frsrdg · H304JO1 · 2015-11-06 00:00:00 — The region and the Prison and ’s Head Office have also failed in their inspections of the prison’s case processing and in their responsibility to ensure that the staff have the competence required for the job. The extent of the errors and deficiencies identified have resulted in serious criticism being directed at the Prison and . The decision also contains a statement re- garding what is to be considered an acceptable processing time in misconduct cases, as well as a statement regarding the lack of uniform procedures for how cases with a lengthy processing time are to be handled. Criticism of the Swedish Prison and , Salberga Prison, as a result of inmates who have chosen to hold a religious service having been directed to a residential unit, etc. (222-2015) For security reasons, the Swedish Prison and , Salberga Prison, directed a number of inmates to hold a religious service in a residential unit. The unit also housed inmates who did not wish to participate in the ser- vice. The Chief Parliamentary Ombudsman’s decision expresses an under- standing that those inmates who did not want to participate in the service felt that they did not have any choice but to be in their rooms during the service. The conducting of the service has therefore entailed a restriction for those in- mates who chose not to participate. The public has an obligation to respect an individual’s choice to practice religion as well as to refrain from doing so. Fur- thermore, religious belief is a private matter that no-one should be compelled to present to others against their will. In light of this, the Chief Parliamentary Ombudsman finds it to be inappropriate to conduct a religious service in a locked residential unit where there are inmates who do not wish to partic- ipate. The prison has received criticism for its actions. The decision also un- derlines that, for the inmates, the opportunity to participate in a religious ser- vice in a multi-faith room can represent an important element in reducing the 2 015 /1 6: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 negative consequences of the deprivation of . vices in a multi-faith room as opposed to a production unit is also an important part in treating the inmates with respect. Moreover, such an arrangement – un- like when a service is conducted at a residential unit or directly adjacent to it – means that the inmates participating in a religious service do not need to dis- close their faith to other inmates. According to the Chief Parliamentary Om- budsman, this means that, if a prison has a multi-faith room, religious services should only be held elsewhere in the prison in exceptional cases. also criticises the Swedish Prison and , Salberga Prison, for having organised the operations in such a way that visitors have been able to access sensitive personal information about the inmates. This was not the prison’s intention. Report regarding the ’s decision to introduce a “whistle-blower” function (2242-2014) () has introduced a “whis- tle-blower” function. The function provides both FMV employees and its cus- tomers with the opportunity to report any suspicions they may have in respect of serious irregularities concerned with the Administration’s activities. In a complaint made to the Parliamentary Ombudsman (JO) it has been claimed that the whistle-blower function contravenes the freedom of information that is pro- tected by the Swedish constitution, and that it is therefore contrary to the open approach adopted within the Administration. Furthermore, the report claimed that FMV promised anonymity for whistle-blowers. For this reason, the com- plainant has requested that JO should investigate whether the introduction of such a function is consistent with applicable laws, and whether it is possible for FMV to uphold its promises of anonymity. The Chief Parliamentary Ombuds- man states in her decision that the design of the FMV whistle-blower function makes it clear that the intention is not to compete with the freedom of infor- mation that is protected by the Swedish constitution. It is, rather, a matter of supplementing this freedom, and in principle the Chief Parliamentary Ombuds- man has no objections to an authority introducing such a function. The FMV whistle-blower function has been examined and there have been no situations where the Administration has promised anonymity to the party reporting the information. Instead, the Chief Parliamentary Ombudsman notes that FMV has made it clear that the reports are treated as public documents, and that reporting parties wishing to remain anonymous may refrain from providing their personal details. has therefore been clear in respect of the actions to be taken by those wishing to remain anonymous. The report also submits ob- servations that FMV engaged an outside company to receive the reports and anonymise them, and in respect of the design of the Administration’s policy documents. Apart from a minor observation regarding the design of the policy document, the Chief Parliamentary Ombudsman has no opinion with regard to the in which FMV has chosen to design its whistle-blower function. 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 2 015 /1 6:JO1 Serious criticism of the Swedish Armed Forces for not having executed a decision from (3803-2014) An applicant who had not been accepted for training in the Armed Forces ap- pealed the decision to . In connection with the processing of the appeal, the Board requested that the Armed Forces supple- ment the case with the data which it had at its disposal when the decision was made. For reasons of confidentiality, the Armed Forces chose not to submit the requested documents. examined the case and found that the appel- lant should have been offered the training place for which he/she applied. subsequently passed the case on to the Armed Forces for them to take the necessary measures. Instead of offering the applicant a place on the training course, the Armed Forces chose to place the person on the application list for the following year’s training. In a re-examination, the Armed Forces then stated that the applicant did not satisfy the required profile and therefore could not be offered a training place. When a case is examined at , the reviewing body puts itself in the position of the decision- making authority. When an appeal is granted, the principal rule is that the au- thority appealed against issues a positive correction, i.e., it communicates a de- cision, the content of which is what should have been communicated from the start. For a decision made by a superior instance to have the intended effect, the lower instance must dutifully apply the decision. In the opinion of the Par- liamentary Ombudsman, this meant that the Armed Forces, without re-exam- ining the application, should