frsrdg · GS04JO1 · 2005-01-01 00:00:00 — I attach the contract drawn up between and its pu- pilsthe schools copy and a pupils copy as 2 and 3 (see below, Parliamentary Ombudsmans comment). The school did not con- tact the parents of pupils in grade 8 as nothing suspicious was found. Posters in the entrance I attach copies of the posters on display in the entrance. 4 (not inc- luded here, Parliamentary Ombudsmans comment). No pupils were turned away from the school. Part of the contents of the letter sent by to the parents and guardians of pupils at consisted of the following. In view of the television report and the newspaper articles, I would like to provide you with the following information. On Thursday 23 games involving balloons filled with water and water pistols took place during school hours and as a result certain pupils were drenched. This was an unpleasant experience for both pupils and members of the staff. At we endeavour to maintain pleasant working condi- tions for everyone at the school during school hours. We apply the Workplace Environment Act, the plans laid down for schools in the local authority of and our own rules for behaviour. The school is a workplace where everyone both staff and pupils must be able to go about their work, collaborate and trust each other. Everyone should do their best to ensure that the environment is pleasant and to make the work enjoyable. This is best achieved by showing consideration, courtesy and respect for each other. We do not consider that this has been complied with when either pu- pils or members of the staff risk being drenched at their workplace. B I L A G A 10 20 04 /05 :JO1 Before Friday 24 the staff were informed by worried pupils that there was to be a more intensive water battle on Friday. Together with the staff I then decided to post notices at all the entrances forbidding water pistols and the like admit students through one of the entrances ask them to open their bags and hand over balloons and water pistols. Pupils who did not want to open their bags were asked to wait so that they could talk to a teacher who could explain why this measure had been adopted. A note was also made of the names of these pupils 9 in total so that a discussion could be arranged with their . No pupil was refused admittance to the school. Even the pupils who refused to open their bags were allowed to enter. Some pupils have amused themselves by throwing their friends into the pond in Ahllöf Park. Nobody should be submitted to such humiliating treatment or the risk of injury it entails. For this reason the pond has been emptied. We hope that all parents will cooperate with us at the school and speak to your children about the importance of arranging a dignified and pleasant end-of-term ceremony. Attached to the response was a form headed Contract drawn up bet- ween and the pupil which contained the following section. This contract is a requirement for possession of a locker. This contract permits the principal, the principals deputy together with the caretaker or the caretakers deputy to procure entry to a pupils locker if there is a well-founded suspicion that the pupil is storing any of the fol- lowing in the locker. However, the pupils will first be given the opportunity to open their lockers themselves. If pupils refuse to do so or cannot be contacted, the school has the rights specified above. On every occasion entry is procured to a locker by the school, the pupils parent or guardian will be informed. The may also be notified. All substances legally classified as narcotics. All beverages legally classified as alcohol (i.e. alcoholic beverages with an alcohol content in excess of 2.25 per cent by volume). All weapons, including knives and other objects, as laid down in Section 36.3 of the Criminal Code. 4.STOLEN or RECEIVED PROPERTY. 5.SYMBOLS or anything else that embodies INCITEMENT TO RACIAL HATRED The second sentence of Article 6 of Chapter 2 of the Instrument of Govern- ment stipulates that all citizens are protected in their relations with the public administration against physical searches, house searches or similar encroach- ments. This protection is not absolute but Article 12 of Chapter 2 of the In- strument of Government lays down that it may be restricted by law, for in- stance, to achieve a purpose that is acceptable in a democratic society. 2 004 /0 5:JO1 B I L A G A 10 amples of this kind of legally endorsed restriction of this protection may be found in the provisions of Chapter 28 of the Procedural Code which entitle courts, prosecutors, investigating officers and in exceptional cases officers to order house searches and physical searches in the course of the investigation of a criminal offence, subject to certain conditions. Schools in the state educational system are included in the concept of the public administration laid down in Article 6 of Chapter 2 of the Instrument of Government. However, there is no legislation that entitles a principal or any other school official to invoke measures such as physical searches or house searches against pupils. What is decisive in determining this case is therefore whether the search of a bag and a locker is to be regarded as a physical search or a house search in the meaning of these terms in Article 6 of Chapter 2 of the Instrument of Government. From the response it appears that the principal together with other members of her staff decided to ask the pupils to open their bags and hand over bal- loons and water pistols. Pupils that did not want to open their bags were asked to wait outside the school so that they could talk to a teacher. A note was made of the names of these pupils so that discussions could be arranged with their and they were then admitted to the school. To begin with, I can determine that the inquiry provides no support for the allegation that a search was made of any wallets or that any pupils were refu- sed admittance to the school. When, subsequently, we