frsrdg · GZ04JO1 · 2011-11-16 00:00:00 — Article 7 lays down the right of for longer than three months on certain specified conditions, for instance that the union citizen has a job in the country in which he or she is residing. According to the Free Movement Directive, the right of can only be restricted on the grounds of threat to public order, public security or public health. The provisions about this can be found in Article 27, which lays down the following. Measures taken on the grounds of public policy or security shall comply with the principle of proportionality and shall be based exclu- sively on the personal conduct of the individual, which must represent a suffi- ciently serious threat to fundamental interests of society. Previous criminal convictions shall not in themselves constitute grounds for restricting the right of . Justifications that are isolated from the particulars of a case or that rely on considerations of general prevention shall not be accepted. An additional limitation is provided by the provision that restrictions of the right of may not be discriminatory. In this context Court of has ruled that a may not take measures against a citi- zen of another by virtue of the derogations provided for public B I L A G A 10 20 11 /12 :JO1 policy [] on the grounds of conduct that the does not attempt to prevent in the case of its own citizens by adopting repressive or other ac- tual and effective measures (Case C-100/01, Ministre de l'Intérieur v. , 2002 I-10981). As a result of the Free Movement Directive certain amendments were made to the Swedish legislation on foreigners. The regulations on right of pursuant to Article 6 gave rise to no amendments of the law (SOU 2005:49 p. 95 ff. and Govt. 2005/06:77 p. 68 ff.). of pursuant to Article 7 was on the other hand regu- lated in a new chapter of the Aliens Act (Govt. 70 ff. and p. In this connection a more restricted right of comparable with the Freedom of Movement Directive was introduced into Swedish legislation. This means that right of in the Aliens Act refers to the kind of right of laid down in Article 7, i.e. right of for a longer period than three months but not to the immediate right of pursuant to Article 6. A new regulation was included in the second paragraph of Section 3 of Chapter 8 of the Aliens Act stipulating that those who have right of may not be refused entry. This provision refers to right of in the meaning of the Aliens Act. In addition EU citizens were exempted from ap- plication of Item 1 in the first paragraph of Section 2 of Chapter 8 of the Aliens Act (i.e. that an individual lacks adequate funds for a stay in etc.) provided that after entry he or she does not prove to be a burden to the social assistance system under the Act (third paragraph of Section 2 of Chapter 8). With regard to the remaining grounds for refusal of entry in the first paragraph of Section 2 of Chapter 8 of the Aliens Act, it was said in connection with the implementation of the Free Movement Directive that it is the foreigners own conduct and not considerations of general pre- vention on which decisions to refuse entry are to be based. This was consid- ered compatible with Article 27 in the Free Movement Directive and there- fore no legislative amendments were felt to be necessary (Govt. 2005/06:77 p. 77 f. and SOU 2005:49 p. 148 ff.). There are a number of elements in the measures under review that could be questioned. My adjudication concentrates, however, on the main issue, which is the legality of the decisions to refuse entry clearance. All the other events are overshadowed by this issue or are consequences of these decisions. If a foreigner is to be refused entry to the general provisions in the Aliens Act on refusal of entry must provide support for the measure. In addi- tion it is necessary for the specific regulations in the Aliens Act, which apply 2 011 /1 2:JO1 B I L A G A 10 for instance to EU citizens, not to bar application of the general provisions. Finally, the measure must be compatible with the kinds of EU regulations that otherwise have to be taken into account, for instance within the framework of interpretation of Swedish legislation or because they have what is called di- rect effect. The question of whether the decisions to refuse entry clearance in this case were lawful must, in the first hand, be determined according to the general provisions in the Aliens Act on refusal of entry. The authority has justified its decision to refuse entry clearance by saying that those involved had devoted their time to vagrancy/begging and the statute invoked was Item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act, which provides, among other things, that entry may be refused if it can be assumed that during a stay in a foreigner will not support himself or herself by honest means. The requirement of being able to support himself of herself by honest means If a foreigner is to be refused entry into , some legal basis is required. For someone already in the country in particular, refusal of entry clearance involves far-reaching coercive intervention. Measures of this kind should not be allowed to take place unless justified by reasons that are clearly expressed in the wording of the legislation. It is against this background that the grounds for refusing entry clearance in Item 2 of the first paragraph of Section 2 of Chapter 8 of the Aliens Act invoked by the authority are to be inter- preted. As my account of the legal regulations shows, since 1954 there have been no legal grounds in for refusing entry to what were then called gyp- sies, nor street musicians. At this time begging also disappeared as an explicit ground for refusal of entry, upon which the travaux préliminaires left scope, however, to refuse entry to those who manifestly intended to earn their liveli- hood through seeking alms, i.e. In addition to this there were the regulations described on vagrancy, which meant