frsrdg · GT04JO1 · 2005-12-01 00:00:00 — en polismyndighets åtgärd att genomföra en husrannsakan för att säkerställa en hämtning enligt utlänningslagen 05/06:163 fråga om Ombudsmannen mot etnisk diskriminering (DO) haft rätt att begära in uppgifter med stöd av 24 § lagen (1999:130) om åtgärder mot diskriminering i arbetslivet på grund av etnisk tillhörighet, religion eller annan trosuppfattning under tid som det pågår en tvist i domstol där DO för en enskild arbetssökandes talan 05/06:154 initiativärende mot en länsstyrelse angående handläggningen av ärenden rörande utredning av medicinska krav för fortsatt körkortsinnehav 05/06:407 initiativärende mot angående verkets samarbete med polisen i ett ärende om verkställighet av ett avvisningsbeslut 04/05:179 en granskning av Säkerhetspolisens verkställighet av ett regeringsbeslut om avvisning av två egyptiska medborgare 05/06:101 kritik mot en kommunstyrelse för underlåtenhet att genomföra en detaljplan och att följa tillsynsmyndighets rekommendationer 05/06:411 kritik mot en skolförvaltning för handläggningen av ett vitesärende 04/05:368 en tingsrätts beslut att hålla förhör med två barn vid en muntlig förberedelse i ett vårdnadsmål m.m. 05/06:27 fråga om Ombudsmannen mot etnisk diskriminering (DO) haft rätt att begära in uppgifter med stöd av 24 § lagen (1999:130) om åtgärder mot diskriminering i arbetslivet på grund av etnisk tillhörighet, religion eller annan trosuppfattning under tid som det pågår en tvist i domstol där DO för en arbetssökandes talan 05/06:154 fråga om en polismyndighets agerande har inneburit att en polisinspektörs yttrandefrihet har begränsats 04/05:73 fråga om inskränkning av offentliganställdas yttrande- och meddelarfrihet 04/05:398 kritik mot en kommun som ingripit mot och kritiserat en tjänsteman som använt sig av sin grundlagsskyddade yttrandefrihet 05/06:453 fråga om protokollering av beslagtaget gods samt behörighet att fastställa beslaget när åklagare är förundersökningsledare 04/05:70 en polismyndighets och åklagares långsamma handläggning av en förundersökning gällande bedrägeri samt en vice överåklagares överprövning när polisens akt förkommit 04/05:85 kritik mot polis och åklagare för långsam handläggning av en förundersökning om våldtäkt där målsäganden var samt mot åklagare för dröjsmål med att vidarebefordra en framställan om målsägandebiträde till rätten 04/05:90 remiss av betänkandet (SOU 2003:41) Förstärkt granskning av polis och åklagare 04/05:107 en åklagares skyldighet att ta reda på om en målsägande gör anspråk på beslagtaget gods 05/06:80 en åklagares långsamma handläggning av en förundersökning samt chefsåklagarens ansvar för handläggningen 05/06:89 långsam handläggning av en förundersökning där målsäganden inte har fyllt 05/06:95 ett åtal mot en f.d. polismästare för polisinsaterna vid Hvitfeldtska gymnasiet i har ogillats tillämpning av 23 § polislagen (1984:387) m.m. 05/06:60 en byggnadsnämnds handläggning av ett återförvisat bygglovsärende 04/05:371 vissa uttalanden rörande registratorskontors öppethållandet under s.k. klämdag. Fråga om registratorsfunktionens fördelning på de inom ett landsting ingående sjukhusen 05/06:443 kritik mot av en ansökan om god man. Uttalanden om överförmyndarnämnds skyldighet att registrera allmänna handlingar 05/06:422 kritik mot överförmyndare för brister i tillsynen över ett godmanskap 05/06:425 kritik mot av ett överklagande 05/06:428 att en myndighet på grund av annat än rättidsprövning här besluts överklagbarhet avvisar överklaganden av egna beslut strider både mot ordalydelsen i förvaltningslagen och uttalanden i förarbetena med förklaring till fördelningen av uppgifter mellan lägre och högre instans; frågor även om skyldigheten att lämna anvisningar för överklagande och om en skrivelses egenskap av överklagande, inte begäran om omprövning 04/05:373 kritik mot en socialnämnd som dels inte motiverat ett beslut, dels meddelat en felaktig fullföljdshänvisning; vidare kritik mot en länsrätt för handläggningen av ett överklagande som inte skulle prövas av domstolen utan av 04/05:160 en kvinna, född , hade beviljats bistånd enligt socialtjänstlagen i form av ett särskilt boende. Fråga om socialnämnden varit skyldig att fatta ett beslut som kvinnan har kunnat överklaga när nämnden bestämde att kvinnan skulle flytta till ett annat särskilt boende 05/06:182 fråga om lagligheten av Radiotjänst i Kiruna AB:s handläggning av ett överklagande av ett beslut om TV-avgift 05/06:405 ett kommunalt bolag har uppdragit åt en advokat att handlägga framställningar om handlingsutlämnande; fråga om de uppgifter som överlämnats till advokaten innefattar myndighetsutövning 04/05:428 kritik mot för att rådet i ett anställningsärende överlämnat till ett bemanningsföretag att svara