frsrdg · GW04JO1 · 2008-11-17 00:00:00 — -ett kommunalt bolag har uppdragit åt en advokat att handlägga framställ- ningar 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 kandi- dater 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 stadsar- kitekt. Bland annat fråga om uppdraget varit förenligt med föreskrifterna om överlämnande av förvaltningsuppgift 05/06:416 -initiativärende mot en nämnd angående ordningen för prövning av frågor om undantag från kommunens föreskrifter om avfallshantering 06/07:371 -En kommun har uppdragit åt en advokat att föra kommunens talan vid ärendehandläggning hos kommunen. Fråga om uppdraget varit rättsenligt, bl.a. huruvida det varit förenligt med föreskrifterna om överlämnande av förvaltningsuppgifter som innefattar myndighetsutövning 07/08:530 -kritik mot ett kommunalt bolag som överlämnat till en advokat att utföra arbetsuppgifter som ingått i handläggningen av ett ärende om handlingsut- lämnande 08/09:550 -en polismyndighets och åklagares långsamma handläggning av en förun- dersökning gällande bedrägeri samt en vice överåklagares överprövning när polisens akt förkommit 04/05:85 -uttalanden om en polismans åtgärder i samband med en begäran om över- prövning av ett tvångsmedelsbeslut m.m. 08/09:130 2 008 /0 9:JO1 The Swedish Parliamentary Ombudsmen Report for the period 1 2007 to 30 2008 1 General information and statistics retired on , 2007. In , Parliament elected Mr. to be Parliamentary Ombudsman for a period of four years as from February 18, 2008. During the period covered by the report, the following have held office as Parliamentary Ombudsmen: Mr. (Chief Parliamentary Ombuds- man), Ms. (1December 31 2007), Ms. (February 18 30 2008). The Deputy Ombudsmen Mr. Hans Rag- nemalm have handled and decided cases of supervision during a number of shorter periods. has supervised the courts of law, the public prosecution services the and, since January 1, 2008, the customs service, while Ms. Nor- denfelt has dealt with matters concerning the prisons and institutions of deten- tion, the armed forces, social insurance, chief guardians and, until , 2007, taxation, customs and enforcement. has supervised the fields of social welfare, public health and care and education and, since January 1, 2008, the administrative courts (except the immigration courts). Axberger, finally, have been responsible for the supervision of, and construction, immigration, administration of foreign affairs, environmental protection, farming and protection of animals, labour market, until the administrative courts and, since January 1, 2008, taxation and enforcement. Within their area of responsibility have also been all additional aspects of civil administration, not supervised by any other Parliamentary Ombudsman. During the working year, 6 550 new cases were registered with the Om- budsmen; 6 356 of them were complaint cases (an increase by 826 compared to the number during the previous working year) and 73 were cases initiated by the Ombudsmen themselves on the basis of observations made during inspections, of newspaper reports or on other grounds. 121 cases con- cerned new legislation, where the Parliamentary ombudsmen were given opportunity to express their opinion on inter alia bills. 6 313 cases were concluded during the period, an increase by 580 ; out of them 6 112 were complaint cases, whereas 84 were cases initiated by the Ombudsmen themselves and 117 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 two of the cases dealt with by the Ombudsmen during the period. B I L A G A 10 20 08 /09 :JO1 Schedule of cases initiated by the Ombudsmen and concluded during the period 1 2007 30 2008 Access to public docments 2 008 /0 9:JO1 B I L A G A 10 Schedule of complaint cases concluded during the period 1 200730 2008 ment, protection of Other cases at county control of lotteries e.a. documents; freedom of foreign affairs; general B I L A G A 10 20 08 /09 :JO1 2 Reports of two individual cases The responsibility of a Chief Judge for shortcomings in the operations of a district court etc. In his adjudication of 24 January 2008 the Chief Parliamentary Ombudsman, . , made the following observations. During an inspection of the District Court of in February 2006 I was able to observe that the time taken to deal with several cases and matters submitted to the court was unduly long. For instance the settlement of 13 disputes had taken between three and a half and six and a half years and there were 19 cases that had taken between 18 months and more than three years. In five criminal prosecutions no attempt had been made to finalise the date of the main hearing in over a year. In addition the small claims unit had a num- ber of cases that were about three years old and in which no action had been taken for long periods. In my record of the inspection (Parliamentary Om- budsman reg. 776-2006) I expressed criticism of the way in which these cases had been handled. details about the observations made in connection with the time taken to deal with certain cases and matters can be found in the record, which is available on the Parliamentary Ombudsmens web-site . In addition to this, during the inspection I made observations relating to eight civil cases, two prosecutions and six other issues that prompted me to subject their treatment to closer examination (see under the heading Observations in certain other cases and matters etc. in the record of the inspection). I also decided to conduct a special inquiry into the extent to which a chief judge could be held accountable for the shortcomings that had come to light. It is this question that is the subject of my adjudication here. Proceedings in the cases initiated by the Parliamentary Ombudsman arising from observations made during the inspection etc. In three