frsrdg · GV04JO1 · 2008-01-01 00:00:00 — During the period covered by the report, the following have held office as Parliamentary Ombudsmen: Mr. (Chief Parliamentary Ombuds- man), Ms. The Deputy Ombudsmen Mr. Hans Ragnemalm 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. has dealt with matters concerning the prisons, the armed forces, taxation, customs, enforcement, 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 addi- tional aspects of civil administration, not supervised by any other Parliamen- tary Ombudsman. During the year, 5 711 new cases were registered with the Ombudsmen; 5 530 of them were complaint cases (a decrease by 274 compared to the num- ber during the previous year) and 91 were cases initiated by the Ombudsmen themselves on the basis of observations made during inspections, of newspa- per reports or on other grounds. 90 cases concerned new legislation, where the Parliamentary ombudsmen were given opportunity to express their opin- ion on inter alia bills. 5 733 cases were concluded during the period, a decrease by 318; out of them 5 563 were complaint cases, whereas 83 were cases initiated by the Ombudsmen themselves and 87 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 four of the cases dealt with by the Ombudsmen during the period. 2 007 /0 8:JO1 B I L A G A 10 Schedule of cases initiated by the Ombudsmen and concluded during the period 1 200630 2007 Access to public documents BILAGA 10 20 07 /08 :JO1 Schedule of complaint cases concluded during the period 1 200630 2007 ment, protection of Other cases at county control of lotteries e.a. foreign affairs; gen- 2 007 /0 8:JO1 B I L A G A 10 2.Reports of four individual casas The question of whether a Vice-Chancellor is empowered to decide on the transfer of the remains of an individual now in the of the universitys historical museum The remains of a Jewish individual were transferred in 1879 from the prison in to . During the period 18791995 these remains formed part of the collection of in the . In 1995 they were moved to the universitys historical museum. In the university received a request from the Jewish con- gregation in for the transfer of the remains to the congregation for burial according to the Jewish rite in the Jewish cemetery in . On 17 February 2005 the Vice-Chancellor, , decided that the remains were to be transferred to the congregation. A complaint about the decision of the Vice-Chancellor, , to transfer the remains to the congregation was submitted by E.I. The grounds for this complaint included the following. By transferring the re- mains the Vice-Chancellor had disposed of government property. The dis- posal of state property is subject to the Act on the National Budget (1196:1059). The Vice-Chancellor was not empowered to make the decision in question but this was an issue that had to be determined by the Govern- ment. A number of documents were attached to the complaint, among them the Vice-Chancellors decision of 17 February 2005 (reg. I A 9 6523/04). The complaint was referred to the Board of inquiry and a response. In its response the Board submitted the following. On the university received a letter from the Jewish con- gregation in containing a request for the transfer of the remains of a Jewish individual to the congregation for burial according to the Jewish rite in the Jewish cemetery in . These remains had come into the possession of the university in 1879 from the prison in . The deceased had taken his own life. The identity of the deceased is not known. The remains were kept during the period 18791995 in in the . The remains be- came the property of the university department pursuant to the legislation in force until the beginning of the 1950s, which stated that unclaimed remains could be transferred for use in research and teaching. BILAGA 10 20 07 /08 :JO1 When was closed down in 1995 the remains were moved to the universitys historical museum, where they were kept until 2 2005, when they were interred in the graveyard of the Jewish congre- gation in . The university carried out a comprehensive inquiry before any decision was made on the possible transfer of the remains to the Jewish congregation. The university found that the following three conditions should be fulfilled if any such transfer were to take place: It had to be shown that the grounds for taking custody of the remains were well-founded (for religious or cultural reasons, for instance). 2.The legitimacy of the recipient had to be clearly established. 3.It had to show that the recipient would take charge of the remains in a fit- To begin with, the question of whether the request of the Jewish congrega- tion was well-founded was examined. Discussions with the section for Juda- ism in the made it clear that according to Jewish practice it was important for human remains to be interred in consecrated earth. This also includes those who are not of the Jewish faith or who have taken their own lives. The university considered that in this context the request was well- founded. The legitimacy of the recipient of the remains was then appraised. Was there any other legitimate individual or organisation that could claim the remains? Previously there had been nobody who had made a legitimate claim. The university ascertained that there was only one Jewish congregation in the south of , which was the one in . No other congregation could reasonably submit a claim on legitimate grounds for the remains. could the university identify any other legitimate organisation that could make a corresponding claim. Thirdly, the university examined how the Jewish congregation in would deal with the remains if they were transferred. The Vice-Chancellor had a discussion with representatives of the Jewish congregation and on 9 February 2005 he received written confirmation of what would happen