frsrdg · GX04JO1 · 2009-11-12 00:00:00 — -en åklagare har att i en förundersökning rörande tjänstefel i förekommande fall beakta den tidsfrist som gäller för att en fråga om disciplinansvar ska kunna prövas 09/10:119 -kritik mot en av ett ärende om god man m.m. 09/10:420 -kritik mot en överförmyndare och en tingsrätt för brister i utredningen av en blivande god mans lämplighet m.m. 09/10:426 -initiativärende om en överförmyndarnämnds handläggning av ett förvaltar- ärende; uttalanden om behov av s.k. förvaltarenheter 09/10:431 2 009 /1 0:JO1 The Swedish Parliamentary Ombudsmen Report for the period 1 2008 to 30 2009 1 General information and statistics 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 Ragne- malm 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 the customs service, while Ms. has dealt with i.a. matters concerning the prisons and institutions of detention, the armed forces, social insurance and chief guardians. has supervised the fields of social welfare, public health and care, education and the administra- tive courts (except the immigration courts). Axberger, finally, has been responsible for the supervision of taxation and enforcement, and construction, immigration, environmental protection, farming and protection of animals, administration of foreign affairs and labour market. Within his area of responsibility have also been all additional aspects of civil administra- tion not supervised by any other Parliamentary Ombudsman. During the working year, 6,918 new cases were registered with the Om- budsmen; 6,729 of them were complaint cases (an increase by 373 [] compared to the number during the previous working year) and 68 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. 6,858 cases were concluded during the period, an increase by 545 (); out of them 6,671 were complaint cases, whereas 65 were cases initiated by the Ombudsmen themselves and 122 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. 2 009 /1 0:JO1 B I L A G A 10 Schedule of cases initiated by the Ombudsmen and concluded during the period 1 200830 2009 Freedom of expression; access to public documents B I L A G A 10 20 09 /10 :JO1 Schedule of complaint cases concluded during the period 1 200830 2009 ment, protection of Other cases at county control of lotteries etc. Freedom of expression; access to official docu- affairs; general elections * In addition, there were 156 complaint cases which were dismissed with reference to the initiative cases no. 4346-2008 about problems caused by the reorganization of the . 2 009 /1 0:JO1 B I L A G A 10 2 Reports of five individual cases The enquiry required by a board of social welfare when requested by a court of law to submit an opinion in connection with an adoption: the question of whether a board of social welfare should have sought to establish contact with children living in . In a court in in the Democratic Republic of the made . the guardian of his three nieces and nephews, born in 1994, 1995 and 1996, who were then living with ., his wife and their children. . was granted a permanent permit in in 2002. In rejected an application for permits for the nieces and nephews who were then living in in . An appeal against this decision was rejected by in 2005. One of the reasons given by was that . could not be considered to be the chil- drens parent as no adoption had taken place that could be recognised in Swe- den. . then turned to the District Court of and applied for permission to adopt his three nieces and nephews. In connection with this application, the District Court requested an opinion from local authority of . The board submitted a record of its enquiry to the District Court. This included the following statements. The case officers had no information about the children in question apart from the details provided by . It was not therefore possible to determine whether the proposed adoption would benefit them. A complaint was made to the Parliamentary Ombudsmen by . against and local authority of . The complaint against related, among other things, to the fact that it had made no attempt to deter- mine the childrens attitude to the adoption. The complaint against was examined by the Parliamentary Ombudsman and his adjudication was issued on 7 2007 (Parliamentary Ombudsmen reg. The Parliamentary Ombudsman referred the complaint to local authority of for its response with regard to the procedure adopted. B I L A G A 10 20 09 /10 :JO1 The boards official response took the form of a report that had been drawn up by two of its family law officers, and . This report included the following: A request was received from the District Court of in Härnö- sand on for an opinion on application to adopt his three nieces and nephews as described above. This opinion was to be submitted to the court no later than . The enquiry period was extended by the court to 13 2006 at our request. This was because the time allowed for the enquiry was far too short to enable the case to be raised at the meeting of on . Because of the unusual nature of the case, the () was contacted so that the advice of an experienced lawyer on how it should be dealt with could be sought. The ad- vice we were given was to concentrate our enquiry on the applicant and his circumstances. During the enquiry we met . for discussions on two occasions, 9 January 2006 and 23 January 2006. At this second meeting a French inter- preter participated. . presented documents from a Court in , Kirisimbi, in the Democratic Republic of the , which showed that he had custody/was the guardian of the children in question. According to . in his country this was equivalent to adoption. As it had been made clear that . had custody/was the guardian of the children we relied on the information he provided about the childrens