för annonsering och urval av de kandidater som kunde komma i fråga för anställning. Fråga om de uppgifter som överlämnats till bemanningsföretaget innefattar myndighetsutövning 05/06:376 initiativärende mot en nämnd rörande ett uppdrag som stadsarkitekt. Bland annat fråga om uppdraget varit förenligt med föreskrifterna om överlämnande av förvaltningsuppgift 05/06:416 en polismyndighets och åklagares långsamma handläggning av en förundersökning gällande bedrägeri samt en vice överåklagares överprövning när polisens akt förkommit 04/05:85 The Swedish Parliamentary Ombudsmen Report for the period 1 2004 to 30 2005 1 General information and statistics During the period covered by the report, the following have held office as Parliamentary Ombudsmen: Mr. (Chief Parliamentary Ombudsman), Ms. (1 July31 ) and Ms. (1 January30 2005). The Deputy Ombudsmen Mr. have handled and decided cases of supervision during a number of shorter periods. has supervised the courts of law, the public prosecution service and the , while Ms. have dealt with matters concerning the prisons, the armed forces, taxation, customs, the execution of judgements, social insurance and chief guardians. has supervised the fields of social welfare, public health and care and education. , finally, has been responsible for the supervision of the administrative courts, and construction, immigration, administration of foreign affairs, environmental protection, farming and protection of animals, labour market and all additional aspects of civil administration, not supervised by any other Parliamentary Ombudsman. During the year, 5 595 new cases were registered with the Ombudsmen; 5433 of them were complaint cases (an increase by 460 compared to the number during the previous year) and 52 were cases initiated by the Ombudsmen themselves on the basis of observations made during inspections, of newspaper reports or on other grounds. 110 cases concerned new legislation, where the Parliamentary ombudsmen were given opportunity to express their opinion on i.a. 5 755 cases were concluded during the period, an increase by 831; out of them 5 563 were complaint cases, whereas 78 were cases initiated by the Ombudsmen themselves and 114 were cases concerning new legislation. It should be noted that the schedules overleaf show cases concluded during the period, not all cases lodged. This summary also comprises the full reports of some of the cases dealt with by the Ombudsmen during the period. Schedule of cases initiated by the Ombudsmen and concluded during the period 1 200430 2005 Closed without final critisism Admonitions or other critisism Prosecution or initiative to disciplinary procedure Access to public documents Schedule of complaint cases concluded during the period 1 200430 2005 Referred to other agencies or state organs No critisism after in-vestiga-tion Admonitions or other critisism Prosecutions or disciplinary pro-ceedings Guidelines for good administration Prelimi-nary cri-minal invest. Agriculture, environment, protection of animals Other cases at county administrative boards, control of lotteries e.a. Employment of civil servants etc. Access to official documents; freedom of expression Administration of parliamentary and foreign affairs; general elections Complaints outside jurisdiction, complaints of obscure meaning 2 Reports of four individual cases 2.1 A review of the enforcement by the Security of a Government decision to expel two Egyptian citizens In an adjudication of 22, 2005, the Chief Parliamentary Ombudsman, . , made the following observations. Summary of the ombudsmans criticism My review of the enforcement by the Security of the Governments decision to expel two Egyptian citizens, A. and E.Z., on , 2001, reveals serious shortcomings in the way in which this case was handled by the Security . I have therefore found reason to express extremely grave criticism of the Security . This criticism can be summarized as follows. Relinquishment of official authority At airport the Security already failed to maintain control of the enforcement, thereby allowing American officials free hands to exercise public authority on Swedish territory. Relinquishing Swedish public authority in this way to foreign officials is not compatible with Swedish law. The enforcement was carried out in an inhuman and therefore unacceptable . The way in which A. and E.Z. were treated is alien to Swedish procedures and cannot be tolerated. The treatment to which the two men were subjected was in some respects unlawful and must be characterized overall as degrading. Questions may also be raised as to whether the way in which the enforcement was carried out constituted a breach of Article 3 of Convention. should have intervened to prevent this inhuman treatment. The way in which the Security dealt with this case was characterized throughout by passivity from the acceptance of the offer of the use of an American aircraft until completion of the enforcement. One example that can be mentioned is the failure of the Security to ask for information about what the security check demanded by the Americans would involve. None of the officers present at airport had been assigned command of the operation. The officers from the Security who were there had relatively subordinate ranks. None of them considered that they bore the ultimate responsibility for the enforcement. They also acted with remarkable deference to the American officials. 