turn to the request to the pupils to open their bags, I find as follows. Physical search involves not merely the search of what somebody is wea- ring but also objects that they may be carrying, such as a bag for example, (see Government 1975/76:209 p. In this particular case, it has not been made clear whether the bags were searched by the staff of the school or merely opened so that their contents could be inspected. This notwithstan- ding, the only conclusion I can reach is that the measure must be considered to constitute a physical search in the sense intended in the Instrument of Government. The schools administrators were not, therefore, entitled to in- voke the measure without legal support. As pointed out above, there is no support in law for the actions of the schools administrators. They cannot therefore be exonerated for the measure they adopted. The administrators of the school have a responsibility, laid down, for in- stance, in the Work Environment Act (1977:1160) and the educational statu- tes, for maintaining a sound working environment. The administrators must therefore be considered to possess the power to invoke some measures within the framework of their general accountability for the maintenance of order in the school. In this case, according to the official response, the administrators took the measures they considered appropriate to protect the pupils and staff from a water battle. It is of course incumbent on school administrators to prevent games that may degenerate and lead to violence, for instance, or da- B I L A G A 10 20 04 /05 :JO1 Indeed I have some sympathy with the view that the administrators were required to take effective action in the case in question. In their endea- vours to protect pupils and staff, however, the administrators must adopt methods and recourses supported by current law. I do not, on my part, have enough knowledge of the circumstances in this case to enable me to suggest any other conceivable methods of maintaining order in the school. I will therefore refrain from expressing any opinion on this aspect of the issue. In this context, discussion may be justified of whether school administra- tors need extended powers to enable intervention to discharge their responsi- bility to maintain order in a school. To what extent the educational statutes should be supplemented in this respect is a question that may be of interest to those involved in the current legislative review at the and in discussion of a new Education Act. Search of pupils lockers The Parliamentary Ombudsmen have previously found no support for the view that the use of a duplicate key to open a pupils locker and search its contents constitutes a measure that can be considered a house search in the sense intended in the Instrument of Government (see the Parliamentary Om- budsmens Annual Report for 1978/79, p. 396 and 1988/89, p. The latter adjudication contained the following observation by the Parliamentary Ombudsman, . What is decisive in coming to this conclusion is that I do not view a pu- pils locker as a space in which a pupil may conceal property from the school administrators. It is, however, extremely important for the pupils to understand the terms on which they dispose of their lockers. Otherwise there is a risk that they may feel that they have been subjected to maltre- atment that has violated their integrity in connection with events such as the inspection of the lockers at . It should therefore be incumbent on the school to inform pupils when they are allocated lockers that they are intended only for the safekeeping of books and other mate- rial required for their schoolwork and that they are not secure in the sense that they are protected from inspection by the school authorities or by the constitutional prohibition against house searches. In addition, pupils sho- uld be informed that the school administrators have access to duplicate keys to the lockers. The statement submitted by the principal and the copy of the contract attached to the official response clearly indicate the conditions for possession of a locker, including, for instance, that on certain conditions the principal can procure entry to the lockers. Therefore the pupils have been informed about the terms on which they dispose of the lockers. According to the contract, before the principal can procure entry to a lock- er there must be a well-founded suspicion that it is being used to store an object listed among the prohibited items. The article in alle- ges that in this case the search was based on an anonymous tip-off. In his response, the Director of Education states that there was a suspicion that nar- cotic substances were being kept in one or more of the lockers. Whether the suspicion that this gave rise to could be considered well-founded or not is a 2 004 /0 5:JO1 B I L A G A 10 matter of judgement. On the whole, the Parliamentary Ombudsmen are relati- vely cautious about expressing opinions on such issues. I find no reason to probe any further or to take a standpoint on whether the correct decision was made in this case or not. To sum up, I find no reason to criticise the school administrators in any way in connection with the search of the lockers. However, I have noted that the parents and guardians received no notification of the search, even though the contract described above stipulates that this is required on every occasion. After having expressed the criticism above concerning the search of the pu- pils bags, I am terminating the case. In view of the observations about extending the powers of school administ- rators to intervene in order to maintain order in a school, I am forwarding a copy of this adjudication to the for its attention. 