situation in , etc. He had been responsible for these children since 1997. It transpired that his intention was to continue to be responsible for and to take care of the children and that he wanted to be able to bring them to . This case was discussed at the meeting of on 31 January 2006. . attended this meeting. The decision of the board was to refer the case for further action so that it could be raised at the next meeting when . could be assisted by an interpreter. The reason for the boards referral of the case was its uncertainty about what opinion it should submit on this issue. At the meeting of on 28 February 2006 a sup- plementary document was presented that was dated 9 February 2006. . was allowed to attend the meeting with an interpreter. The board decided not to submit any opinion about the adoption but instead the District Court was provided with the report on the enquiry dated 23 January 2006 as well as the supplementary document dated 9 February 2006 in response to its request for an opinion. The fact that . already had custody/was the guardian of the chil- dren in question led us to question the adoption procedure. During the enquiry we officials sought information from both and dealt with the case accord- ing to the instructions we received. The idea that we should in our enquiry have sought contact with the children in never occurred to us. We have had no reason of any kind to doubt the information given to us by . or to question the veracity of the documents he has presented. . was given an opportunity to submit a rejoinder to this official response. In her adjudication dated , the Parliamentary Ombudsman . included the following. 2 009 /1 0:JO1 B I L A G A 10 In cases involving the adoption of a child that has not reached the age of 18, Section 10 of Chapter 4 of the Swedish Parental Code lays down that a court must request an opinion from the board of social welfare in the local authority in which the applicant is registered. The board of social welfare must, unless it is inappropriate, endeavour to determine the attitude of the child and report it to the court. The board of social welfare was asked by the district court to submit an opin- ion on an adoption issue. At a meeting on 28 February 2006 the board de- cided to provide the court with the report from an enquiry that had been un- dertaken by the boards administrators. The administrative officials had made no contact with the children during their enquiry. In this context the report submitted by the board to the Parliamentary Ombudsmen includes, for in- stance, the statement The idea that we should in our enquiry have sought contact with the children in never occurred to us. For many years the principle of what is best for the child has been en- shrined in Swedish law where cases and issues regarding children are con- cerned (see, for instance, the report of dren SOU 1997:116 pp. If this principle is to be maintained, it is impor- tant to enable children to voice their opinions, a view that is also expressed in Article 12 of the UN Convention on the Rights of the Child. This article states that the views of the child should be given due weight in accordance with the age and maturity of the child. In 1995 the Government submitted a bill on the of the Child to Voice an Opinion (1994/95:224). This bill proposed explicit regulations on the rights of children to voice opinions in cases and issues relating to adop- tion, for instance, and led to the incorporation in Section 10 of Chapter 4 of the Swedish Parental Code of the provision that a board of social welfare must, unless it is inappropriate, endeavour to determine the attitude of the child and report it to the court. The bill contains examples of situations in which it could be inappropriate to try to find out what opinion a child may have. This can be the case, for instance, when a child is not old enough or mature enough to have its own opinion on the issue, when a child is sensitive and impressionable or if its opinion has been established through some other enquiry (op. cit. In this case nothing has come to light to suggest that it would have been in- appropriate to ascertain the opinions of the children. It is therefore with some surprise that I note that it never occurred to the officials to attempt to find out if it was possible to make contact with the children in the course of their en- quiry. If it had turned out to be possible to make such a contact, the board would then have had to make a decision about how the children were to be enabled to voice their opinions on this case. According to the official response, the board sought guidance from the District Court and B I L A G A 10 20 09 /10 :JO1 () on how its enquiry should be conducted. Irrespective of any informa- tion the officials may have received in this way, I consider that it cannot ex- cuse their disregard of their legal responsibility to determine the opinion of the child in an adoption case. Through their negligence they have ignored a provision that is of fundamental significance where the rights of children are concerned. A general review of the provisions on adoption in Chapter 4 of the Parental Code is currently being undertaken by the 2008 Adoption Enquiry. According to the instructions laid down for it, this enquiry is, among other things, to study the measures adopted by boards of social welfare when opinions are requested, how these opinions are worded and to what extent the viewpoints of the children are to be clarified (instructions 2007:150). I am forwarding a copy of this adjudication to the enquiry for its information. The representations made by . in other respects call for no state- ments from me. 2 009 /1 0:JO1 B I L A G A 10 The issue of the possibilities for a board of social welfare