to the remains. The university found that the congregations description complied with stringent requirements that the remains would be dealt with fittingly. The university inquired further into the way in which similar cases had been handled by other universities and state authorities. The university had contacts with , and . In the cases where transfers had taken place, the decisions had been made by the institutions themselves. The university also looked into procedures in similar cases in the , for example, and found that it was recommended not least for ethical reasons that human remains should be transferred from museums to legitimate recipients. To satisfy potential future research requirements, comprehensive docu- mentation of the remains of the Jewish individual was carried out by the his- torical museum. The Vice-Chancellor made his decision on 17 February and the remains were transferred to the Jewish congregation in . The university reported this decision unofficially to the tion and Culture. The university was assured by word of mouth that no meas- ures would be taken by the ministry concerning the transfer. In a letter of to the Minister, , the complainants criticised the universitys decision to transfer the remains of this identifiable 2 007 /0 8:JO1 B I L A G A 10 The minister rejected their criticism in a government decision on 26 . In this complaint against the Vice-Chancellor of , the com- plainants consider that the Vice-Chancellor has made a decision that should have been made by the Government and cite the Act on the National Budget (1996:1059), which contains regulations on the transfer of government prop- erty. The complainants define the remains in this case as moveable property. To begin with, the university would like to point out that the point of de- parture in decisions concerning human remains should take into account ethi- cal, cultural or religious factors. For this reason it would seem objectionable from a general, human point of view to regard the remains of an identifiable person primarily as state property. On these grounds alone, the remains of an identifiable individual cannot be dealt with according to the provisions of the Act on the National Budget. This act is primarily intended to regulate eco- nomic issues ultimately it deals with fiscal powers and to cite this legisla- tion with regard to human remains therefore seems unnatural. If, nevertheless, the remains are to be considered government property, the university would then argue that the Act on the National Budget cannot, in the universitys opinion, be interpreted to mean that public authorities account- able to the Government must in every individual case refer decisions involv- ing the divestment of state property to the Government. The bill preceding the act in question contains the following: The Government will need to dele- gate the powers assigned to it to accountable authorities. Delegation of this kind is necessary and will take place extensively. Where the Governments powers are referred to below, these will, after delegation, be exercised in actual fact in many areas by various subordinate authorities (government bill 1995/96:220 ch. Delegation of this kind to authorities accountable to the Government with regard to sales was embodied in the Ordinance on the Transfer of Moveable Property Belonging to the State (1996:1191). There are no regulations that apply to divestment or disposal other than by sale. This occurs frequently, however, in government authorities. When an authority decides that an object is surplus to requirements, the normal practice is to dispose of it in some way other than by sale, provided that the object lacks any financial value. The university considers that the existence of regulations about sale but not about other forms of disposal strengthens the belief that the Act on the National Budget was primarily intended to regulate circumstances and assets that had economic value. The university has also on a number of occasions acted in accordance with this point of view, for instance by donating scientific equipment that it no longer considers it can use and that has no market value to speak of to univer- sities in the Baltic states. The universitys belief in this respect is confirmed by the reports described above received from other Swedish universities. In this case as well, the question of sale did not arise. To sum up, the university would like to maintain that any assessment of the transfer of the remains of an identifiable individual must take as its point of departure ethical, cultural or religious factors and not the Act on the Na- tional Budget. The complainants submitted a rejoinder to the universitys response. In her adjudication of 12 February 2007, the Parliamentary Ombudsman, . , made the following observations. BILAGA 10 20 07 /08 :JO1 lays down in Article 9.8 that state funding and other state assets are at the disposal of the Government. This does not apply, however, to assets that are intended for the Riksdag or its agencies or that have been assigned by law for separate administration. Article 9.9 of the Instrument of Government stipulates that the Riksdag de- termines, insofar as is necessary, the principles governing the management of state property and its disposition. In the travaux préparatoires for this provi- sion it is said that this can suitably take place through legislation (government bill 1973:90 p. In addition, this provision also permits the Riksdag to lay down that certain types of measures may not be adopted without its per- mission. The Act on the National Budget (1996:1059) specifies and supplements the general provisions in the Instrument of Government and the Riksdag Or- dinance on the national budget and fiscal powers. This act lays down, for instance, what forms of funding may