frsrdg · GY04JO1 · 2010-11-10 00:00:00 — All that remains to determine is whether the measures, due to the circum- stances in this case, were nevertheless lawful. In making this appraisal there is reason to consider in more detail what was recorded in the judgement of District Court about competence as an executive officer. According to the description in the judgement an executive officer is supposed to investigate, manage and make decisions pursuant to the Aliens Act. was assessed by as a very skilful and particularly qualified executive officer that the board wanted to retain in this very capacity. It is also clear that considered capable of being an executive officer through his decision to reassign him to such a position. No other conclusion can be drawn from this but that was viewed as having a sound capacity to decide on issues objectively and impartially in accordance with current law. In the opinion of and , in other words, was able to distinguish between official requirements and private opinions and also there was no reason to feel any doubts about him in these respects. has, however, claimed that opinions on the conflict in the Middle East seriously jeopardised the confidence of the public and applicants in the capacity of to assess applica- tions for asylum from individuals who came from this region. No concrete circumstances to support this assumption have been submitted. The lack of more detailed specification may be interpreted as meaning that the underlying reasons for the measure adopted were at a more general level, i.e. that gener- ally speaking it would impair confidence in if it had a 2 010 /1 1:JO1 B I L A G A 10 head of a unit who gave public expression to opinions of the kind voiced by . The to uphold public confidence in an authority cannot, how- ever, as has been shown, be cited in support of reprisals against employees who have availed themselves of their individual freedom of expression in a context which is totally separate from their position. There exist, therefore, no legally acceptable grounds for the measure decided to invoke. It was not merely unlawful from the point of view of labour law, as determined by District Court, but also in breach of the constitution. It may be added that the grounds for the assumption that private assertions could have impaired confidence in are in themselves questionable. Freedom of opinion and expression are firmly rooted in Swedish society. There is probably widespread awareness that those who work in the public administration are entitled to their private opinions and that these need not be representative of the authority in which they serve. has thousands of employees and there are many managers working at the same level as . It is unlikely, in other words, that the existence on the Internet of the opinions he had expressed could have resulted in the serious harm for that its repre- sentatives feared, nor has any evidence for this been found. The appraisal presented here is based on the reasons submitted by to support his measures and the fact that the allegations about managerial shortcomings lack concrete substance. The conclusion is that the measures were ultimately and mainly prompted by statements pub- by . It should, however, be pointed out that if there had been any justification for labour law measures against as head of a unit, it would nevertheless have been impermissible to include in that context refer- ences to expression of his opinion as a private individual. In addition to the general requirements of objectivity in Article 9 of Chap- ter 1 of the Instrument of Government, it is also laid down that in making appointments to a public office only objective considerations may be taken into account, such as merit and competence (second paragraph of Article 9 of Chapter 11 of the Instrument of Government, see also et al., Grundlagarna [Constitutional ], 2006, p. 503 f.). This must also be the basis when making any alteration in a public officials terms of employment. reference to an individuals privately expressed opinions on general political issues when assessing her or his suitability for a managerial position should, in view of the protection offered to individual freedom of expression, in principle be considered irrelevant. I note that consid- ers in its submission to the Parliamentary Ombudsmen that an unfortunate confusion was made between opinions and his managerial quali- ties. This is correct. opinions should never have been taken into account at all when his reassignment was considered.