frsrdg · GW04JO1 · 2008-11-17 00:00:00 — Its report began by pointing out that the independence of the judiciary laid down in the constitution sets limits to the powers of ad- ministrators in relationship to the involvement of judges in individual cases and the ensuing difficulty in striking the proper balance may lead to the risk that heads of courts remain passive (Section A, p. also made the following observation (p. The requirement of judicial independence means that judges must be autono- mous in their judicial functions. This does not mean that they are above or immune to administrative direction. This is an important distinction but at the same time one that it is difficult to define. The assertion of independence may not be extended in ways that make it impossible to administer and manage a court of law. may the head of a court exercise his administrative func- tions without regard to the independence of the individual judges in their adjudications. went on to account for its view of the possible actions open to a head of court to enable intervention in various situations and the limits that applied. When it came to the allocation of tasks and the treatment and deter- mination of cases the committee included the following (p. 269 f.). The assignment of cases involves two important and sensitive elements, one is to lay down in advance explicit allocation principles, the other is to be able to reassign on objective criteria cases that have already been allocated. It is above all in this second area, i.e. reallocation, that impartiality may be jeop- ardised. However there should be a possibility of reallocating cases to cope, for instance, with illness that renders a judge incapable of dealing with a cer- tain case or when the workload of an individual judge becomes unduly se- vere. The heads of courts and other senior judges have an overall responsibility for the timely settlement of cases and matters. This has also been laid down by the Parliamentary Ombudsmen and the Chancellor of in inspection reports. It is important for a court to have effective routines for monitoring cases that are being dealt with. The head of a court and other senior judges are required to keep abreast of the current state of affairs and initiate their own inquiries, if satisfactory explanations are not forthcoming about outstanding cases that have not been determined. The head of a court also bears the re- sponsibility for ensuring that the court is organised so that resources are used in the most effective . This may mean that cases have to be reassigned or that no new cases should be assigned to any one judge for a specific period. 2 008 /0 9:JO1 B I L A G A 10 In the opinion of the committee a head of court is not only empowered to act and intervene in this way but is also, in certain circumstances, required to. The head of a court who has an objectively acceptable reason should there- fore also have the possibility of reallocating a case even against a judges will. This is, however, a delicate question and the head of the court should have very good grounds for a decision of this kind, which should, of course, come after even-handed, frank discussion with the judge concerned about ways of dealing with the problem. Situations naturally arise where an initial allocation of cases and matters at random can no longer be upheld. This applies, for instance, when judges fall ill and are unable to work for some considerable period. It may then be neces- sary for a chief judge to entrust the cases for which they were responsible to others so that they may be dealt with and determined. I consider for my part that the situation referred to above does not in prin- ciple differ from others where the action taken in a case or a matter fails, for some reason other than the absence of the judge, to lead towards determina- tion within a reasonable period of time, and that here too the head of a court is not only empowered to intervene but is also required to do so. In situations of this kind a chief judge must be able to decide that the case or matter will thereafter be dealt with by another judge. This kind of intervention cannot, if it is based on objective reasons, be considered to contravene the principle of the independence of judges nor the need to ensure the impartiality of the court. The requirement that courts of law should be independent and impartial is intended to benefit the individual citizens whose cases are brought before them. The purpose is to ensure that cases are heard in accordance with the applicable law, without any influence from other interested parties of any kind whatsoever. An administrative decision to allocate a case which is solely motivated by the to ensure completion of a case brought by an individ- ual before a court of law does not mean that the judge entrusted with the case is no longer independent and autonomous in his appraisal of the legal issues and the evidence submitted. should any such decision give rise to doubts about the impartiality of a court. On the contrary, decisions of this kind may be required to enable satisfaction of the justifiable interest of individuals in having their cases tried independently and impartially as well as within a reasonable period of time, as it is comprehensively stated in article 6 of the ECHR. In the light of this reasoning, it should be possible to intervene in the way discussed here even against the wishes of an individual judge. It goes without saying, however, as pointed out by of the Head of a Court and the Appointment of , that this should be preceded by even-handed and frank discussion of how to resolve the situation that has arisen. In connection with the discussion above I would now like to refer to the fact that the regulations governing the assignment and reassignment of cases and matters at district courts are laid down in the Directives for the District Courts, i.e. they have been issued by decree. B