be used and the conditions that shall apply to them. The act also contains basic provisions about the transfer of the Governments fixed assets and the transfer of shares and other moveable property. Section 28 stipulates that the Government is able to decide on the transfer of moveable property other than that specified in Sections 26 and 27, if this property is surplus to state requirements or has become unusable, or if it was not acquired with state funding. The provisions in Sections 26 and 27 deal with shares and leaseholds, etc. The travaux préparatoires for Section 28 of the Act on the National Budget include the following: The proposed provisions are only to apply to the kinds of sale arranged inter- mittently of property that has been involved or used in the operations of pub- lic authorities. The area to which they will apply is restricted therefore to the kind of sale that does not form part of routine revenue-funded operations (bill 1995/96: 220 p. This section not only regulates sale but also other forms of transfer, for exam- ple donations. The provision also covers moveable property other than that listed in Sections 26 and 27, i.e. moveable property other than shares and holdings in companies, leaseholds or that are moveable property. The section applies mainly to the sale of moveable property. The Government may decide on the transfer of the kind of moveable property laid down in the section if any of the alternative conditions it specifies exist. The first condition is that the property is surplus to state requirements or is unusable. This applies irrespective of the funds used for its acquisition. This means that property of this kind may, for instance, also be given away. If property has been acquired in some other way than with state funds, the Government may transfer it even though it cannot be described as unusable or surplus to requirements. The kind of property concerned may include, for instance, gifts made to the state or the spoils of war. By virtue of this provi- sion the Government may exhibits to foreign powers if the property has been taken as booty or if it has been acquired in some other way without the expenditure of state funds. If property has been paid for in part 2 007 /0 8:JO1 B I L A G A 10 with state funds and partly in some other way, for instance through donation, the Government may decide on its transfer (bill cited, p. Virtually the only form of transfer of moveable property that takes place is the sale of unusable or surplus equipment. It is very difficult, on the whole, to envisage a situation in which the state would transfer moveable property that is still serviceable and required for operational purposes. This kind of situa- tion may arise, however, when the Government on rare occasions offers a museum object as an official donation. The Riksdag has made no objections to the few decisions of this kind that have been made by the Government without its prior consent (see, for example, KU 1975:12 and bet. 1989/90:KrU7) [bill cited, p. Section 48 of the Act on the National Budget stipulates that the Govern- ment may delegate its powers pursuant to Section 28 to those authorities it decides. The travaux préparatoires to the provisions in Section 48 contain the following: The act primarily regulates the relationship between the Riksdag and the Government. However, state activities are mainly undertaken by authorities accountable to the Government. It must be possible in most cases for the Government to be able to delegate the powers conferred on it by this act. Authority for this delegation is provided in this section. The delegation of the right to decide may take the form of an ordinance, for instance, or directives (bill cited, p. Through the Ordinance on the Transfer of Moveable Property Belonging to the State (1996:1191), authorities accountable to the Government have been empowered (Section 2) to make decisions on the sale of shares and other moveable property. With regard to other moveable property it is stipulated that sale may take place if the property is surplus to requirements or has be- come unusable (Section 6). The stipulations on sales also apply to exchanges (Section 3). Unlike the concept of fixed property, the content of which is legally de- fined, there are no regulations that define what is meant by moveable prop- erty. This concept can only be defined in negative terms. It includes every- thing that is not fixed property. Authority to make decisions The supervision by the Parliamentary Ombudsmen is primarily focused on investigating whether the actions of authorities are formally correct. The Parliamentary Ombudsmen therefore refrain from expressing opinions on the judgements made by authorities in specific cases. My inquiry in this case has dealt solely with the issue of whether the Vice-Chancellor was empowered to make the decision to transfer the remains of an individual from the univer- sitys historical museum to the Jewish congregation in . As can be seen from the contents of the section headed Legal regulations etc. the Act on the National Budget contains basic provisions about the transfer of fixed property belonging to the state as well as the transfer of BILAGA 10 20 07 /08 :JO1 shares and other moveable property. Section 28 lays down that the Govern- ment may decide to transfer other moveable property if it is surplus to re- quirements or has become unusable, or if state funding has not been used for its acquisition. In the case in question the remains of a deceased individual were donated in 1879 to and have since been in its , at the Depart- ment of Anatomy in the and then in the universitys historical museum. These remains consist of a skull. Even though the skull is that of an identified individual and it may seem alien to refer to it as moveable property, I, for my