3.3 An inquiry initiated by the Parliamentary Ombudsmen into the cooperation of with the authorities in a case involving enforcement of a deportation order In an adjudication issued on 11, 2003, the Parliamentary Ombudsman, . , made the following observations. Initiation of the inquiry Reports in the media during included the following allegations about the way in which a case involving enforcement of a deportation order had been handled. F.K., registered as a Bosnian citizen, was summoned by letter to the Swe- dish Migration Boards office in on February 14, 2001, for in- formation about work-placement. arrived on the day in question and spoke first to a case-officer. When he left the case-officers room he was arrested by the and taken to the refugee centre at . He was depor- ted from to on February 22, 2001, leaving his wife and their two small children in . They maintained that F.K. had been decoyed into a trap. to inquire into this matter as a special case. In an official response dated 28, 2001, made the following statement. took over main responsibility for the administration of expulsion orders on January 1, 1999. Where the event in is concerned, the case relating to the return of the indivi- dual in question has never been dealt with by the Swedish Migration B I L A G A 10 20 04 /05 :JO1 Board nor previously by . As laid down by the legislation then in force and current legislation, it was always the responsibility of the authorities. When the expulsion order gained the force of law it was therefore sent directly to the authorities for enforcement on 31, 1998. The task assigned to us includes responsibility for providing organised activities for individuals registered in the reception system. This also ap- plied to the individual in . In accordance with the Boards routines, the provision of activities of this kind for individuals subject to valid expulsion orders is to continue until fourteen days before the date on which their departure has been booked. Participation in organised ac- tivities of this kind is a requirement before a full daily allowance can be paid. It was in connection with these routines that the individual in Norrkö- ping was summoned by his case officer. We attach an account of the event from the Boards unit in Norrkö- ping where it took place. As a result of the event in question and the attention it has attracted, the administration of has given the entire organisation the task of reviewing current routines for cooperating with the . This task involves not only situations where individuals have been served with valid deportation orders but also review of the routines in which we need expertise and also in other contexts, for instance the enforcement of detention orders in connection with the inquiries rela- ting to applications for asylum. As a result of this review, it has been found that in some cases there are no routines for making documentary records of the information which, in practice, is always provided to those applying for asylum or permits. The necessary amendments and updating of current descriptions of routines is taking place. The account attached to the official response contained the following infor- mation. travelled together with his wife and one child to in January 1997 and applied for asylum. His application was rejected on , 1997, by (now ) which also then decided that he should be expelled. He received notification of the decision on 14, 1997. Appeal against the decision was submitted to , which rejected it on 31, 1998. sent its decision to the Authority in , at the time of the decision the agency responsible for en- forcement of the expulsion order. did not assume initial responsibility for the enforcement of expulsion orders until January 1, 1999. Between October 1998 and February 2001, the K. family had submit- ted seven (7) applications as provided by Section 5b of Chapter 2 of the Aliens Act, commonly called new applications, of which all had been rejected by . On January 19, 2000, the Permit and Reception Unit of in con- ducted a review of old cases which the authorities were respon- sible for enforcing and where the deportee had not been registered in the Boards reception system. One of the Migration Boards duties as the central agency for immigration is the regular monitoring of the progress of cases and the expected date of enforcement. Reviews of this kind are conducted in collaboration with the authorities. On February 5, 2001, sent a letter to those re- sponsible for F.Ks work placement as no report had been submitted on 2 004 /0 5:JO1 B I L A G A 10 This letter was returned with the superscript addressee unknown. On February 7, 2001, therefore sent a letter to F.Ks home address so that he could help to clarify confusion about his participation in the work placement and any discrepancies that may have arisen. A similar letter was at the same time sent to another individual who had been given a work placement with the same voluntary associa- tion. During the period February 510, 2001, the authorities contac- ted number of occasions. To begin with their queries concerned F.Ks home address and later where he could be found during the day. informed the of the home address registe- red with the Board and told the that he had been given a work pla- cement and should be found there during the day. also referred to the doubts entertained about the address of this work pla- cement and that F.K. had therefore been summoned to the Migration Boards offices on February 14 to sort out any discrepancies. The authority asked whether it would be possible for officers to come to the Migration Boards offices on that date to speak to F.K. The Board could find no reason to object to the presence of the on its premi- ses in order to speak to F.K. No discussions about decoying F.K. to the Boards offices ever took place with the and from the point of view of they would have been pointless as all the time his home address was on file and he could be contacted there if ne- cessary. came to the Boards offices together with another indivi- dual on the same work placement, the lack of clarity about the address at which he was working and the attendance reports was resolved. was then informed