frsrdg · GZ04JO1 · 2011-11-16 00:00:00 — sent-day by a collective of international artists as a comment on the visit made by the Swedes during the regime. The picture therefore reflects the historical fact of the journey and that the Swedes dined with and his closest associates but it is not possible to determine which of the women in the picture is intended to represent . claims in her complaint that In the exhibition my name is linked in words and images to mass murder. This is correct only in the sense that was one of the four participants in the visit to in 1978 at the personal invitation of , and therefore figures in the exhibi- tion. There is no link to mass murder but to the visit to . name is used only with the quotation and under the picture in which she is depicted. Although the authority does not consider that it has any legal obligation to seek anybodys permission before quoting them, it did contact in advance in a spirit of transparency and dialogue. Here the authority would like to add the following comment. The exhibition opened in and in of the same year contact had already been made with by the project manager for the exhibition. A meeting was booked for 10 , but was, however, cancelled by . It was decided that would then get in touch, which she never did. The intention of this early contact was to enable to add a comment or a repudiation con- cerning the visit to in 1978. rejected the complainants opinion that the exhibi- tion violated her freedom of expression. The authority stated, for instance: Moreover, freedom of the press and of opinion never constitutes a right to unchallenged expression. It is rather a fact that the right to discuss and argue against opinions openly is a fundamental aspect of freedom of the press and of opinion. The exhibition does not form part of the exercise of power against individuals in the sense in which it used in the Administrative Procedure Act. could the exhibition be viewed as constituting slander or an affront to her. The authority concluded its statement as follows: Finally, it can be said that the exhibition is a natural undertaking within the framework of the task given by the Government to the : The special task of the authority is to provide information about the Holo- caust and the crimes of Communism against humanity. The authority is to strive to enhance human endeavours to act for the equal value of all individu- als as it is worded for instance in the instructions included in its mandate from the Government for 2009. and each submitted their rejoinder to the statements made about their complaints by the . also attached letters that had been exchanged. These show, for instance, that she was contacted on 1 2009 by a representative of the authority who wanted to present the exhibition to her and later shown some of the manuscripts for the exhibition but that she subsequently wrote to the au- thority on requesting the removal of her name from the exhibition. The project manager, , rejected her request in an e-mail dated 8 2008, in which, among other things, she answered that unfortunately it is impossible to make changes in the exhibition now. 2 011 /1 2:JO1 B I L A G A 10 Public authority shall be exercised with respect for the freedom and dignity of the individual (first paragraph of Article 2 of Chapter 1 of the Instrument of Government). The public administration shall protect the private life of the individual (fourth paragraph of Article 2 of Chapter 1 of the Instrument of Government). Those who discharge duties in the public administration shall observe in their work the equality of all persons before the law and shall maintain objectivity and impartiality (Article 9 of Chapter 1 of the Instrument of Government). Article 8 of Convention on Human Rights stipulates that the individual has the right to respect for his private life. This includes the right to protection from slander or defamatory information (, Mänskliga rättigheter i europeisk praxis [Human rights in European praxis], 3rd ed. 2007, p. Chapter 5 of the Criminal Code contains provisions on defamation. The penalties for slander protect the individual against the presentation of infor- mation by others that is intended to expose her or him to the disrespect of other people. This protection does not apply when there is an obligation to make a statement or when it is otherwise justifiable to provide the information on the matter and the one making the statement can show that the information was true or there were reasonable grounds for making it. The regulations on freedom of the press and of expression can be found in the Freedom of the Press Act and the Fundamental on Freedom of Ex- pression. These lay down that those who express themselves in a presentation that is covered by these constitutional enactments may not be subjected to punishment or other sanctions by the public administration unless the consti- tution provides support for this (what is known as the prohibition of repri- sals). contains a general provision that guar- antees every individual freedom of expression (1 of Article 1 of Chap- ter 2 of the Instrument of Government). This provision means, for instance, that the prohibition of reprisals must be considered to apply even when an individual has made use of her or his freedom of expression in forms other than those covered by the special constitutional enactments (for more details see the adjudication of the Parliamentary Ombudsmen in case no. 149-2009 in the Annual Report for 2010/2011 p. According to the Ordinance with Instructions for the (2007:1197) the following applies in principle. The task of the authority is to be a national forum to promote activities for democracy, tolerance and human rights using the Holocaust as its point of departure. Its task in particular is to provide information about the Holocaust and the crimes of Communism against humanity and it is to endeavour to enhance the of individuals to work actively for the equal