frsrdg · H204JO1 · 2014-11-11 00:00:00 — –handläggningen av ett ärende om insats i form av ekonomiskt stöd enligt 9 § 2 LSS; fråga bl.a. om nämnden har kunnat avvisa ett överklagande där- för att nämnden ansett att den som klagade på ett beslut inte var behörig 10/11:417 –verkställande av kommunala beslut som inte vunnit laga kraft 10/11:563, 568, 574 –en myndighets skyldighet att ompröva ett beslut som överklagas 10/11:291 –”svartlistning” av offentliga biträden i utlänningsärenden 10/11:308 –tjänstetillsättningsärende; en myndighets skyldighet att rätta sig efter ett be- slut i en överinstans 10/11:275 –en myndighets skyldighet att rätta sig efter ett beslut i en överinstans m.m. 10/11:525 –företrädare för en myndighet har sökt påverka en part att återta ett överkla- gande 10/11:558 2 014 /1 5:JO1 B I L A G A 9 S A K R E G I S T E R T I L L J U S T I T I E O M B U D S M Ä N N E N S Ä M B T S B E R Ä T T E L S E 2014 /15 – publicering på Lantmäteriets webbplats har inte ansetts uppfylla kravet på underrättelse enligt 4 kap. 33 a § fastighetsbildningslagen 10/11:501 – en åklagares åtgärd att återkalla sitt överklagande när nya uppgifter kunde tyda på att utmätt straff var alltför strängt 11/12:135 – fråga om polisen bort verkställa en dom om att avliva en hund, då hundä- garens ombud uppgett att hon hade för avsikt att överklaga domen och sam- tidigt begära inhibition 11/12:161 – kritik mot Radiotjänst i för handläggningen av ett överklagande i ett ärende om radio- och TV-avgift 12/13:438 – kritik mot Lantmäteriet för bristfällig handläggning av en brevfråga och utebliven handläggning av ett överklagande 12/13:388 – kritik mot en socialnämnd som underlåtit att vidarebefordra ett överkla- gande till förvaltningsrätten därför att det överklagade beslutet enligt nämn- dens mening inte gick att överklaga 12/13:326 – kritik mot , som avvisat ett överklagande i ett anställningsärende med motiveringen att den sökande redan innehade en sådan tjänst som avsågs med det överklagade beslutet och att beslutet därför inte kunde anses ha gått honom emot. Tillämpning av 22 § förvaltningsla- gen 13/14:334 – kritik bl.a. mot en länsstyrelse för att den i egenskap av överinstans har överskridit sin behörighet i fråga om rättidsprövning 13/14:530 – samarbete mellan kommuner. – kritik mot en av ett överklagande – allvarlig kritik mot lagmannen vid för att han har hjälpt en part att skriva en inlaga till hovrätten 14/15:71 – allvarlig kritik mot en att överlämna två överklaganden, varav ett med en begäran om inhibition, till – allvarlig kritik mot som dröjt med att meddela obli- gatoriska omprövningsbeslut 14/15:169 – allvarlig kritik mot för bristfällig hantering av en be- gäran om handlingsutlämnande m.m. 14/15:358 – allvarlig kritik mot en med att överlämna ett över- klagande av ett beslut om omprövning av vård enligt LVU till förvaltnings- rätten 14/15:435 –allvarlig kritik mot , som inte rättat sig efter en dom i en överinstans 11/12:309 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 The Swedish Parliamentary Ombudsmen Report for the period 1 2013 to 30 2014 General information and statistics During the period covered by the report, the following have held office as Par- liamentary Ombudsmen: (Chief Parliamentary Ombudsman), , and . For a number of shorter periods the Deputy Ombudsmen and have dealt with and adjudicated on supervisory cases. During the working year, 7,312 new cases were registered with the Ombuds- men; 7,110 of them were complaints (previous working year: 6,872, an increase of 238, i.e. ), and 81 were cases initiated by the Ombudsmen themselves as inspections or on the basis of observations made during inspections, news- paper reports or on other grounds. Another 121 cases concerned new legisla- tion, where the Parliamentary Ombudsmen were given the opportunity to ex- press their opinion on government bills etc. 7,437 cases were concluded during the period, an increase of 369 (), of which 7,228 involved complaints, 85 were cases initiated by the Ombudsmen themselves and 124 cases concerned new legislation. It should be noted that the schedules overleaf show cases concluded during the period, not all cases lodged. This summary also comprises a selection of summaries of the cases dealt with by the Ombudsmen during the period. 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N Schedule of cases initiated by the Ombudsmen and concluded during the period 1 2013–30 2014 Freedom of expression, access to public documents T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 Schedule of complaint cases during the period 1 2013–30 2014 tion, control of lotteries, serving of pression, access to 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N Summaries of individual cases The following is a selection of summaries of cases dealt with by the Ombuds- men during the period. Public courts, etc. Criticism of three judges at District Court for a decision on inspection of a property (5904-2012) In a civil case the court decided to allow a plaintiff to conduct an inspection of a property belonging to the defendant and that the defendant had to grant the plaintiff access to the property. There are no grounds in law for the decision and the judges responsible for it are criticised. Criticism of a judge at District Court for the wording of two interim decisions in a case involving custody, where children are to live and contact rights as well as of the district court for failure to hear an interim application on contact rights during the summer (6163-2012) A case was being heard at the district court between two parents concerning custody of their child, who the child were to live with and the contact rights of one of the child’s parents. The judge in charge is criticised for •having made a decision on enforcement of a ruling about where the child was to live for which there were no grounds in law, •having