to make a home visit in the course of an enquiry concerning entitlement to income support 2383-2007 and 148-2008) submitted written complaints to the Parliamentary Ombudsmen concern- ing administrative officials at in the . stated, for instance, that in the course of dealing with a case involving income support officials had conducted an unlawful search of premises in connection with a home visit. During the visit the officials were alleged, among other things, to have made a tour of T.Ps apartment and opened drawers and wardrobes. To begin with written information was requested from in the . in the was then asked to submit an enquiry and a statement on the allegations made by T.P. in his complaint about what had happened during the home visit. The board adopted as its response an official statement signed by the head of the unit, . This statement included the following. has been on the books of the income support unit for many years. Since February 2007 he has been receiving income support on the grounds of illness and lack of any income of his own. As it has been observed that T.Ps elec- tricity bills are very large the unit wondered what this could be due to. The income support unit has also found grounds for investigating in more detail whether T.P. is cohabiting with a woman who has accompanied him on his visits to the unit on a number of occasions. On 13 February 2007 the unit made a visit to T.Ps home after he had been notified of this intention by letter. The aim was to attempt to determine the reasons for the large electricity bills and to find out who was registered at T.Ps address. The duties of the units officials involve both making enquiries and giving advice. In order to be able to offer advice about reducing electricity costs, the officials making the visit asked for and received T.Ps permission to open his fridge and free- zer. This was in order to see whether there were excessive amounts of ice as this can lead to high electricity costs. In addition it was noted that two electric humidifiers were in operation, which can also result in considerable consump- tion of electricity. The unit is also obliged to determine whether the applicant is living alone or with somebody else, as this affects the amount of income support payable. The units official made a tour of the apartment, which may have been ex- perienced as a violation of T.Ps integrity. The officials claim that they did not look under the bed or sofa, lift any clothes, or open any wardrobes or drawers. See the attached copies from the official record (not included here, Parliamentary Ombudsmans comment). In the opinion of the officials, they tried to conduct the home visit as re- spectfully as possible. They received T.Ps permission to open the fridge and freezer. expresses a different opinion, which is regrettable. It is difficult to ascertain in retrospect what was said exactly in this situation. B I L A G A 10 20 09 /10 :JO1 aware that a home visit can be sensitive and verge on infringement of an indi- viduals integrity and therefore attempted to conduct the visit with as much respect as possible. Our intention is that future home visits will also be under- taken as tactfully and with as much respect for the individual as possible. was given an opportunity to submit a rejoinder to this official response. In her adjudication of the Parliamentary Ombudsman . included the following. Section 1 of Chapter 11 of the Act (2001:453) lays down that a board of social welfare must without delay launch an enquiry into anything which through an application or in some other way has come to the boards attention and may give rise to some form of action on its behalf. The actions of the social services are to be based on respect for the auto- nomy and integrity of the individual. Interventions by the social services must as far as possible be planned and implemented in agreement with the indivi- dual. The information required by a board of social welfare to deal with an application or provide support must come primarily from the applicant. If a board considers it necessary to obtain information from some other quarter, it should consult the individual. In dealing with cases involving financial sup- port the starting point is that the board is not allowed to take any investigative measures without the applicants consent. In its publication entitled Handläggning och dokumentation inom social- tjänsten [Procedures and records in the social services], 2nd ed, p. 95, makes the following statement about gathering information during an enquiry. In order to appraise the needs of an individual and to make a correct overall assessment in a case, an official may need to collect information about the individual in many different ways. How comprehensive this information has to be is determined by the complexity of the issue. The most common sources of information are personal discussions, primarily with the individual, but relatives and representatives of other agencies (such as schools, the health services and labour market agencies) can also provide important information. In addition observations made during home visits or in other environments in which the individual spends time, such as short-term residential care facilities, may offer useful information, as may transcripts from registers and analysis of the documents on file. Section 6 of Chapter 2 of the Instrument of Government provides protection for every citizen against house searches and similar forms of encroachment. House search includes every form of search of , premises or closed repository undertaken by a public authority irrespective of its purpose (Govt. 1975/76:209 p. This protection may only be restricted by law and solely in order to achieve a purpose acceptable in a democratic society (Sec- tion 12 of Chapter 2 of the Instrument of Government). In this context I would also like to draw attention to Article 8 in Convention dated on the Protection of Human Rights and Fundamental Freedoms (Convention) that states that all individuals are, among other things, entitled to respect for their homes. 