rights of all individuals. The authority is to work proactively with a focus on knowledge, culture and education. Its operations are to be conducted in close contact with current research, other cultural and educational institutions, as well as public authori- B I L A G A 10 20 11 /12 :JO1 ties, organisations and associations whose activities involve similar issues. The authority is to promote increased knowledge based on research and col- laboration with others, such as higher education institutions, and to communi- cate knowledge with the area in which it operates. has pointed out that the presentations from the Living His- tory Forum contain erroneous factual information. The information provided by a public authority must be correct. This is laid down, if nowhere else, by the requirement in the Instrument of Govern- ment that in their operations authorities shall maintain objectivity. It must therefore be ensured that information provided by the public administration is trustworthy and carefully checked. Deviation from this can be criticised on legal grounds, particularly if the information is detrimental for individuals (see the adjudication of the Parliamentary Ombudsmen dated 16 February 2010, case no. 4935-2009, Annual Report 2010/11 p. It has been made clear that there was erroneous information about histori- cal documents. In activities of the kind the is to under- take, errors of fact can be made even though high standards of accuracy have been stringently observed. When this comes to light, the errors discovered must, as the authority points out in its submission to the Parliamentary Om- budsmen, be dealt with. is reminded of the requirements that apply. It is obviously of the greatest importance that the public is not given grounds to doubt that a document used by the authority to provide information is authen- tic. In the light of the remedial action reported by the authority in its submis- sion to the Parliamentary Ombudsmen there are, however, no adequate grounds for any other criticism of the authority on this point, apart from this observation. The commercial is about two minutes long. It consists of the presentation by an actor of a monologue on the purported benefits of spectacles: Are you also tired of mass-murder, torture, dictators who persecute, oppress and annihilate? Then you should try 1978s major innovation specta- cles. Be like and , visit a country called Demo- cratic . A country where 1.7 million people are dying as a result of famine and torture and outright executions. All you can see is happiness, the happiness of the people, all thanks to spectacles. Look at these people, the regime has forced them to leave their homes and their jobs to work in the rice paddies. No, they do not look particularly happy, but with spectacles they will seem happy to you! Volunteers working together on equal terms, all for the revolution. No, no, no! This is education. Yes, indeed the clay is easiest to shape when it is soft, as and the Red Khmers often say. Yes, look at the diligent small children. How happy they are to learn. 2 011 /1 2:JO1 B I L A G A 10 These are the spectacles that help you to correct your vision. And if you look after them carefully they will go on working for more than 30 years! So why wait? Be like the Swedish delegation see what you want to see. Order your spectacles today! [inaudible conclusion] The monologue is illustrated by pictures depicting mass , victims of torture, historically famous dictators and individuals wearing specta- cles. As can be seen, the message of the film is ironic. The genre to which it be- longs can best be classified as satire. Neither the basic constitutional provi- sions on the requirement of objectivity in the actions of the public administra- tion nor any other general principles prohibit, in my opinion, the use of dif- ferent stylistic devices by a public authority in providing information. There is however a difference between using satire to deride a phenomenon and deriding an identifiable individual (Cf. JO 1990/91 p. 144, in which the Par- liamentary Ombudsmen accepted the inclusion in official information on tobacco of a number of statements that could be considered one-sided and tinged with subjectivity but criticised the omission of important facts and the depiction of an individual in a way that offered a negative of his personality and character.) The contents of the film are linked to the group of four individuals who visited (Be like the Swedish delegation see what you want to see). Two of the participants are mentioned in the film itself. The exhibition material of which it formed part named all of them. Even if the film is in- tended to illustrate a phenomenon it nevertheless singles out four easily iden- tifiable individuals. It is obvious that the state may not use identified individuals in some way as warning examples in an otherwise praiseworthy information measure. This stems from the obligation incumbent on public authorities to both respect the freedom and dignity of individuals and to safeguard the name and reputation of each and every one person. The provisions on defamation only offer the state extremely limited scope to include disparaging information about indi- viduals in its provision of information or guidance to the general public. The scope that exists probably applies to those who have particular historical or contemporary significance because of the positions they hold or in some other way. If this scope is to be made use of, however, it has to be done in a justifi- able . In addition, the provisions on objectivity and impartiality apply. Providing facts about well-known historical or contemporary figures may, in other words, be acceptable even when these facts are to their discredit, but not as was the case here in ways that are intended to ridicule them. The rest of the exhibition It has been made clear that the exhibition had the 1978 visit as its starting point and that it dealt with