frsrdg · GS04JO1 · 2005-01-01 00:00:00 — When a prosecutor directs an investigation, cooperation is needed bet- ween the and the prosecutor as it is the latter who must decide what measures are to be taken while the have the resources required to im- plement them. In order to remedy the problem of undue delay in investiga- tions it is therefore important to develop sound routines to enhance coopera- tion between the and the prosecution offices. This is a problem that has been discussed for some considerable time but there is still reason to raise it. Like my predecessor, I have pointed out that if a prosecutors instructions or reminders to the in any individual case have no effect, the issue must be taken to a higher level in the organisation. The workloads of the courts There have also been several cases involving the public courts that have given rise to criticism of delays. The inquiries into these cases have revealed that certain courts are working under a great deal of pressure. In the case descri- bed here concerning the and Court of Appeal, the court re- ported that it had had for a considerable time a backlog of many unresolved cases and expressed concern over the tendency for many of its staff to show signs of burn-out. The Parliamentary Ombudsmen therefore considered that there was good reason for drawing the attention of the and to these disturbing circumstances. 2 004 /0 5:JO1 B I L A G A 10 Public hearings and judgments Another problem that has given rise to a number of statements by the Parlia- mentary Ombudsmen during the year is the way in which courts of law deal with issues relating to public access and secrecy. The second paragraph of Article 11 and Article 12 of Chapter 2 of the Instrument of Government con- tain the stipulation that hearings in a court of law are to be open to the public unless otherwise restricted by law. Public access is also a requirement entai- led by conventions on freedoms and human rights, for instance by Article 6 of Convention. It goes without saying that the fundamental principle that affords public access to hearings and judgments may at times conflict with the quite justifi- able concerns of individuals who have no for personal information to become public knowledge. It is, however, my firm opinion that very cogent reasons are required to justify any deviation from the principle that court hearings should be entirely open and that in certain cases no such deviations should be allowed at all in a state subject to the rule of law. Here I would like to draw attention to the standpoint adopted by my predecessor as Chief Parli- amentary Ombudsman, , on the possibility of concealing the identity of a detainee. A previous annual report (JO 2000/01 pp. 36, 44 and 50) contains referen- ces to adjudications on the way in which courts deal with non-disclosable personal information and this year once again there have been grounds for expressing an opinion on this subject. In a case dealing with public access to the public sections of two detention hearings, after a preliminary inquiry into suspected misuse of office had been terminated, certain statements have been made on unrestricted access to hearings. There are reasons for the Parliamen- tary Ombudsmen to continue to devote particular attention to these issues in the future as well. B I L A G A 10 20 04 /05 :JO1 2.2 , Parliamentary Ombudsman (Area of responsibility 3) My area of responsibility can be summarised in somewhat simple terms as comprising supervision of the application by state and local government authorities of the laws and statutes that apply in those sectors of the commu- nity normally referred to as the health, education and the social services. The total number of complaints received during the year in this area amounted to almost 1 400. This is not markedly different from the previous year. The proportions of complaints dealing with the various areas are also more or less the same. Here, however, it should be pointed out that statistically speaking this years figures deviate because since cases concerning the application of the Act concerning Support and Service for Persons with Cer- tain Functional Impairments (1993:387) have been classified under the social services and not, as previously, health and care. A considerable proportion of the complaints that fall into my ambit deal with issues that are common to all of the areas of responsibility of the Parlia- mentary Ombudsmen, for instance errors in the application of general princip- les of administrative law and laws relating to public access and secrecy. It appears that there is not always adequate knowledge of the regulations that apply in certain sectors of the community or that sometimes insight is lacking into the fundamental import of these regulations. In other sectors, the social services in particular, errors in the application of law in this respect are less often the result of ignorance but can more frequently be ascribed to heavy workloads, which we know from experience can increase the risk of procedu- ral errors in the treatment of cases. In terms of the number of complaints, the most extensive area subject to supervision by the Parliamentary Ombudsmen comprises the social services. Relatively few complaints concern cases involving social benefits but the majority result from child care issues dealt with according to the Act (2001:453) or the Care of (Special Provision) Act (1990:52). Here it should be pointed out that it is not the responsibility of the Parliamentary Ombudsmen to review the substance of decisions made by the social welfare boards, such as committing a child to care: this is a task for the Administrative Courts. On the other hand there have been occasions when I have criticised these boards for making such decisions without any adequate basis. My supervision focuses primarily on reviewing the way in which cases are dealt with and ensuring the correct application of the