that in practice vagrancy was placed on the same footing as criminality. The description of the legal regulations also shows that when the issue was studied in the 1970s, the ground for refusing entry cited had been used ex- tremely rarely and then seldom or never with reference to foreigners who could take up begging. In connection with the ensuing deliberations on whether the provision was needed, it was for other reasons, as has been shown, that it was allowed to remain. As far as has been seen, since 1954 there have been no legal sources to indicate that the regulation was meant to apply to those who could be assumed likely to take up begging during their stay in . To this it should be added that the legal point of view that found expres- sion in legislation on vagrancy and the provisions of earlier laws on begging has for a long time been obsolete. Subsequent developments in the area of freedoms and rights have given rise to increasingly stringent requirements of B I L A G A 10 20 11 /12 :JO1 legality and the rule of law. Nowadays it must be considered out of the ques- tion to base infringements of freedoms and rights on judicial interpretations that require public authorities and courts of law to make discretionary moral judgements. To the extent that earlier laws sometimes nevertheless provide such scope, they must for the sake of legality be interpreted restrictively. The wording of the statute invoked here should therefore not be applied today to any other means of earning a living than those forbidden by law. If it is the intention of the legislators that other forms of earning a living are to provide grounds for refusing entry, it is incumbent on them to stipulate in the statutes what in that case is to apply. Begging asking for financial support without offering anything in return is not punishable or even forbidden by Swedish law. This applies even when it is undertaken in forms that could be described as organised, if that is taken to mean that individuals who beg coordinate their activities and also live and together. In combination with other circumstances, on the other hand, begging can be punishable. This is the case, for instance, when a beggar invokes threats or physical contact, which constitutes molestation according to Section 7 of Chapter 4 of the Penal Code. Another example is if begging involves decep- tion of those approached, for instance simulating a supposed handicap etc., which in certain other circumstances may involve the crime of fraud accord- ing to Chapter 9 of the Penal Code. To provide a ground for refusing entry clearance pursuant to the Aliens Act, what is required in addition is that the begging undertaken in a criminal is undertaken or can be assumed to be undertaken to such an extent that it forms a means of livelihood. Adjudication in this case In none of the decisions to refuse entry clearance is there information to sug- gest that the individuals concerned supported themselves in a way that was criminal. It was admittedly observed that some of the beggars simulated handicaps. This information is, however, vague and not linked directly to any of the individuals refused entry clearance, and even less cited as ground for the decision. In addition, despite the relatively extensive surveillance and questioning, there is nothing to support the claim that those refused entry clearance were organised in the kind of way that would enable the entire operation to be described as deceptive or unlawful. The investigation undertaken by the authority can be summed up as revealing no more than that some of those refused entry clearance had spent time begging and it could be assumed they would continue to do so. In the case of several of them, however, not even this has been proved: they state that they have supported themselves as street musicians. Therefore what has come to light in the investigation is not what is required to allow refusal of entry pursuant to the provision invoked. The in- vestigation lacks material to show that there could have been any other lawful ground for refusing entry. For this reason, the refusal of entry clearance to the group of living in the apartment in does not have the necessary 2 011 /1 2:JO1 B I L A G A 10 support in law. The County Authority therefore merits criticism. As the actions of the authority involved far-reaching in- fringements of the legal rights of individuals, this criticism is grave. There is nothing in the material to show that the decisions to refuse entry clearance were based on the fact that all those involved were and that they were therefore negatively discriminated. Nevertheless, several elements in the way in which the case was dealt with are remarkable. This applies to the inadequate analysis of current law and the shortcomings in the records, as well as the collective reason given for the decision vagrancy/begging that recalls an obsolete view of the law and of humanity. Even though what oc- curred cannot be described as the outcome of discrimination, the unlawful decisions to refuse entry clearance and the way in which the operation was conducted were liable to shake confidence in the ability of the to live up to the constitutional requirement that in their work they shall pay regard to the equality of all before the law and shall observe objectivity and impartiality (Article 9 of Chapter 1 of the Instrument of Government). One conclusion from the enquiry that has been made is that the general regu- lations in the Aliens Act do not permit refusal of entry solely on the ground of an assumption that a foreigner will beg in . The question of whether the refusal of entry clearance was compatible with the special regulations that apply to EU citizens was therefore never raised in this case. In view of the debate that has taken place about foreign beggars I would still like to point out that EU law as can be discerned from the account of the legal provisions poses obstacles