I L A G A 10 20 08 /09 :JO1 Section 8 of the Directives for District Courts lays down that the principles on which tasks are assigned are to be made clear in their administrative direc- tives. Section 9 of the directives makes it clear, for instance, that cases and matters are to be allocated by ballot and that certain exceptions may be made from this requirement. These exceptions comprise, for instance, cases or mat- ters of specific kinds, from a specific area within the courts jurisdiction or those that may have mutual connections. Section 14 stipulates that a chief judge may, if there are special grounds for doing so, decide on temporary modifications of what has been decided by virtue of section 8. As laid down in section 8, the issues gen- eral guidelines on the formulation of administrative directives and has pro- posed that in this respect they should be drawn up as follows. The Chief Judge is to keep abreast of the workloads of the different units in the district court, for instance by appraising their backlogs at least twice each year. If required, he is to reallocate cases and matters between the different units or take any other necessary measures (DvFS 1987:6, reprinted in DvFS 1987:22). It is my confirmed opinion that the regulations on ballots and the possible exceptions from random allocation should, in view of their central importance for faith in the impartiality of the courts, be based on statutory provisions. I note that in 1993 the Inquiry into the Appointment and Role of Judges had already come to the opinion, endorsed by and the Appointment of , that the principles for assignment and reassignment should be laid down by statute (SOU 1994:99, section A, p. 299 and also SOU 2000:99, section A, p. The second of these two reports also contains discussion of the issue of whether it should be possible to appeal against administrative decisions al- leged by judges to infringe on their judicial independence. proposed the introduction of such a possibility (SOU 2000:99, p. 283 f.). At the moment there is no possibility of appealing against such a decision (cf. Section 59 of the Directives for District Courts). I too consider it should be possible to appeal against a decision to withdraw a case from a judge against his or her will so that the objectivity of the grounds can be appraised. The measures adopted by the Chief Judge to deal with the backlog of cases at District Court The administrative directives of District Court state the princi- ples on which cases and matters submitted to the court should be assigned to its different units. These directives also lay down that the Chief Judge should, as part of the process of acquiring information about workloads and backlogs, take any measures required by current workloads. This provision seems therefore to assume that the Chief Judge has relatively far-reaching powers in this respect. In my opinion it should be possible in the administrative direc- tives to state more explicitly when the Chief Judge may disregard the alloca- tion principles that apply and what measures may be adopted when required by the workload (cf. sections 8 and 14 of the Directives for District Courts). 2 008 /0 9:JO1 B I L A G A 10 is clear, however, that according to the administrative directives the Chief Judge does not lack any official possibility of reallocating cases or matters when necessary. Per has stated that on two occasions, probably during the spring of 2005 and in , he has made it possible for a judge to deter- mine some outstanding cases. He did so by taking over himself the manage- ment of other cases at the unit in question for a few weeks. Otherwise the measures he adopted were of a general nature to cope with the increasingly severe and onerous workloads resulting from a rise in the number of cases and limited resources. One of these measures was to concentrate all criminal cases submitted to the court offices in to one unit, for which he as- sumed responsibility himself. In a previous inquiry, cited above with reg. 5038-2005 and 1679- 2006, Per stated among other things that on a number of occasions he pointed out to judges that cases must be determined and that it was unac- ceptable for them to remain outstanding, each time receiving an that the cases would be decided. He has also asserted that the workload situa- tion was the only explanation he was offered for the delay and that he did not consider this to be an acceptable reason. The head of a court who does not receive an acceptable explanation for the failure to settle outstanding cases or matters is, as has been made clear, re- quired to take measures, for instance by offering a judge some reduction of the workload either by restricting the assignment of new cases or enabling the reassignment of cases to other judges. In a situation like this the head of a court may even reassign a case or matter without the consent of the judge responsible. Here I would like to stress, however, that it has not been claimed that any of the judges at the District Court would have objected to the reallocation of cases or matters to other judges if the possibility had been raised. It is obviously true, as Per has pointed out, that it can be difficult for more practical reasons to offer relief through reallocation or in any other way at a hard-pressed district court where every judge has a severe workload. In my opinion it is precisely in situations of this kind that the head of a court bears a special responsibility for ensuring that the necessary priorities are established. Where the disputes that were the subject of Parliamentary Om- budsmens inquiries 5038-2005 and 1679-2006 were concerned, Per Kjells- son should not have relied for as long as he did on repeated that the cases would be resolved but should instead have adopted other measures. He should, of course, also have sought the kind of information that would have enabled him to take the appropriate measures