regulations, particu- larly those in the Care of , that are particularly important from the point of view of legal security. As most complaints concern cases involving small children, in one of the inspections carried out du- ring the year to focus my attention on cases that arose in connection with the Care of and the Act and which involved young people who have committed crimes or are, for some other reason, in the risk zone. Another law that applies to the social services is the Care of Abusers (Spe- cial Provisions) Act (1988:870). For a number of years now I have been able to determine that remarkably few complaints concern application of this act. 2 004 /0 5:JO1 B I L A G A 10 No change has taken place in this respect during the last year. Experience from my inspections of the social welfare offices also indicates that the num- ber of cases in this area is virtually negligible. One explanation could be that the voluntary initiatives prescribed in the Act serve their end. At the same time, however, it can be noted that the abusers who are commit- ted to care have often had the time to develop very serious addiction before they are treated. Often these individuals have double diagnosis problems, which means that together with, or as a result of, their addiction they also suffer from psychiatric disorders. The shortcomings that are not infrequently observed in the coordination of treatment and social care in cases like this can also be cited as examples of the lack of effective coordination in the area of health care and the social services, even though it is highly important in each sphere, both separately and jointly, to adopt a holistic approach when it comes to the dealing with cases that affect individuals. Another example of certain coordination problems, at least from an overall perspective, concerns the links between the social services and the psychiatric treatment of children and young people. Here it can be difficult to draw the line in allocating the responsibility for certain measures. A general impres- sion, based for instance on complaints about the failure to meet the needs of children, is, however, that many individuals fall between two stools unne- cessarily and do not receive adequate help. The list of similar coordination and demarcation problems in health care and the social services could be extended. Even though my supervision is primarily concerned with formal procedures, I have been able to determine that problems of this kind form a recurrent pattern in these areas. They are not therefore mere exceptions. The problems seem rather to be structurally determined and they become particu- larly explicit in times of financial restraint. It is of course important for a number of reasons above all from the point of view of individual citizens to resolve these problems without delay. does it seem reasonable to re- quire the county councils and the local authorities to allocate scarce resources to determining who, if anybody, should assume responsibility for the various measures required in cases concerning an individual. These remarks provide a natural introduction to some comments on the practical applications of the Act concerning Support and Service for Persons with Certain Functional Impairment. First of all it can be noted that com- plaints in this area are admittedly few in number but the local authorities are still encountering obstacles in implementing decisions made according to this Act, which is an Act of entitlement. It is still too early to come to any conc- lusions about whether the relatively new provisions of this Act enabling spe- cial charges to be levied on local authorities that fail to implement court deci- sions have had any effect on the situation. Otherwise it is possible to conclude that even though it has been in force for over ten years, the Act concerning Support and Service for Persons with Certain Functional Impairment has still not found its definitive legislative form. During the years the act has been amended on a number of specific points to supplement or clarify its provi- sions and a number of inquiries are currently under way in this area. It should be added that drawing a line between the Act and this Act is B I L A G A 10 20 04 /05 :JO1 not always completely straightforward when it comes to application of the law in individual cases. Where the educational system is concerned, it can be pointed out that complaints relating to higher education deal remarkably often with applica- tion of the provisions relating to public access and secrecy in specific cases. Complaints of this kind are also made about the school system, but there grievances about the way schools operate predominate. Many complaints concern inadequate provisions for children with special needs. Complaints of this kind are to some extent referred to the for Education, on the principle that the Parliamentary Ombudsmen should not anticipate or replace the due process of law and the functions of the normal supervisory agencies. It can be mentioned here that a relatively large number of com- plaints about the school system touch on issues that relate to the application of the provisions of the Parental Code on joint custody of the children of divorced parents. I have found grounds for referring a number of my adjudi- cations in these cases to the attention of the committee that is currently re- viewing these regulations. In this context it may be added that among the responses I have submitted during the year to drafts circulated for comment by the Government Offices, one involved the very comprehensive report of the 1999 tional legislation and the entirely new Education Act it proposed. Complaints about () are also included among those relating to the educational system. Previously com- plaints of this kind have accounted for a considerable proportion of the total number in this category. In recent years, however, complaints about the Board