to the refusal of entry clearance to an EU citizen solely on the ground that it can be assumed that he or she will beg in . This obstacle would remain, even if national legislation were to be amended, for instance by laying down that begging is an explicit ground for refusing entry. In other words, it would probably be difficult to formulate legislation on foreigners to enable EU citizens who devote them- selves to begging of the kind demonstrated in this case to be refused entry to the country. B I L A G A 10 20 11 /12 :JO1 Criticism of the and its exhibition Middag med [with ] (Decision of the Parliamentary Ombudsman . Axberger, reg. 5127-2009 and 21-2010) Summary of the adjudication , which is a public authority with the task of pro- information about crimes against humanity, wanted to use exhibition material to show how ideological opinions could prevent people from per- ceiving reality correctly. Here one element was the production of a film to advertise the exhibition. It uses four individuals who are easy to identify because of the contexts as warning examples. This presentation held them up to ridicule. In the exhibition individuals were also used as warning examples. One of them has complained about this to the Parliamentary Ombudsmen. The adju- dication lays down that the exhibition was intended to expose the complainant to the scorn of other people. This was not justifiable. In support of its actions the has referred to its mis- sion and offered arguments that invoke the freedom of journalists and re- searchers. For this reason it is pointed out in the adjudication that government agencies must comply with constitutional provisions and do not have the same freedom of expression as individuals. is criticised for both the film and for the viola- tion of integrity the complainant was subjected to. lacked under- standing of the legal restrictions that apply to a public authority. Information about the adjudication was therefore forwarded to the government agency to which the authority is accountable. is a public authority that was founded on 1 2003. Its mission is to function as a national forum to promote democracy, tolerance and human rights using the Holocaust as its point of departure. At the behest of the Government, in the authority launched a project on the crimes against humanity of communist regimes. This task included surveying and compiling the research in this area and, if necessary, initiating additional research. This was to be an outreach project with seminars, educational initiatives and exhibitions all over . Within the framework of the project the authority organised an exhibition Middag med utställning om ideologiska skygglappar och selektivt seende [with exhibition on ideological blinkers and selective vision]. The exhibition opened on . In the exhibition the question is posed of how it happened that Swedes who supported and the Red Khmers were unable to see the mass mur- ders that were being committed. A visit to (today ) made by a delegation from in 2 011 /1 2:JO1 B I L A G A 10 1978 was featured. with alludes to an event that the delegation was purportedly invited to attend. In connection with the exhibition a film was produced which is described on the web-site as a commercial, Mao-glasögonen [spectacles]. This film was intended by the authority to illustrate how our expectations alter what we see. It contains references to the 1978 visit and two Swedish participants are identified by name. The exhibition was presented not only on the web-site but also in a printed folder, of which the front page was mainly occupied by thirty or so pictures of inmates in a notorious prison, S-21. The folder contains a group photograph of the participants of the delegation referred to with all their names. Complaints about the were submitted to the Parliamen- tary Ombudsmen, first by and then by . , who as far as it can be seen, did not himself figure in the exhibition or the film, asked the Parliamentary Ombudsmen to investigate whether the way in which the had in its film attacked named individuals for purported support for genocidal actions was compatible with current legislation and good public administrative practice. He also re- quested appraisal of whether the agencys way of dealing with historical re- cords could be considered to comply with the impartiality and objectivity normally required of government agencies. He referred here to the erroneous information given by the Living History Forum about the provenance of the images used in the agencys publications. , who took part in the visit to in 1978, submit- ted a complaint about the exhibition which consisted, on the whole, of the following. She figured in the exhibition in two photographs and a posed image in which she was mocked. She was quoted twice and named in several places. In the exhibition she was linked in words and images to mass murder. Links of this kind may be made in discussions between citizens but are indefensible in the case of a public authority in the exercise of its powers. The exhibition has been organised is such a way that for her it could only result in the contempt of her fellow-beings. also submitted the following information. The exhibition took place in central and admission was free. It was then intended to tour the country. Information about the exhibition had been circulated widely through the agencys website, the film, a folder and advertisements in newspapers. She also stated that in a conversation with representatives of the she had consented to the exhibitions use of a photograph she had taken and also of a quotation of her words. This consent had, however, been given before the context in which she was to be presented had been made clear to her. It was not, therefore, informed consent. B I L A G A 10 20 11 /12 :JO1 declared that she had given a number of lectures about her visit and written several articles about it. After citing a number of funda- mental