2 Background and inquiry During the spring of 2001, the () launched a case involving two Egyptian citizens, A. and E.Z. then investigated and maintained surveillance of the two men for about six months. At the same time were dealing with applications for asylum from A. and E.Z. However, came to the opinion that in view of the nature of the case the final decision rested with the Government. The case was therefore referred to the Government offices during the autumn of 2001 for continued consideration. On , 2001, the Government decided to reject the applications submitted by A. and E.Z. for and labour permits and that the two men were to be expelled. In addition, it was decided that the expulsion order should be enforced without delay by the Security and that their destination was to be . In the decision it was stated that A. and E.Z. had occupied leading positions in an organization that was guilty of terrorist acts and that they could be held responsible for the actions of the organization in question. On the same day, A. and E.Z. were detained and taken to airport to await transport to in an American aircraft. Apart from Swedish and Egyptian officials, the plane was also carrying American security personnel. Before the plane took off, the American officials undertook a security check of A. and E.Z. inside the station at the airport. This inspection involved various forms of force and coercive measures. After the expulsion had been described in a programme called Kalla Fakta on the Swedish television channel TV4, on 25, 2004, to launch an inquiry on my own initiative. 2.2 The Parliamentary Ombudsmans inquiry and the public prosecutors appraisal of the case etc. 2.2.1 The extent of the Parliamentary Ombudsmans inquiry The Act with Instructions for the Parliamentary Ombudsmen (1986:765) contains provisions on the extent and the limits of the supervisory powers exercised by the Parliamentary Ombudsmen. These state, for instance, that public agencies, their officials and others employed by these agencies are subject to the supervision of the Parliamentary Ombudsmen, while this does not apply to the Government or Ministers. It can also be added that the Parliamentary Ombudsmens supervisory powers only apply to Swedish public authorities. In this case I have examined how the Security enforced the expulsion order made by the Government. My inquiry has therefore focused on establishing what occurred at airport and the in which the expulsion of the two Egyptians was carried out. Central issues in my inquiry concerned the actions of the Security in connection with the use of public authority by foreign officials on Swedish territory and the use of force and coercive measures. The surveillance and investigation carried out by the Security in the months prior to the expulsion will not, however, be dealt with in any further detail. In view of the restrictions that apply to the Parliamentary Ombudsmens supervisory powers, my review does not therefore include the Governments expulsion order, nor on what its decision was based. Consequently, no opinion is expressed on the suspicions about A. and E.Z. On the same grounds, it does not concern the question of whether enforcement of the expulsion was possible in view of the provisions of Section 1 of Chapter 8 of the Aliens Act (1989:529) and commitments according to international conventions, nor, therefore, does it include the issue of the value of any made by . Furthermore, my review does not include the measures adopted by the Government to monitor the commitments made in the , nor statements made by the Government to international inspection bodies. The way in which the Government dealt with the expulsion of A. and E.Z. is subject to a review by . 