have declined appreciably and now amount to only about a score every year. In relation to the health and services it can be pointed out that, in addition to the general problems referred to above revealed by the complaints about the lack of coordination and an overall approach, a large number of complaints in this area also involve the application of the regulations on pub- lic access and secrecy to various cases. The statutes to which I devote particular attention in this area are those that concern compulsory mental care, i.e. the Compulsory Mental Care Act (1991:1128) and the Forensic Mental Care Act (1991:1129). This is of course linked to the fact that these statutes permit the deprivation of individual liber- ty and that it is therefore extremely important from the point of view of legal security that they are correctly applied. Appeal against decisions relating to compulsory mental care may, admittedly, be made to the administrative courts. As is the case for committal decisions concerning children pursuant to the Care of (Special Provision) Act, this means that as a rule I do not review the substance of cases in this area but focus on procedural cor- rectness. However, complaints from patients committed to care are very few in number, and my review is based to a very large extent on observations made in connection with my inspections. One cause for concern is that the resources currently available do not permit any major scope for an effective inspection system. The reason for this is that complaints, which have gradual- ly increased in number and complexity during the years, require a great deal 2 004 /0 5:JO1 B I L A G A 10 Striking a reasonable balance in determining where the main focus of the supervision is to be placed is in itself a general problem for the Parliamentary Ombudsmen, but it becomes particularly critical when it invol- ves sectors of the community where parliamentary control can, in practice, only be exercised through inspections. B I L A G A 10 20 04 /05 :JO1 2.3 , Parliamentary Ombudsman (Area of responsibility 4) My area of responsibility is very broad and extends over major sections of the state, regional and local authorities and many of the central agencies. During the year 1 200 cases were dealt with in this area. The wide variety of authori- ties and agencies makes it difficult for me to express any general opinion on the basis of my experience and observations during the year. I have therefore chosen to touch briefly on some issues that have been rai- sed, primarily in the major categories of complaints during the year. The largest category comprises the environmental courts, nature conserva- tion, environmental protection and public health, prevention of cruelty to animals, hunting and fishing. Particular attention has therefore been devoted to environmental issues during inspections of an environmental court, a and local authorities. This has concerned speci- fic aspects of the application of the Environmental Code. This code has been in force since January 1, 1999 and comprises a codification of regulations previously contained in a number of statutes on environmental issues. My interest has focused primarily on how effectively the organisation dealing with permit applications functions. This is a relatively impenetrable system and ascribes roles to the government, the County Administrative Boards, the , the environmental courts and the local authorities. The way in which it is organised is likely to create difficul- ties, especially for individuals; different regulations apply to different forms of activity, and review has been entrusted to both the administrative authoriti- es and courts of law. This is one reason why appeal processes in particular can vary to no small extent. In view of these circumstances, I have noted with satisfaction the work devoted by to simplification and clarification of the legislation. The observations and adjudications that I have accounted for during the year have mainly concer- ned the way in which cases have been dealt with from the point of view of the rights of individuals. This annual report contains an account of what could perhaps be considered a rather odd case involving the way in which a local authority committee dealt with a complaint about disturbing noise. Another large proportion of the cases dealt with has concerned the trans- port and communications sector. They have included, for instance, the way in which the County Administrative Boards deal with driving licence problems, the registration procedures, how local autho- rities deal with mobility services, parking permits and towing away vehicles, the administration of TV-licences by Radiotjänst in , and the way in which the and the Swedish Mariti- me Administration exercise supervision and the issue of permits. When in- specting the way in which one dealt with dri- ving licence cases, I noted the remarkable length of time taken by drivers to comply with a demand for the submission of a certificate on the sub- ject of alcoholism, for instance. The Boards representative explained that the long delays in the services gave rise to practical difficulties for those providing the certificates and that this was taken into account so that a period 2 004 /0 5:JO1 B I L A G A 10 of respite was granted if the doctor concerned requested it. The circumstances reported are unfortunate as they entail the risk that a driver whose licence should be revoked may continue to be entitled to drive. I intend to pay atten- tion to this problem in my future inspections. In dealing with the provision of mobility services by the local authorities I have paid particular attention to aspects of legal security such as consistency in the application of the regula- tions, the way in which decisions are worded and how appeals are dealt with. Cases of this kind, which are now classified as collective transport issues, are closely linked to the social services