to deal with many of the other cases and matters on which I have expressed criticism in other com- plaints and during the inspection. I would now like to turn to the measure taken by Per of taking responsibility himself for all criminal cases submitted to the court offices in until dates had been set for their hearings. The first paragraph of section 15 of the Directives for District Courts lays down, as has already been pointed out, that there should be a judge to take B I L A G A 10 20 08 /09 :JO1 responsible for every case or matter at any point in time. Compliance with this provision is important not only to enable judges to be called to account for the legal and disciplinary liability to which even they are subject but also so that the judge responsible can make the decisions that may not, pursuant to sections 16 & 18 of the Directives, be delegated to other employees and to ensure that measures are taken to hasten the case or matter towards resolution. If this responsibility is to be exercised effectively no unit may, of course, be so extensive that the judge has no real possibility of devoting the attention required to each case or matter. It is not clear from Per response how large a backlog of cases there was or still is at the units in question. The statistics submitted in connec- tion with the case brought by the Parliamentary Ombudsmens (reg. 1674- 2006) reveal, however, that after all the criminal proceedings had been con- centrated to the unit, at times this backlog exceeded seven hundred cases. It is not, in my opinion, compatible with the provisions of the Directives for District Courts for one individual judge to have the ultimate responsibility for such a large a number of cases as there seem to have been here. This would in practice eliminate the possibility of discharging the responsibilities laid down in the directives. In addition cases and matters that are the respon- sibility of a chief judge cannot be subject to the supervision that according the opinions presented in this adjudication, he or she is required to exercise. It would therefore seem that for this reason as well it is inappropriate for the head of a court to take such extensive responsibility for the treatment of cases before the court. To sum up, I have been able to establish that Per merits criticism for his inadequate and for a time non-existent supervision of outstanding cases and matters submitted to the court. As a result there were grave failures to set priorities for a long period of time without any measures being taken to remedy them. Even if his action in transferring all the criminal cases submitted to the court offices in to a unit for which he himself assumed responsibility was the result of concern for the other judges, such a measure is not compati- ble with the current regulations. I am therefore critical of this measure as well. In 2007 the government appointed a special commissioner to look into the action required of heads of court to deal with the tardy treatment of cases as well as the possibilities open to them. The commissioners directives state that if he considers it necessary he is to extend the powers of heads of courts to adopt appropriate measures while taking into account the independence of judges in the exercise of their judicial functions (, directive 2007:23). I am submitting a copy of this adjudication to the commissioner. I am also forwarding a copy to the in view of what I have 2 008 /0 9:JO1 B I L A G A 10 said about the need for statutory regulation of the principles for the allocation of cases and matters at courts of law. These statements conclude the case. B I L A G A 10 20 08 /09 :JO1 The issue of the entitlement of an individual to make sound or video recordings etc. during a discussion with officials at a social service agency A student on a qualifying programme for social workers, L.I., submitted a written complaint to the Parliamentary Ombudsmen on 28 2007 con- cerning the social services unit of the urban district council of in the . In the complaint she alleged that information had been posted in the units waiting room saying that clients were not allowed to record conversation or discussions with the officials dealing with their cases. She raised the question of whether there were any legal grounds for the dis- trict councils restriction of the rights of individuals to make this kind of re- cording. The urban district council of was asked to submit a response to the points raised in L.I.s complaint. On the 8 2007 an official response was submitted to the Parliamen- tary Ombudsmen signed by the district councils acting chief executive, . Subsequently the district council submitted the statement adopted at its meeting on 21 2007. The following was the gist of response. In the councils executive management team adopted the fol- lowing policy. For the sake of the working environment and integrity it is not permitted within the offices of the urban district council of to use video or sound media to record its operations or discussions with the staff without the permission of the head of unit responsible in consultation with the operational manager. This decision is made with the consent of the members of staff concerned. The right of employees to divulge information and express their opinions may not of course be infringed. Each member of the staff always has the right to refuse to allow video or sound recordings to be made by a visi- tor/client. The background to this decision can be found in an incident in which a cli- ent filmed the interior of the social service offices, including its waiting room. Several other clients waiting there reacted to this and for obvious reasons did not want to be included in the film. To some extent the executive management team regard this as a question of behaviour. The operational manager is responsible for general conduct in the premises and must then be able to decide if and when sound