the way in which peoples ability to perceive real- ity can be obstructed by ideological blinkers: both these elements can already be seen in the name of the exhibition. It has also been shown that is identified as one of the individuals used to illustrate the exhibi- B I L A G A 10 20 11 /12 :JO1 Its claim is that because of ideological convictions she failed or was unable to react to the crimes against humanity that were taking place when she visited what was then . This is intended to expose to the contempt of others. As has already been said, it is not acceptable for the state to use identified individuals as warning examples for information purposes. The Living His- tory Forum has not claimed that is a public figure. has anything else come to light to show that there could otherwise have been scope for the public administration to provide derogatory information about her in a context like this. For this reason there are no grounds for going any more closely into the in which the information was presented. In her complaint to the Parliamentary Ombudsmen has stated that she regards the exhibition as a punishment for the opinions she expressed. On this point I would agree with her to some extent. As has been shown, the exhibition focused on her actions and statements on political is- sues and used them as warning examples. The prohibition against reprisals in the Freedom of the Press Act has, for instance, been cited in practice as a ground for criticism of public authorities that have admonished members of their staff for taking advantage of their freedom of expression. What occurred here is not totally unlike a reprisal of this kind. It has become clear that the was in contact with during its work with the exhibition. has said that she first consented to the use of a photograph and a quotation but that at that time she was unaware of what she was consenting to and that when she later became aware of this she requested the removal of what applied to her. The authority has stated in its response to the Parliamentary Ombudsmen that it does not consider it is obliged to ask the permission of anyone before quoting them but that nevertheless it contacted in advance in a spirit of transparency and dialogue. According to its response the inten- tion was to enable to add a comment or a repudiation concerning the visit to in 1978. What has been stated by the in this respect can only be interpreted to mean that it was intended to use in its exhibition irrespective of whether she consented or not and that the intention of trying to contact her was limited to offering her an opportunity to comment on or repudiate her own actions. The conclusion is that her consent was not requested. A public authority has to act within the parameters laid down by legislation for its operations (the principle of legality). In this context the response from the can be understood to claim that what has been challenged by the complainants forms part of the authoritys task. The task entrusted to it is worded in general terms and there are, in my opinion, grounds for doubting that the intention was to give the authority the kind of freedom that it has adopted in this context. But irrespective of the 2 011 /1 2:JO1 B I L A G A 10 circumstances in this respect, the authoritys instructions are also set down in an ordinance issued by the Government. Ordinances of this kind are subordi- nate to what has been enacted by the Riksdag as legislation and constitutional provisions. Its task must therefore be undertaken within the parameters of the constitutional provisions accounted for above, which the authority is obliged to comply with of its own accord. In its defence, the has also used arguments that in- voke the concept of the freedom of journalists and researchers. This kind of freedom does not apply, however, to statements made by an agency on behalf of the public administration and with the authority that this includes. concretely, the has argued as if it enjoyed a right simi- lar to the freedom of expression of citizens to appraise and criticise individu- als. This is not the case. A public authority may not derive powers from pro- visions made to guarantee citizens freedom of expression vis-à-vis the public administration. Instead, for instance, the requirements of objectivity and im- partiality apply and these manifestly restrict the possibilities of what can be expressed on behalf of the public administration. Public agencies do not, in other words, have freedom of expression in the way that it is enjoyed by indi- viduals. Parliamentary Ombudsmen adjudication , reg. 4935-2009, Parliamentary Ombudsmen Annual Report 2010/11 p. What has been said here does not, of course, prevent an agency with a task of the kind entrusted to the from providing scope for individual participants in the course of its operations to express opinions etc. and giving them great freedom to do so. Provided that it is made clear that what is expressed is not the statement of any stance adopted by the agency, the requirements of objectivity and impartiality impose no restrictions on this freedom apart from the agencys overall responsibility for ensuring balance and validity. To avoid misunderstanding it should also be added that what is said here applies to the as a public authority. As citizens, the individual members of its staff have freedom of expression and can of course take advantage of their right to provide information unhindered by the restric- tions that apply to statements made on behalf of the public administration. Nothing of this kind has, however, been involved here. merits criticism for the use of identified individu- als as warning examples in its film. is also to be criticised for the violation of the integrity of inflicted by the exhibition as a whole. The film was deliberately designed in a way that was intended to ridicule the four individuals who took part in the visit to . This is therefore incompatible with the requirement