2.2.2 The Public Prosecutors appraisal of the case The events in question were reported by an individual to the and the for consideration of whether any crime had been committed in connection with the enforcement by the Security of the Governments expulsion order. On 18, 2004, K.E., Assistant , decided not to institute a preliminary inquiry as there were no grounds for suspecting that any offence subject to criminal prosecution had been committed by a representative of the Swedish force (reg. In this decision a note was made that the question of whether any case arose from the actions of foreign citizens during the enforcement on board the aircraft had been referred to the Director of the in . In the exercise of her supervisory powers, A.B., at that time Acting Director of the , then conducted a review of the decision made by K.E. In her decision of 3, 2004, she found that in view of the stringent safety and security requirements in particular during the period in question the measures invoked could not be considered to constitute a breach of the general principles applying to the actions of the . She noted specifically in her decision that it concerned the measures adopted by foreign personnel as they were not operating independently at the time. In addition, A.B. made the assessment that there were no grounds for assuming that any offence subject to public prosecution had been committed by the captain of the foreign aircraft (reg. no.100 2004/0653). 2.3 Conduct of the inquiry To begin with, documentation relating to the case was requested from the Security and the Government offices (the Ministry for Foreign Affairs and the ). Then information was acquired verbally from Deputy Commissioner M.L., Chief Superintendent , five other senior officers at the Security , Inspector P.F. of the County Authoritys Border Control Unit at Airport and from K.J., E.Z.s legal counsel. In addition P.F. showed the Parliamentary Ombudsman the premises used by the at airport. were then asked to submit written answers to certain specific questions. The response of the Security was supplemented by a written statement from M.L. and A.A. and two other officers. Finally a number of additional documents were requested from the Security . 2.4 The result of the inquiry In the course of the Parliamentary Ombudsmans review relatively extensive information has come to light. In what follows a chronological account will be given of the way in which the case was dealt with and the main circumstances considered significant for the issues pertinent to my adjudication. In 2001, the Security initiated surveillance and investigation procedures concerning A. and E.Z. A. was then living in and E.Z. A.A. had overall responsibility for the handling of the case. At this time, applications for asylum from A. and E.Z. were being considered by . In 2001, the Security presented certain aspects of their case to representatives of and at the end of October 2001 the Security lodged objections to A. and E.Z.s applications for asylum. At the beginning of , as laid down by Section 11 of Chapter 7 of the Aliens Act, referred the case to the Government. In the same month, the Security reported on the case to officials at at the Ministry for Foreign Affairs. In , the Security came to the conclusion that expulsion could be required in this case. Planning began for the enforcement of an expulsion order, for instance of how arrests could be made in and and how the subsequent transport to could be arranged. Initially it was stated that no Government decision could be expected before January 2002. According to information on file at the Security , it was then intended that the Government would reach its decision on , 2001, so that the journey was therefore planned to take place on . On 5, the Ministry for Foreign Affairs then announced that no decision could be expected before . The Ministry for Foreign Affairs and the Security seem, therefore, to have continued to discuss when, for instance, the Government could reach a decision in this case. On , 2001, there is a journal entry in the Security case file: Inf. Foreign Ministry decision Tuesday! ) and booked Wed. ) and also place booked [] Tues-Wed. had contacted the transport service of the National Prison and to request assistance in arranging air transport for A. and E.Z. Transport was chartered and departure scheduled for the morning of , 2001. According to the Security it was difficult to arrange slots to fly over Europe before that time. A.A. has stated that at some stage before , 2001, he was informed that the Government intended to deal with the case on , 2001, which meant that the expulsion could not take place immediately after the decision had been made. Some time before the expulsion decision was made, however, the Security received an offer from the () of the use of a plane that was said to have what was referred to as direct access so that it could fly over Europe without having to touch down. Enforcement could then take place immediately after the Government made its decision on , 2001. A.A. has said that the Americans attached no conditions to the use of this aircraft by the Security . He did in fact assume as the aircraft was American that some American personnel would be on board but also that officers from the Security would be able to accompany the flight. According to A.A., however, it was purely a transport service that the Americans were offering and no mention was made of any specific category of American personnel being on the plane. 