made a decision on one of the parent’s contact rights that was so imprecise it was impossible to enforce, •having issued two decisions on accompanied contact without any time lim- its even though the law prescribes such limits, •having failed to procure an opinion from the social welfare authorities be- fore making the decision on accompanied contact, •having failed to include the grounds on which one of the decisions on ac- companied contact was made, •having issued an order prohibiting one of the parents from having contact with the child during a certain period for which there were no grounds in law, and •having made decisions on various detailed issues concerning the child for which there were no grounds in law. The district court is criticised for its failure to deal with an interlocutory request for contact rights during the summer submitted by one of the parents before the summer of 2012. Criticism of an assistant judge at District Court for the wording of two injunctions in a case concerning appointment of a guardian (6541-2012) In a case involving the provision of a guardian the district court enjoined to propose guardians. In two of these injunc- tions the district court wrote that the Principal Guardian could be nominated as T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 guardian if the board did not submit proposals. The first of these injunctions could be interpreted as meaning that the district court would be able to nomi- nate the principal guardian irrespective of his consent or not. It would, more- over, have been inappropriate to nominate the principal guardian as guardian because this could undermine confidence in the board’s supervisory function. The Parliamentary Ombudsman pointed out that for these reasons the injunc- tions were in breach of the requirements of objectivity laid down in the Instru- ment of Government. The assistant judge who had issued the injunctions was criticised. Complaint against the Chief Judge at District Court concerning the contents of two information publications sent to lawyers and others practising on (472-2013) The complained that the Chief Judge at Dis- trict Court, , had expressed a wish in two information publi- cations addressed to lawyers and others for certain changes in some of the court’s routines. These involved, for instance, setting dates for hearings and summonses, provision of the records of preliminary investigations by e-mail, sending “normal” post once a week and closure of the district court on certain days for operational planning. In the adjudication the Parliamentary Ombuds- man found that there were no grounds for criticising . Criticism of the Chief Judge at District Court for not altering the time of a preliminary hearing when the counsel booked by the plaintiff was engaged at another hearing (1141-2013) The plaintiff in a family court case had engaged a lawyer to act as counsel. The lawyer requested postponement of the time of a preliminary hearing as he had other commitments, but the district court rejected his request. The adjudication of the Parliamentary Ombudsman states that because of the plaintiff’s situation there were grounds for postponing the hearing. The judge is criticised for his decision. Criticism of a lay judge at District Court for use of a mobile phone while a hearing was taking place (2340-2013) A lay judge used a mobile telephone to send a text message during a main hearing. The Parliamentary Ombudsman’s adjudication states that judges must focus all their attention on the hearing itself and that it is not therefore compati- ble with the duties of a judge to undertake irrelevant activities during a hearing, such as sending text messages by telephone. In addition, someone who is in- volved in a trial can be adversely affected if judges use their telephones during hearings. criticism of the Chief Judge at District Court for having helped one party write a submission to a court of appeal (6796-2013) Appeal was made to the court of appeal about the decision of the district court to prohibit contact. The chief judge at the district court helped one of the parties to write a submission to the court of appeal. This means that the chief judge has 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N acted in breach of the regulations on objectivity and impartiality in the Instru- ment of Government. He was criticised severely. Cases involving prosecutors, and customs officers Criticism of the authority in for shortcomings in a preliminary investigation concerning suspicion of a planned bomb attack on the shopping mall Femmanhuset in (2978-2012) The authority in received information that a woman had overheard an unidentified man talking on a mobile phone about a bomb in “Femman” on Saturday. The concluded that this concerned a planned bomb attack on the mall. An enquiry was launched in which the security were also involved. This led to three men being suspected of making prepara- tions for a terrorist offence. All three were detained as the result of concerted intervention. After they had been questioned and their premises searched, they were all exonerated of the suspected crime. The Parliamentary Ombudsman established that there were shortcomings in the investigation that resulted in the three men being suspected. After question- ing a witness the concluded that the suspected telephone call had been made during a specific ten-minute period. This was the basis on which a call to a specific telephone was identified as suspicious and the three men singled out. The did not, however, attempt to corroborate the witness’s information against circumstances that could be verified objectively, which would have in- dicated that the ten-minute period specified was probably the wrong one. The also seem to have underestimated the combined impact of shortcomings in other aspects of the investigation. It was these