and this gives rise to confusion in the way they are dealt with and registered. Many cases have involved conditions at the labour market authorities and the unemployment benefit funds. The funds are now subject to regulations extending public access to their records and this has affected the way in which my supervision has been organised. At the same time the of the new Inspectorate for Unemployment Benefit altered to some extent the focus of the Parliamentary Ombudsmens supervisory procedures in this re- spect. Complaints in this area concern to a very great extent the dissatisfac- tion of the unemployed with the failure of the employment exchanges to help them find work. Grievances are often directed at the procedures and decisions made at the employment exchanges about various labour market measures. Questions relating to coordination of the exercise of their powers by the emp- loyment exchanges and the unemployment benefit funds come to the forefront in connection with deregistration and queries when, for instance, employ- ment exchanges fulfil their obligation to notify the funds if they suspect for some reason that an unemployed individual is no longer at the disposal of the labour market. Here, as in other areas, the Parliamentary Ombudsmens inqui- ry may not concern the substance of a decision but must focus instead on more formal aspects, such as the way in which the decision was made and the provision of information about possibilities of appeal. My area of responsibility also includes the administrative courts. During the year I have inspected a county administrative court. The general impres- sion gained from the supervision of the administrative courts is that they are well organised. In some courts, however, there are disturbing backlogs of cases that have not been appraised. I have devoted particular interest to the way in which the administrative courts treat cases involving psychiatric issu- es. In one instance I found grounds for criticising the way in which cases of this kind were dealt with. The majority of the inquiries in my area of responsibility that derive from legislation on aliens originate in complaints from asylum seekers who have not been granted asylum or permits. These complaints are made against both and . They often deal with the treatment of cases involving children, particularly the application of the regulations in the Aliens Act on taking what are termed humanitarian aspects into consideration. Most of them raise questions on the actual application of the law, with which the Parliamentary Ombudsmen neither can nor should interfere. In some cases the authorities have been criti- cised for undue delay in their treatment of cases. In this context, long delays B I L A G A 10 20 04 /05 :JO1 by Swedish embassies abroad or are particularly unfor- tunate when they concern applications for permits for next-of-kin. The lack of resources at these authorities obliges applicants to wait for periods that cannot be considered acceptable. During the year I have also concluded a major inquiry involving cooperation between and the authorities in connection with the enforcement of an expulsion order. I hope that many of the problems that have arisen in this area can be resolved by the reduction in the number of asylum seekers that has taken place in recent years. It is also important to ensure clarification of the legislation on the basis of the recommendations made by the recent report SOU 2004:74 Legislation on aliens from the viewpoint of the courts. The cases that arise in my area of responsibility involving the exercise of the powers of the local authorities deal predominantly with planning and issues. A great deal of attention is devoted to how the local authoriti- es apply the relatively complicated provisions of the Planning and Act in our inspections and in dealing with complaints. Here too my supervi- sion concentrates mainly on formal procedures and focuses on ensuring that all concerned have been able to express their opinions and that there has been no undue delay in dealing with cases. There are often shortcomings in the wording of decisions and the reports in the minutes of local authority commit- tee meetings. Throughout my area of responsibility issues are continually arising that re- late to freedom of expression, the freedom of the press, public access and secrecy. There is often a lack of fundamental knowledge of these areas, not least in public undertakings owned by local authorities. In cases involving companies of this kind I have often had to present an account of fundamental features of the legislation and have been able to see that a great deal of trai- ning is needed. This has often dealt with the lack of delay required when public documents are requested and the need for formal decisions which af- ford opportunities to appeal. There is a great need of additional legal expertise and training in the pub- lic undertakings owned by local authorities as well as in the local authorities. In recent years I have had the privilege of being able to draw attention to this need in lectures at the annual meetings of the Authority Legal Officers. Finally, during the years a large number of drafts have been circulated by the Riksdag and the Government Offices for comment. In my opinion the Parliamentary Ombudsmen have an important role to play in this context: the insights into the workings of different authorities they have gained can shed light on issues that are significant in the legislative process. Unfortunately, current workloads do not permit a great amount of effort to be devoted to responding to these drafts. It is particularly unsatisfactory to receive a flood of draft proposals just before the summer holidays with requests for responses by the end of the vacation period. 2 004 /0 5:JO1 B I L A G A 10 2.4 , Parliamentary Ombudsman (Area of responsibility 2) Inmates are to be treated with respect for their human dignity.