or video recordings may be made. There are also other clients in the premises and it must be possible to guar- antee protection of their personal integrity and the confidentiality they are entitled to. During discussions between clients and their case officers infor- mation about third parties subject to confidentiality may also be disclosed, for 2 008 /0 9:JO1 B I L A G A 10 instance about members of the clients family, and it must also be possible to safeguard their right to confidentiality. In addition, this is to no small degree a question that affects the working environment and the integrity of the councils staff. Knowing that discussions with clients may be filmed or recorded creates anxiety. The technology now available makes it easy to circulate video or sound recordings to a wide audi- ence. No advanced equipment is needed but a mobile telephone is more than enough. The concern of the executive management team, therefore, was to create a sound working environment for its employees in which they need not fear that discussions in which they are involved would be circulated, either completely or in part or in the form of comments or statements deprived of their context, and in which their personal integrity will be assured. Finally the executive management team would like to point out that there are no provisions prohibiting a policy of the kind it has adopted. The executive management team does not consider that the prohibition is in conflict with any legislation but it has clarified the information in the wait- ing room by including the entire policy. The statement to the Parliamentary Ombudsmen submitted by council con- tained the following. The urban district council of considers that generally citizens should not be forbidden to make sound recordings in the social service unit, if this concerns their own personal meetings in the social offices, except for the waiting room, corridors and other similar public areas. Other visitors and third parties should, of course, be protected. We are giving the chief executive the task of reviewing the policy relating to sound and video recording. Certain members of the council had expressed reservations on the decision to adopt this statement. Instead they moved endorsement of the executive management teams response cited above, but otherwise they expressed no opinions about this response to the Parliamentary Ombudsmen as the council had not been involved in the work of drawing up the policy, had not adopted it and were not otherwise cognizant of the circumstances that had preceded the complaint to the Parliamentary Ombudsmen. The rapporteur telephoned the head of the councils social services, for information. The Parliamentary Ombudsman studied a proposed guidelines on sound and video recording at SDF which were reported to have been dis- cussed at a meeting of the district council on 17 2008. In her adjudication of 30 2008 the Parliamentary Ombudsman, . , included the following. In the urban district councils executive management team adopted a policy on sound and video recordings in the councils offices. Its contents can be summarised as prohibiting individuals from using sound or video media to record what went on there or their discussions with the staff without the permission of the head of the unit responsible in consultation with the operational manager and that these decisions were to be made with the consent of the member of the staff concerned. B I L A G A 10 20 08 /09 :JO1 Information was posted in the waiting room of the social services unit. This poster could be understood to mean that clients were in general forbid- den to record discussions with their case officers. It has not been made clear in my inquiry, however, how the information was worded, i.e. whether it expressed the policy in its entirety and that permission to make sound re- cordings could, for instance, be granted in certain cases or whether there was a blanket prohibition. In connection with the response to the Parliamentary Ombudsmen a new poster was put up which gave information about the pol- icy in its entirety. In view of this background, in what follows I have opted to express purely general opinions, even though they are based on how the pol- icy in question was worded. The decision of the executive management team to introduce this policy was the outcome of an occurrence in which an individual had filmed the social units offices, including its waiting room. The waiting room of social service unit is not a public place. The executive management team is therefore entitled to decide to a considerable extent the terms on which individuals are to have access to and remain in the waiting room. There are no statutory provisions that entitle the public to film, take photographs or make sound recordings in the waiting room. I cannot therefore see that any objections can be raised to the of the executive manage- ment team to safeguard the integrity of individuals by limiting the possibili- ties of filming, for instance, in sections of its premises open to the public. When the issue of making sound recordings of discussions between indi- viduals and the councils staff is concerned, there are no statutory provisions either that entitle the individual to make recordings of this kind. On the other hand there are no legal grounds enabling an agency to issue a blanket prohibi- tion against individuals recording such discussions. In most cases it can be assumed that the individual has a legitimate reason for wanting a record of this kind of discussion. In my opinion, therefore, here the premise should be that such recordings are to be permitted. In certain situations it may, however, be justifiable to forbid an individual from recording a discussion with an official. One of these is when the discus- sion involves sensitive confidential information about someone who is not present (see the Parliamentary Ombudsmans adjudication of , reg.