2 009 /1 0:JO1 B I L A G A 10 In certain cases the social services may have a justifiable interest in mak- ing visits to the home of an applicant for support in order to form an impres- sion of what kinds of help are needed and to what extent the individual is entitled to support from the board of social welfare. In view of what has been presented above, a visit to the home of an individual must be conducted in a way that does not violate the protection offered to the individual by the provi- sions of the Instrument of Government and through Convention on Human Rights. There are no statutory provisions that restrict this protec- tion with regards to the case at hand. A fundamental requirement if a board of social welfare is going to undertake a home visit in the course of a case con- cerning support is therefore the consent of the individual to the visit. Without this consent no home visit may be made in order to conduct the enquiry. I shall not discuss here what may be permissible in emergency situations. In its response the board has stated that the unit had requested T.Ps per- mission to make the visit. One of its purposes was to determine whether T.P. was living with someone else. The officials were also to assist T.P. with ad- vice on how he might possibly reduce his electricity costs. The enquiry has revealed that T.P. did give his consent to a visit by offi- cials from the unit to his home. When it comes to whether the officials opened a wardrobe or drawers, there is conflicting information about what occurred. In its response the board has rejected T.Ps allegation in this re- spect. I have nothing on which to base any judgement that the information from the board was incorrect. On the other hand, the enquiry does disclose that during their visit the offi- cials opened the fridge and freezer. The board has stated in its response that this was in order to assist T.P. with advice on whether he should defrost the fridge and that T.P. consented to this action. It could, however, be discussed whether this matter could have been managed with less infringement of T.Ps integrity, for instance by asking him questions. With this comment I shall leave this issue. Even if the officials did not undertake any thorough inspection of T.Ps apartment during the home visit, it has been made clear that they walked around it. The question of whether T.P. had in any way given his permission for them to move around his apartment more or less freely is not answered in the official response. It is unlikely that further investigation on my part could shed light on this issue. I am obliged to state that there is some uncertainty about what happened specifically and how far T.Ps consent actually ex- tended. I would therefore like to draw attention to the obligation to maintain records incumbent on the board pursuant to Section 5 of Chapter 11 of the Act. The notes that have been made about this visit are defec- tive with regard to what T.P. had consented to both before and during the visit. This is not acceptable. What a board of social welfare is allowed to do and how, in practice, the integrity of individuals is to be taken into account during a home visit is not entirely uncomplicated. In my opinion, boards of social welfare may need guidance in this respect, not least in view of the demarcation problems that may arise when it comes to determining whether a measure complies with the B I L A G A 10 20 09 /10 :JO1 provisions on protection of an individuals home in the Instrument of Gov- ernment and Convention on Human Rights. I am therefore send- ing a copy of this adjudication to . 2 009 /1 0:JO1 B I L A G A 10 Criticism of a public prosecutor for not allowing a defence counsel to be present at an initial interview with an individual who is to be informed that he is suspected of murder and also of a authority for failing to notify the interrogating officers of the prosecutors instructions , a trial lawyer, submitted an application to the Parliamentary Ombudsmen in which he requested review of the decision of , Deputy Chief District Prosecutor at the Västerort local public prosecution office in , not to allow him to be present at an interview in which his client was informed that he was suspected of murder and other crimes. In addition, he raised the question of whether on this occasion the officers had undertaken a much more extensive interrogation than they had been in- structed to by . application included the follow- ing information. On Monday 5 February 2007, after his office had closed for the day, was contacted by N.A. who said that a warrant had been issued for his arrest in his absence. was extremely disturbed and had decided to hand himself in to the and account for his actions. N.As brother had also decided to hand himself in to the and had therefore contacted another lawyer named . then telephoned the investigating officer at station and announced that the two suspects would make their appearance. At the station was informed by a officer that neither he nor , who had arrived together with N.As brother, would be allowed to attend the interrogation as they had not been appointed as public defence counsel. considered this a re- markable response and therefore asked to be put in touch with . He confirmed the officers statement. explained to that he considered this to be a remarkable decision and that N.A. wanted him to act as his counsel privately until he could be appointed by the District Court.