2.4.2 Security presentation of the case to the Foreign Minister on , 2001 On Monday , 2001, the Security presented the case to A.L., then Foreign Minister. officers present were A.A. and X, the case officer. A number of officials from the Ministry for Foreign Affairs were present, among them G.-B.A., State Secretary, S.-O.P., Director General, and staff from . After a presentation by the staff from , X presented the case from the perspective of the Security . He has stated that the Foreign Minister seemed satisfied with the presentation and with the grounds offered by the Security for rejection of the applications for asylum. Representatives of the Security have provided the Parliamentary Ombudsman with the following information on discussions about enforcement. A.A. presented the two alternative transport possibilities available: the aircraft booked for , 2001 and the American offer. As there were security reasons for arranging the expulsion immediately after the Government had made its decision, the alternative of using the plane booked for December 19th was not considered satisfactory: there were demands that enforcement should take place without delay. According to A.A., great weight was probably given to the security considerations by both the Government offices and the Security during the presentation. He felt that there was some concern in the Government offices about this case. During the presentation, A.A. reported that if the American offer were accepted, enforcement could already take place during the evening of , 2001. According to A.A. the Foreign Minister then withdrew with her most senior officials to discuss the issue, before assenting to acceptance of the American offer by saying well do it that way. Even though A.A. was aware that neither the Government nor a Minister could make decisions concerning the exercise of the powers of a public agency, he construed the statement as a direct signal. Officer has also testified that the Foreign Minister was positive to the American offer. According to officer , the Foreign Minister asked whether any members of her staff had a different opinion and, this not being the case, then said Thats what well do, we take the American offer or something similar. has stated that she was informed that both transport alternatives had been mentioned during the presentation. has stated that the officials at the Ministry for Foreign Affairs told him that during the presentation there was some concern that either against Torture or Court of Human Rights would have time to issue a staying order before enforcement could take place. There is also information in this case that there were fears that an attempt would be made to free A. and E.Z. In the Security file one of the journal entries for , 2001 reads Presentation Ministry for Foreign Affairs/A.L. wants enforcement Tuesday evening Yes to ordering plane through . A memorandum drawn up by the Security on February 7, 2002 contains the note: After some consultation with the staff of the Ministry for Foreign Affairs the Foreign Minister then gave approval of the acceptance by /RPS of the help offered by the for the transport of A. and E.Z. In a memorandum dated February 12, 2002, J.D., then Head of the Security writes: Representatives of the Ministry for Foreign Affairs were aware of who was to undertake the transport. In /2004 the Ministry for Foreign Affairs carried out its own internal analysis of what was said about this issue during the presentation. This involved asking a number of officials at the ministry to account for their memory of the meeting and some of the findings were as follows. One individual was extremely uncertain about whether enforcement was discussed but was of the opinion that if so, the aircraft was more probably Egyptian. His recollection was furthermore that he was surprised when he found out that an American plane was involved. Some had no recollection whatsoever of discussion of enforcement apart from that it was to be undertaken rapidly and by the Security . Some individuals remembered that there had been discussion of logistical problems in the airspace between and . According to one official, the Americans were to provide assistance in this respect, while another stated that the Security needed help, probably from our colleagues in the West.