shortcomings in the investi- gation that probably resulted in three innocent individuals being deprived of their and the exposure of their families to coercive actions in their homes. There are grounds therefore for viewing this gravely. The au- thority is criticised for these shortcomings. In addition to the shortcomings in the preliminary investigation, the Parlia- mentary Ombudsman also determined that the gained unlawful access to a witness’s home through force when detaining him for questioning, for which the commander of the unit is criticised. The Parliamentary Om- budsman also criticises a prosecutor for failing to make a decision on whether the suspects were to have access to defence counsel when they were questioned. Criticism of a regional public prosecution office for the lack of possibility for the to make contact with an on-call prosecutor (4865-2012) officers have repeatedly encountered problems in making contact with an on-call prosecutor by phone. For several years the regional public prosecu- tion office has failed to remedy this problem, for which it is criticised. As lack of availability means that statutory provisions that are important for individu- als’ legal rights may be jeopardised, the Parliamentary Ombudsman takes a grave view of these shortcomings. T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 Information about rights and the implications of enforcement for detainees in custody (2572-2013) The Parliamentary Ombudsman has investigated when and how detainees in custody are informed about their rights and the implications of the mea- sure to which they are subject. This enquiry has revealed that about half of the authorities provide the information sheet issued by and the Office of the Prosecutor General (for those suspected of crimes and therefore deprived of their ) when detention begins. Routines at other authorities vary and are in some cases inadequate. It became clear, for instance, that in many cases it is unclear who is responsible for providing this information. As far as can be seen, there is no particular procedure for informing individuals who have been detained for other reasons than suspicion of a crime. The adjudication stresses that deprivation of is a serious encroach- ment of the freedom of an individual and that it is extremely important for those detained to be informed of their rights. This is, for instance, a prerequisite if these rights are to be asserted. On 1 2014 new regulations were included in the Edict on Preliminary Investigations about information for individuals suspected of crimes. This information is to be presented in a language under- stood by the detainees and, for those who have been arrested and taken into custody, in writing. The detainee is to have access to this information for the entire period of detention. In the opinion of the Parliamentary Ombudsman written information should also be provided for those who have been detained for other reasons than sus- picion of a crime and, of course, in a language that the detainee understands. All the information should also be expressed clearly and explicitly in a way that is easily understood. If the necessity arises, it should be supplemented by oral information. The adjudication also points out the importance of providing information about rights as soon as possible after detention begins: this should not be later than when the detainee is taken into custody. In the Parliamentary Ombudsman’s opinion it is important for to ensure that routines are introduced by the authorities that mean that detainees will be provided with information to safeguard their legal rights. has announced its intention of producing new directives for custody with regulations on when and how detainees are to be informed of their rights. In view of the fact that these are fundamental rights it is important for this to be undertaken without delay. A new directive and improved routines, together with the new provisions in the Edict on Pre- liminary Investigations, should result in improvement in the way detainees re- ceive this information. 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N Criticism of the authorities for the lack of possibilities of outdoor exercise for detainees in custody (2054-2013) The Parliamentary Ombudsman has enquired into the possibility of outdoor exercise for detainees in custody. The Detention Act lays down that de- tainees are to be provided with the possibility of spending at least one hour a day outdoors unless there are extraordinary grounds for not doing so. This enquiry has revealed that there are manifest shortcomings in this re- spect when it comes to access to outdoor facilities and the design of the exercise yards. It has for instance transpired that not all custody facilities have exercise yards and that at a few custody facilities the possibilities of periods outdoors are dependent on the staffing level. The adjudication stresses that in normal cases the right to outdoor exercise is an unconditional entitlement that has to be provided by the authority. It is therefore important for all authorities to ensure that this is arranged without delay. It has also become clear that at several custody facilities there are no routines about how detainees are to be informed of their right to outdoor exer- cise. In the facilities where there are such routines they are, in many cases, inadequate. It is, for instance, unclear who is responsible for providing this in- formation. The adjudication stresses the importance of informing detainees about their right to outdoor exercise so that they have a possibility of availing themselves of it. has announced its intention of producing a new directive for custody which will include regulations on informing de- tainees of their possibilities of daily outdoor exercise. The adjudication points out that in view of the inadequate routines