of the special cases raised after the inspection to launch preliminary inquiries on the grounds of suspected misuse of office, mainly because of the failure to take any action in cases or matters for a long period of time. Charges were later brought against one of the judges for failure to act in a number of cases and matters (Parliamentary Ombudsman reg. 1674- 2006). On the of Appeal found the judge guilty of misuse of office. This judgement has now gained the force of law. After a certain measures had been taken in the other inquiries, they were terminated. I have, however, expressed grave criticism of two judges for shortcomings in the way these cases and matters were dealt with. 2 008 /0 9:JO1 B I L A G A 10 One of these two decisions (Parliamentary Ombudsman reg. 1676- 2006) concerned among other things the time taken to deal with two criminal cases. During the inspection in February 2006 it appeared that no attempts had been made to issue summonses to a main hearing even though the charges had been lodged in 2003. It transpired that attempts, of which no records had been kept, had taken place to set dates for these cases but I con- sidered that considerably more effort should have been made by the district court to ensure that the hearings were held. It was, in my opinion, totally unacceptable for no summonses to be issued for these hearings for about two and a half years. I went on to criticise the judge for not having discovered that no rulings had been issued in two cases submitted to his unit in 2003 and 2005, so that the complainants had been deprived in practice of their right to a hearing. The other decision (Parliamentary Ombudsman reg. 1675-2006) mainly concerned the handling of two civil cases. In these cases no action had been taken for about three years and three months. to terminate the preliminary inquiry concerning one of these cases because I considered the offence to be a minor one and in the other I did not consider I was able to prove that the judge had in fact been responsible for the case long enough for the lack of action to be felonious. These decisions can be found on the Parliamentary Ombudsmens web- site. In a decision on the fourth of the issues raised after the inspection (Parlia- mentary Ombudsman reg. 5038-2005 and 1679-2006) I expressed very grave criticism of a judge as a result of the complete cessation of any action in three civil cases for a period of between just under six and seven years. This decision can also be found on the Parliamentary Ombudsmens web-site. In addition to the cases initiated by my inspection, I have in response to complaints made by individuals on seven occasions since 2005 had reason to criticize the district court for slow handling of cases. A copy of the administrative directives of the District Court for , valid from , was added to the file. The case was referred to the district court for further information and an opinion on 1.the extent to which the Chief Judge, Per , had been aware of the backlogs of cases and how long they had been outstanding as well as the measures he had adopted to acquire such knowledge 2.what considerations the Chief Judge had made and what measures he had adopted in view of what he knew about the backlogs 3.what considerations had preceded the inclusion of the provision in the district courts administrative directives that the Chief Judge was to be the judge responsible for criminal cases up until determination of the date of their hearings (section 3.1) and to what extent he had considered whether B I L A G A 10 20 08 /09 :JO1 such an arrangement was compatible with the grounds for the provision in section 15 of the Ordinance on Directives for District Courts (1996:381). Per submitted a response. Courts of law are required to decide on the cases and matters submitted to them in a just and efficient . This means, among other things, that cases and matters must be dealt with so that they can be determined without delay. Generally speaking, as laid down in Article 6 of Conven- tion for the Protection of Human Rights and Fundamental Freedoms (ECHR), everyone is entitled in the determination of their civil rights and obligations or of any criminal charge against them to a fair and public hearing within a rea- sonable time. The Swedish Procedural Code and certain other statutes contain specific provisions about the expedition required of the courts and permissible periods of delay. The first paragraph of section 15 of the district courts administrative di- rectives lays down that there must be a judge responsible for each case or matter at any point in time. This means that this judge is primarily responsible for ensuring that the case or matter is dealt with in a way that will lead to a decision that complies with the applicable statutes. The responsibility of the individual judges also comprises, in my opinion, the obligation to inform the head of the court if cases and matters for which they are accountable are not being dealt with in an acceptable way. However, the head of a court is also responsible for ensuring that cases and issues are determined within a reasonable time. The head of a court is respon- sible for its operations and must ensure that these comply with the statutes and are efficient. The head of a court must continually monitor and appraise its operations and the consequences of statutory provisions and specific deci- sions that affect them and also adopt any measures required (sections 6 & 7 of the Ordinance [1995:1322], section 7 of the district courts administrative directives). Since 1 January 2008 the corre- sponding requirement has been expressed as follows: the Chief Judge is re- sponsible for operations and this includes ensuring that they are efficient and comply with current legislation (section 1 of the district courts administrative directives) and is also obliged to undertake internal direction and supervision (section 1a of the district courts administrative directives compared with Section 4 of the Ordinance with Directives for the National Courts Admini- stration [2007:1073] and Section 4.4 of the Ordinance [2007:515]. The head of a court is therefore obliged to keep abreast of the problems and difficulties that may arise during the operations of the court and also to adopt any measures that may be required. The possibilities open to the head of a court to direct and exercise administrative control of these operations are, however, more restricted than for the heads of other agencies, both because 2 008 /0 9:JO1 B I L A G A 10 the courts are subject to statutory provisions to a greater extent than in other areas and also because the principle of the independence of judges sets limits to the measures that can be adopted. I have found grounds in this decision to deal with the issues cited above both at a more general level as well as with reference to the circumstances at the District Court of . The obligation of the head of a court to acquire information In a number of previous cases the Parliamentary Ombudsmen have stressed how important it is for district courts to have effective routines for track of outstanding cases and matters that have not been determined, and have found that the responsibility for the existence of such systems lies ulti- with the chief judge in his or her capacity as head of the court (see for instance Parliamentary Ombudsmen 1991/92 p. 35, Parliamentary Ombuds- men 1992/93, p. In several adjudications the Parliamentary Ombudsmen have declared that this supervision generally takes the form of regular meet- ings between the Chief Judge, or where relevant a , and each of the judges at the court to conduct a unit review during which particular attention should be paid to outstanding cases and matters. The Chief Judges operational responsibility means that he or she should initiate investigation of the circumstances if no satisfactory explanation can be offered for continued failure to determine an outstanding case or matter. During my inspection and in the individual complaints referred to above I was able to establish that it had taken far too long to deal with a large number of cases and matters and that there had been shortcomings in the way they had been monitored. In a number of cases and matters no action at all had been taken for several years. What came to light during the inspection and through the subsequent inquiries into the specific cases revealed that at some units there were grave shortcomings in the operations of the district court. The district courts administrative directives lay down that at the end of every six months the Chief Judge was to information about backlogs in each of the units. Per has stated with respect to his awareness of the backlogs as well as the time taken by units to deal with cases and matters that on the whole he was well informed about them and that he had an overall awareness of the number of cases that had been outstanding for six, twelve and 24 months but that he had no detailed information about them. He also stated that up until 2005 he had conducted regular six-monthly meetings with those responsible for the units to review their backlog lists of out- standing cases but that his superintendence of outstanding cases was inter- rupted for some time by the extensive and arduous process of implementing a reorganisation and the system with backlog lists was reintroduced in January 2006. These meetings did not involve detailed discussion of the cases but dealt, according to Per , more with what plans the judges had for when they were to be determined. If, despite information that it was to be determined, a case still remained unsettled at the subsequent meeting, differ- ent explanations were offered. Per has only accounted for the rou- B I L A G A 10 20 08 /09 :JO1 tines that applied to the supervision of earlier, outstanding cases. His response did not make clear whether other outstanding matters submitted to the court were subject to the same controls. On the question of the regularity of the meetings to discuss cases with the units at the district court different information has been provided. Two of the judges heard during the preliminary inquiry stated that as far as they were concerned no meetings of this kind took place before the spring of 2006. At the main hearing in the of Appeal in the case in which I prose- cuted one of the judges, other judges who gave evidence stated that no meet- ings were held to review the units cases. I shall not, however, go into this question and merely point out that statements differ. The inspections made by the head of a court to find out about workloads should, of course, deal both with cases and other matters. If these analyses are to have any real content and the chief judge is to gain a sound impression of the current work situation, the treatment of earlier cases and matters should at least be accounted for in some detail. In my opinion, it would be natural for a chief judge to require information from the judges responsible about what has prevented a case from being completed. In a discussion of this kind it would be possible for a chief judge not to identify cases and matters in which no measures have been taken by the court for a considerable time. I fully understand that the workload at a court can be burdensome or at times as seems to have been the case at District Court even extremely onerous. The head of a court may in such circumstances find it difficult to find the time required for measures that are not felt to be abso- lutely necessary. As head of the district court, however, the