provisions about freedom of the press and of expression she wrote: I consider that the authority has violated my freedom of expression and freedom of the press in arranging the exhibition with . The entire exhibition functions as a punishment for what I have said and written on the subject of the Red Khmers in . was requested to express its opinion of the sub- stance of the complaints. Through its superintendent, , the au- thority submitted the following on the subject of complaint. The authority had a film made to advertise its exhibi- tion with . A complaint has been made about this film to the Parliamentary Ombudsmen by the author/graduate student . The arguments below follow the order in which they can be found in document. The question of identification of individuals by name The exhibition deals with ideological blinkers and selective vision. As the film is intended to reflect the exhibition as a whole, it also focuses on ideo- logical blinkers and selective vision. These characteristics are not criminal. Nowhere in the film or in the exhibition is it claimed that this is the case. The reason for identifying individuals is to provide concrete examples of these blinkers and selective vision on the basis of a visit made by a delegation to what was then , a visit that had been made public in various ways through the media and the delegations own efforts in the form of films, arti- The two identified are not anonymous private individuals. One is , for decades one of the most widely known participants in public debate in . Time and again, in books, articles and debates, has ex- pressed his opinions on /. He has publicly supported and the Red Khmers, even though they are responsible for the loss of an estimated total of at least 1.5 million lives in in the 1970s. Today no serious researcher or historian would deny what took place in at this time. Not to allow an institution like the within the framework of the instructions given to it by the Government to provide in- formation about the crimes against humanity committed by communist re- gimes to refer to public assertions and actions would be remark- able. What instead characterises a democracy is that those involved in public debate also have to allow their statements to be subjected to critical review. Review of this kind falls within the framework of the task of the Living His- tory Forum to provide information and to promote democracy, tolerance, and human rights. is included in the exhibition, which deals largely with him, at his own explicit request. Today he has a diametrically opposed view of his propaganda visit to in 1978. His work now focuses on asking the people of and illustrating the problem of ideo- logical blinkers. Conclusion: both and are public figures who have actively chosen to debate in public. Neither of them is 2 011 /1 2:JO1 B I L A G A 10 accused of criminality in the film. Insofar as or are accused of anything reprehensible, it must be con- sidered justifiable to supply the information in question in view of past and current public interest in the issue. We therefore see no justification for re- stricting the right of museums and other state cultural institutions to exhibit history, even if this results in the discomfiture of specific individuals. The question of how the historical records were dealt with All museums and other organisations that work with history have to contend with the problem that certain data may, however scrupulously controlled, sometimes be erroneous. The claim that errors of this kind constitute short- comings in the impartiality and objectivity that can be required of public authorities is an unreasonable one in view of the nature of the material and the task of casting light on disputed and controversial subjects. In practice it is impossible in undertaking tasks of this kind to completely exclude the possi- bility of erroneous or dubious information. The important question is, instead, how the discovery of such errors is dealt with. What is fundamental is that they should be acknowledged. Then they have to be rectified. draws attention to errors in its lists of errata and these are corrected in subsequent editions. With regard to the errors in the fact sheet Crimes against humanity under communist regimes commented on by the complainant, it is correct that the work contained a few errors. These were removed from the revised version printed at the beginning of 2009. Information about these errors was also provided in a list of errata linked to the material on our web-site. Just as the complainant alleges, in the film advertising the exhibition with , we used an incorrect picture. The image depicts undernourished children in in the 1970s but was taken after the invasion by Viet- nam. When this error was disclosed we immediately added the following information to our web-site: We have used an incorrect archive picture in the film. The picture depict- ing two starving children was taken after had invaded the coun- try. The childrens hunger cannot therefore be traced to the reign of terror of the Red Khmers. The authority also accounted for further corrections and other measures re- sulting from errors or obscurities in its material. With regard to complaint the following was included. figures in the exhibition with two quotations and in two photo- graphs. The two quotations have previously been published in two separate books. The first photograph was taken when the delegation was grouped in front of a palace and figured on the back cover of the book published by the delegation after its journey. The second photograph depicts three of the four Swedes together with four other individuals, one of them a member of Cam- bodias Ministry for Foreign Affairs. The pictures come from the Documenta- tion . What is described by in her complaint as a posed image in which she is mocked is a recent arranged photograph of actors taken in pre- B I L A G A 10 20 11 /12 :JO1