that the public administration is to protect the freedom and dignity of individuals, even if one or more of those identified were to declare that they have no objection to the way in which they are de- B I L A G A 10 20 11 /12 :JO1 For the same reason their position in contemporary history is of no significance. complained to the Parliamentary Ombudsmen about the exhibition in its entirety. As has been shown, its basic message contained derogatory information about her. integrity has been violated in this way. With some justification she has in addition experienced the exhibi- tion as a punishment for what she has said and written, i.e. infringement of her freedom of expression. She did not participate voluntarily nor did the request her consent. She cannot be considered a public figure by virtue of her position or on any other grounds but must be regarded as a private individual. Nothing else has otherwise been disclosed that can justify the authoritys treatment of . The events themselves as well as the arguments presented by the in its defence to the Parliamentary Ombudsmen show that the authority lacks insight about the legal restrictions that apply to the provision of information by a public agency. This is serious not least when, as here, the individual bears the brunt. This adjudication is therefore being sent as information to the authority to which the is account- able. 2 011 /1 2:JO1 B I L A G A 10 An enquiry initiated by the Parliamentary Ombudsmen: Inspection of the Swedish Migration Boards removal centres Summary of the adjudication Foreigners who are not allowed to stay in or whose entitlement to remain in the country is not clear may be detained. They must as a rule live in special removal centres for which is respon- sible. An inspection of these facilities was initiated by the Parliamentary Om- budsman . The outcome is presented in this adjudica- tion. The general impression formed in the enquiry undertaken is that the work of the removal centres functions well. The enquiry also reveals, however, a number of problems and shortcomings that are in some respects serious. The treatment of detainees at the different removal centres is not uniform. This is probably due to the lack of central direction and the variation in rou- tines at the different centres. It is important that assumes greater responsibility for the work of the removal centres. is unable to provide reliable statistics. This makes it difficult to evaluate the work of the removal centres. The exceptional nature of their activities cannot excuse the shortcomings that exist. Periods of detention etc. The length of detention in cases dealt with by lie within acceptable parameters according to current legislation. The adjudi- cation nevertheless points out that deprivation of is the most stringent measure to which an individual may be subjected by a public authority. Coer- cion of this kind must be employed with great caution and only when it is entirely necessary. bears the overriding responsibility for en- suring that all cases involving detention are dealt with effectively. This in- cludes making sure that any deprivation of is as brief as possible. Some efforts are being made at removal centres to influence the length of detention periods. If these are to be successful, they must be undertaken in a well-thought out and organised . This is not always the case. Security placements in remand detention centres The Swedish Aliens Act provides a number of ways of dealing with a de- tainee who constitutes a safety risk. The enquiry shows that the Swedish Mi- B I L A G A 10 20 11 /12 :JO1 gration Board uses only the most stringent alternative which involves placing the detainee in a remand detention centre. It is wrong in principle to place a detainee together with individuals who are suspected of some crime. Placement in a remand detention centre also involves a much more palpable restriction of than placement in a re- moval centre. While the removal centres are characterised by a manifest am- bition to remain as open as possible and their activities and the expertise of their staff adapted to this aim, conditions in remand detention centres are in many respects the opposite. Detainees are obliged to spend most of each day in a cell. The risk that placement in a remand detention centre will lead to or exacerbate psychological problems is obvious. Criticism of is expressed for the introduction of routines which mean that the legislation on placement in criminal custodial facilities is applied erroneously. As this is considered to lead to the exposure of individual foreigners to more manifest restriction of their than would have been the case if the law had been applied correctly, this criticism is grave. Placement in remand detention centres because detainees are a danger to themselves regularly places detainees considered to consti- tute a danger to themselves in remand detention centres. The removal centres do not feel that they have the expertise and resources required to look after these individuals. Placement in a remand detention centre must, however, be viewed as particularly unsuitable for those whose state of mind means that they cannot be placed in a removal centre. There appears to be nobody who feels that the routine adopted is appropriate. That it is still used is no less regrettable than it is to be deplored. The procedure is considered to lack the necessary basis in law. On humani- tarian grounds and as a matter of principle it is manifestly unacceptable for sick individuals who are a danger to nobody but themselves to be placed alongside criminal suspects solely because they cannot be offered appropriate treatment in the Swedish Migration Boards own facilities. time this occurs the human rights of the detainees have been violated. As the account- able authority, merits very grave criticism for its continuation of this unsatisfactory situation. Transportation placements in criminal custodial facilities