responsibility for its operations incumbent on a chief judge makes it unacceptable to omit to look more closely into the reasons for the failure to resolve cases and matters that remain outstanding. , of course, is it acceptable for attempts to ana- lyse these reasons not to be conducted in a way that enables shortcomings to be identified. It is worth pointing out that it is precisely when the workload is extremely severe that this kind of review is particularly important. I have been able to establish that most of the cases and matters in which I have found cause to criticise procedures should reasonably have been identi- fied if the meetings with the units had been conducted satisfactorily. The obligation of the head of a court to invoke measures It is my understanding that Per was not with one or two excep- tions aware that in a number of cases and matters no action had been taken by the court for a considerable period. Even so, here I consider it appropriate to deal with the question of what measures a chief judge should and can rea- sonably adopt if, during a meeting with a unit or in some other way, he or she becomes aware that no satisfactory explanation can be given for failure to determine cases or matters that have been outstanding for some time. To begin with, I would like to point out that I realise that the task of the head of a court is both precarious and difficult. The workings of a court are governed by a number of external factors that it can be difficult or down- 2 008 /0 9:JO1 B I L A G A 10 right impossible for the head of the court to influence, such as the allocation of public resources and funding and the influx of cases and issues. Moreover its operations are to a great extent subject to regulations. The possibilities of intervention open to the head of a court are also restricted by the fundamental principle of the rule of law that courts and judges are autonomous. The inde- pendence of judges in making rulings is laid down in the constitution as well as in international instruments in the field of rights and freedoms. Article 2 of Chapter 11 of the Instrument of Government stipulates that no public author- ity, not even the Riksdag, may decide how a court is to adjudicate in a par- ticular case or how a court is to apply a rule of law in a specific case. Article 6 of the ECHR on the right to a fair hearing emphasises the individuals enti- tlement to a public hearing before an independent and impartial court of law. The principles touched on here mean that the head of a court cannot adopt measures that encroach on the independence of individual judges in their adjudications. It goes without saying, therefore, that a chief judge is prevented even if this takes place with the intention of hastening the settlement of case from ordering a judge to reject specific evidence that has been submitted or to set a date for a main hearing in a case where the judge feels that further preparation is required. It is equally evident that the head of a court who is not given an adequate explanation for the failure to settle a case within a reasonable time can, and obviously should, exercise authority by discussing the situation that has arisen with the judge responsible. In my opinion in this context he or she may also share their experiences and offer the judge advice and guidance on any as- pects of the case that may require resolution. A peer-to-peer discussion of this kind, with no hint of directives or instructions, could in the majority of cases help to identify a solution at a relatively early stage. can it be considered an encroachment on the independence of individual judges in their adjudica- tions for the head of a court to offer a temporary abatement of the allocation of new cases or matters. The question here, however, is whether the head of a court who finds out that a case or matter is not being resolved within a reasonable period of time may offer the judge responsible the possibility of assigning it to another judge and, in particular, if he or she may decide to make such a reassignment with- out the consent of the judge responsible. Each reassignment of a case or matter inevitably involves some modifica- tion of the outcome of the random system of assigning cases and matters applied at Swedish courts of law. The allocation of cases and matters at ran- dom according to a predetermined system is of great importance in my opin- ion, not primarily to ensure the independence of judges in the narrow mean- ing of the term but more in order to satisfy the requirement of impartiality, i.e. to preclude even the suspicion that undue considerations may affect the allo- cation of new cases. The importance of the random allocation of cases and matters is also as- serted in international instruments on the independence of judges. For in- stance recommendations R(94)12 on the indepen- dence, efficiency and role of judges states that the allocation of cases and B I L A G A 10 20 08 /09 :JO1 matters at a court of law should not be influenced by the parties or other indi- viduals concerned and that it may take place for example by ballot or some similar system. Furthermore the recommendations state that a judge should not be relieved of a case without valid reasons. such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the government or administration. The decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges. The recommendation also says that if judges fail to carry out their duties efficiently and appropriately, all necessary measures that do not prejudice judicial independence should be taken. These measures may, for instance, include withdrawing cases from judges. These issues have also been discussed in , for example by of the Head of a Court and the Appointment of (SOU 2000:99).