that the enquiry has revealed, it is important that such a directive takes force without delay. Criticism of the authority in for its management of a request for judicial assistance in a case involving the Care of (Special Provisions) Act (273-2013) The social services requested judicial assistance from the authority in a case involving the Care of (Special Provisions) Act. This assis- tance was required for the placement of a 19-year-old girl in a secure children’s home. In the view of the social services this placement needed to take place without delay and with the assistance of the . Even though the formal requirements for judicial assistance were fulfilled, initially the authority rejected the request. Instead it laid down conditions for its participation, which ultimately led to the placement of the girl two days later than necessary. The adjudication states that it is not for the authority to decide on the need of judicial assistance that has been requested. When the formal require- ments are in place, the authority cannot lay down conditions for its ap- proval and provision of the assistance. The authority is criticised for its management of the case. T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N B I L A G A 1 0 2 014 /1 5:JO1 Criticism of the authority in the county of for seizure of property in connection with an intervention etc. (584-2013 and 666-2013) A driver stopped by the for speeding was also suspected of a minor drugs offence. In order to locate the drugs a search of the car was undertaken during which a large amount of cash was discovered in a bag that the driver claimed belonged to the woman he was living with. The contacted the Enforce- ment Authority and provided this information, which was subject to secrecy. The Enforcement Authority decided to attach the cash for a debt incurred by the driver and issued a “distance” attachment order prohibiting the au- thority from giving the money to anyone other than the Enforcement Authority. A “prohibition order” issued by the Enforcement Authority does not give the power to seize attached property. In order for the to have the right to seize attached property on behalf of the Enforcement Authority by vir- tue of an attachment order, the property must have been confiscated pursuant, for instance, to the provisions on confiscation. The are criticised for hav- ing seized the cash without any grounds in law. Section 27 of Chapter 10 of the Public Access to Information and Secrecy Act stipulates that information subject to secrecy can only be provided to an authority if it is obvious that the benefit of providing the information outweighs the interests that secrecy is intended to protect. The authority is criticised for not any record or being able subsequently to show in any detail what information was provided to the Enforcement Authority and whether be- fore doing so there was any consideration of the interests at stake of the kind required by this provision. Complaint against the authority in the county of about a posting on Facebook (5875-2012) The Parliamentary Ombudsmen have reviewed a number of postings made on the authority’s Facebook page. These postings are in themselves relevant in terms of participation in the social media: they contain messages in- tended to prevent crime or information about the work of the . The con- tents of several postings mean however that their objectivity can be questioned. They are characterised at times by a jocular tone that is somewhat inappropriate for a representative of the . It is also possible to discuss to what extent descriptions of individuals in vulnerable situations can at all be regarded as suitable subjects for postings in the social media. In addition the basis for those representing the in the social media should involve caution about expressing personal feelings about their duties. The adjudication states that there are regulations about participation in the social media which, if complied with, should be adequate to ensure that no postings are made that will jeopardise confidence in the objectivity and im- partiality of the or are otherwise inappropriate. Complaint against the authority in the county of about a tweet (6153-2012) The Parliamentary Ombudsman has reviewed a tweet made by the on their Twitter account. This expresses disappointment that two celebrities spoke 2 014 /1 5:JO1 B I L A G A 10 T H E S W E D I S H P A R L I A M E N T A R Y O M B U D S M E N in positive terms in a television programme about taking drugs. of the tweet did not, in the opinion of the Parliamentary Ombudsman, contain any inappropriate features and there are no grounds for assuming that the aim of the tweet was anything but the prevention of crime. The adjudication states that there are regulations about participation in the social media which, if complied with, should be adequate to ensure that no postings are made that will jeopardise confidence in the objectivity and im- partiality of the or are otherwise inappropriate. Criticism against certain authorities about the length of time taken to deal with cases relating to gun licenses (5529-2013) During 2013 a relatively large number of complaints were made to the Parlia- mentary Ombudsmen about the time taken by the to deal with cases re- lating to gun licenses. The Parliamentary Ombudsman asked the Na- tional to acquire information from the authorities so that it could provide a report on the time taken to deal with such cases and present an assessment of the situation. The review undertaken by showed that there was a wide variation in the time it took for different authorities to deal with licenses for hunting weapons and target shooting weapons. taken in such cases by all the authorities in was about 40 days Some authorities took an average of about 20 days while others could take about 80 days. On the whole it took longer to deal with li-