. He became extremely indignant about this and said that he refused to leave. It was difficult to calm him down and his indignation developed into ag-gression. In view of his threatening behaviour and the struggle that arose he was transferred at 11.30 a.m.