part, can come to no other conclusion than that the skull, in view of the long period that has elapsed, should now have been regarded as an object that belonged to the museums collections and as state property. One starting point in my appraisal is therefore that the skull was, at the time of its transfer to the congregation, the kind of object that is in itself subject to the constitutional provisions de- scribed above. I also believe that I may assume that the remains were origi- nally given to the university free of charge. As the board of the university states in its response, the Government is empowered to delegate the authority conferred on it by the Act on the Na- tional Budget. It has done so, for instance, in the Ordinance on the Transfer of Moveable Property Belonging to the State. This ordinance lays down that authorities accountable to the Government may, subject to certain conditions, decide on the sale or exchange of moveable property. The ordinance does not, however, apply to other forms of transfer. The circumstances described here mean that there were no formal provi- sions to enable the Vice-Chancellor to make the decision but that the question of the transfer of the skull should have been referred to the Government for its opinion. With this observation, the case is closed. It can be added that in a decision of 23 2005 (U2006/3451/Kr) the Government gave certain state museums and universities the task of making an inventory of collections of objects in order to identify any human remains (osteological material, i.e. complete skeletons or parts of them) from aborigi- nal populations. This decision contained the following comment. These authorities are responsible for the review and conservation of state collections. One of the tasks for these authorities is to determine in which cases human remains should remain in their collections or be transferred. transfers that may be arranged free of charge, in or elsewhere, must be decided by the Government. In view of what has come to light in this inquiry, a copy of this adjudication is being sent to the for its information. 2 007 /0 8:JO1 B I L A G A 10 Statement regarding whether the expression of an opinion can be regarded as disorderly conduct in the sense used in the Criminal Code criticism of intervention during a demonstration submitted a complaint to the Parliamentary Ombudsmen about the County Authority as a result of the actions of an officer during a demonstration. His statement included the following. On 2 2005 a demonstration took place arranged by MBR, a human rights organisation for bio-ethical reform, at in . The authorities had granted the following permit for the demonstration: Demonstration against abortion law with banners/pictures and megaphones. However only ten or so individuals took part in the demonstration, among them the chairman of the organisation, . The demonstrators carried four banners with texts and pictures. The images represented aborted foetuses and were 1 metre in height and 70100 centimetres wide. The texts alongside the pictures read, for instance. We didnt feel we had time. Sorry, I made your mummy have an abortion sorry, and than a million unborn put to death in since 1975. As and others had been concerned before the demonstration about the possibility of counter-demonstrators, a policeman had promised to ensure that they would be met by a patrol where the demonstration was to take place. But when no policemen arrived, the protest was started. On one occasion a lively discussion broke out with a woman passer-by. A small crowd gathered and rang the for safetys sake. A patrol including Inspector arrived and the demonstration could then continue without disturbance. After the protest had been taking place for about two hours declared that the pictures had to be removed as in his judgement they caused offence. If not removed, the pictures would be confiscated. , who based his decision on the Act on Disorderly Conduct also stated that the demonstration could continue without the pictures. The demon- strators complied and removed the pictures but also terminated the demon- stration as they could see no point in continuing when the pictures consti- tuted the main expression of their opinion. According to the organisation had been given permission to display the pictures and he therefore raised the question of whether decision in fact involved an infringement of democratic free- doms and rights. A copy of the permit issued for the demonstration and a report on the incident were requested and appraised. BILAGA 10 20 07 /08 :JO1 The permit showed that was the organiser responsible for a demonstration against the abortion law with banners/pictures and mega- phones to be held in on 2 2005 between 2 and 6 p.m. The report contained entries stating that 3.43 p.m. it was calm and that was later instructed to take the pictures down but can otherwise continue the demonstration. It was also noted that the pictures were about 100 by 120 centimetres and depicted aborted and dissected foe- tuses. The case was referred to the authority for information and an opin- ion on what had been reported in the complaint. The authority (Chief Commissioner ) submitted a response with attachments containing information from acting District Com- missioner (omitted here) and District Commissioner as well as a memorandum signed by the operational commander, Inspec- tor . account included the following. On the day in question I was acting as operational commander and given the task by my superiors of superintending the demonstration. The reason for the superintendence was to prevent violence from any counter-demonstration that could take place. When I arrived at the scene (3.31 p.m.) there were about ten or so counter-demonstrators who left after a short while. I remained on the scene.