that there were officers on the premises and asked whether he had any objection to speaking to them. stated that he had nothing against talking to the officers and left the Migration Boards offices with them calmly and with no fuss. During my informative visit to on 6, 2001, I was able to ascertain the Boards general opinions on cooperation with the (see case file 2946-2001). then submitted a revised agreement with dated 25, 2001, about the division of responsibilities between and the authorities in the enforcement of expulsion and deportation orders (GDM no. 8/01). I have also been provided with access to file K 11251-01 by the authorities in the county of . The legal regulations etc. Since January 1, 1999, as laid down in Section 11 of Chapter 8 of the Aliens Act (1989:529), decisions concerning deportation or expulsion are in princip- le to be enforced by . In certain specific cases listed in this section, may refer a deportation or expul- sion order to the authorities for enforcement, if the deportee or expellee is a fugitive, cannot be traced without assistance or if it can be assumed that enforcement of the order will require coercion. B I L A G A 10 20 04 /05 :JO1 Deportation or expulsion orders issued before the end of 1998 and referred to the authorities but which had not been enforced before January 1, 1999, are dealt with according to the provisions that previously applied. These laid down that the authorities had overall responsibility for the enforcement of deportation or expulsion orders. Section 12 of Chapter 8 of the Aliens Act lays down the following: Decisions of authorities on the refusal of entry, decisions by the Mi- gration of entry that are to take immediate effect and deci- sions or judgments issued by a court of law on deportation shall be enforced without delay. In cases other than those referred to in the above paragraph, aliens who have been refused entry shall leave the country within two weeks and aliens subject to deportation within four weeks of the decision gaining the force of law, unless otherwise determined in the decision. If an alien has not left the country within the prescribed period or it can be assumed with certainty that he does not intend to leave the country voluntarily within this period, the decision is to be enforced as soon as possible by the authority that, pursuant to section 11, is responsible for enforcement. According to Section 6 of the Administrative Procedure Act (1986:223), which is headed Collaboration between authorities, every authority is to provide other authorities with assistance within the framework of its own operations. Section 7.2 of the Ordinance (1995:1322), which is applicable for , stipulates that the head of the authority is to promote collaboration between the board and other authorities and adopt other methods that will benefit the state as a whole. Section 15.5 of the Secrecy Act (1980:100) lays down that an authority is, when requested by another, to provide information it possesses insofar as this is not prohibited by provisions relating to secrecy or by consideration of the requirements of its own routines. As the central government authority for migration and citizenship issues, bears ultimate responsibility for the return, for instance, of aliens that do not have permits to stay in . In this connection, for instance, must pay particular attention to monitoring how effectively authorities deal with issues relating to the legislation on ali- ens and citizenship (Section 2.5 of the Instructions laid down for the Migra- tion Board, 1988:429). The government enquiry into review of the regulations and practices rela- ting to the enforcement of deportation and expulsion orders has, in its report SOU 2003:25 Enforcement when identification is unclear etc., proposed amendments to the provisions that apply to the authorities responsible for and involved in enforcing these decisions. This report is currently being studied by the Ministry for Foreign Affairs. 2 004 /0 5:JO1 B I L A G A 10 As has been made clear above, since January 1, 1999, there has been a system in which is responsible for the enforcement of the majo- rity of decisions while the authorities have assumed this responsibility in cases, for instance, which has referred to them. The case examined here, however, was being dealt with according to the previous regulations, which laid down that enforcement was the responsibility of the authorities. This notwithstanding, it raises issues relating to coopera- tion between and the authorities where the enfor- cement of decisions is concerned. These issues were already recognised in connection with the enactment of the statutes in 1988 in which the responsibi- lity for the enforcement of decisions was transferred to some extent from the to what was then ; fears were express- sed that ascribing a twofold role to the authority would reduce confidence in the decisions it reached. It was considered that placing the decision making and executive function in the same hands was a deviation from the principle that a distinction should be maintained between the agencies responsible for decisions and for enforcement. Cooperation between authorities is also discussed in the report referred to above SOU 2003:25 (Section 4.6.4). The directives relating to cooperation have been drawn up in consultation by and and were published by in Circular GDM no. 8/01 and also in a later issue, , GDM no. 14/03 under the heading Division of responsibilities between and authori- ties in the enforcement of deportation and expulsion orders. Circular GDM 14/03 contains, for instance, the following. When an order has been referred to the for enforcement, the Swe- dish is responsible for the continuous provision of in- formation likely to be significant for the enforcement to the autho- rity. In assuming responsibility for the enforcement of the order, the poli- ce authority must, in essence, be considered to have asked for this infor- mation.