have offered the applicant a place on the training course as soon as the opportunity to do so arose. By not doing so, the Armed Forces ignored a fundamental principle of administrative law, and for this they are seriously criticised. Criticism of the Administrative Court in for its actions in connection with the dispatch of a decision in a case of immediate forced custody in accordance with the Care of Abusers (Special Provisions) Act (LVM) (6067-2013) A court decided that a person admitted for care in an “LVM home” should be released immediately. The court informed the LVM home by fax at 17.05. However, the LVM home first became aware of the faxed message at 07.55 the following day. The internee was therefore detained for 15 hours too long. The court is criticised for not having attempted to inform the LVM home by tele- phone. Criticism of a judge at the Administrative Court in for the slow processing of a case concerning the application of the Prisons Act (2010:610) A person who was an inmate in a penal institution was to be conditionally re- leased on 27 2014. The Swedish Prison and had rejected 2 015 /1 6: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 his application for expanded release, and he appealed the rejection to the Ad- The case arrived in the Court on 10 February 2014 and was not settled until 25 of the same year. The judge responsible is criticised. Criticism to Fastighets arbetslöshetskassa [an unemployment benefit office] for slow processing and the lack of justification for a decision made in a case regarding unemployment benefits (6945-2013) Fastighets arbetslöshetskassa rejected an application from L.H. for unemploy- ment benefits, with the justification that she had not submitted the requested documents showing that she fulfilled the requirements to qualify for compen- sation. The unemployment benefit office referred to a section of law that regu- lates the formal requirements for an application. JO notes that the wording of the justification makes it difficult to understand whether an actual assessment of the case has been made, and that the fundamental requirements for a decision justification have therefore not been met. JO is also of the opinion that the pro- cessing time was too long. appealed the decision of the unemployment benefit office. After submitting supplementary documents, she was told that Fastighets arbetslöshetskassa would change their decision and that they would refer the case back to the benefits officer for a new assessment. Around five months after the appeal had been received, the office made a final decision in the case. JO states that it is unacceptable to have such a long processing period in an appeals case. Furthermore, the decision also calls to mind the fact that JO has previously stated that a case cannot be referred back within the unemploy- ment benefit office, and that the reassessment should not be divided into dif- ferent stages. Complaint against the Agents Inspectorate regarding the agency’s case management, etc. (6576-2014) The case addresses the Agents Inspectorate’s record , firstly in the register of real estate agents and secondly in the agency’s official register. An estate agent has reported the Agents Inspectorate for not deleting or adjusting information in the agency’s register and disclosing inaccurate information about him. The Chief Parliamentary Ombudsman’s de- cision notes that both registers are kept for different purposes and that this in- fluences the information contained in the registers and how long this infor- mation is retained. Unlike the register of real estate agents, there is no specific provision regarding the sorting out of the Agents Inspectorate’s official register. Instead, it is the Archives Act and the Archives Ordinance that govern the agency’s opportunity to delete public documents. According to the Archives Ordinance, the National Archives [] issues directions re- garding the sorting out of documents. The directions that the National Archives have issued regarding the Agents Inspectorate state inter alia that, in regulatory cases, only certain register excerpts, documents of no signif- icance for the assessment and appeal instructions may be deleted. In light of this, the Chief Parliamentary Ombudsman states that she finds no reason to 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 2 015 /1 6:JO1 state any opinions about the Agents Inspectorate’s record keep- ing and the fact that the agency, in accordance with the provisions of the Swe- dish Freedom of the Press Act, disclosed an excerpt from its register. The Chief Parliamentary Ombudsman is of the same opinion as the Agents Inspectorate regarding the unfortunate incident where the disclosed reg- ister excerpt led to inaccurate information on the estate agent being published in an article. According to the Chief Parliamentary Ombudsman, the Agents Inspectorate cannot be blamed for this. Criticism of processing times in permit cases and for failing to observe constitutional requirements when prioritising on-line applications (5497-2013) Following several complaints, JO initiated an audit of ’s processing times in respect of applications for permits due to family connection and work, and for permit cards, for the period 2011-2013. The audit also addressed the differences in processing times be- tween on-line and paper applications, and between applications for work per- mits from certified employers and others. It emerged from the audit that the processing times are, in many cases, unreasonably long, and that they regularly exceed the constitutionally-regulated limits by some distance. The Swedish Mi- gration Board has stated that the long processing times have primarily been caused by the number of asylum seekers having massively exceeded the num- ber forecast. However, based on the information presented by the Board, it is difficult to see how this alone can explain the long processing times. Further- more, the information provided by the Board suggests that they have prioritised simple cases at the expense of more extensive or complicated cases in a that is unacceptable. is criticised for its long processing times and for the fact that constitutionally-regulated time limits are regularly exceeded. The audit also shows that, for several different types of cases, there is a considerable difference in the processing time for on-line ap- plications and paper applications. has stated that, in order to encour- age people to apply on-line, it has chosen, in cases where the applications are otherwise identical, to prioritise on-line applications ahead of paper applica- tions. This procedure is deemed inconsistent with the equality and objectivity principles found within the Swedish constitution. is criticised for this. However, the case data gives no reason to criticise the system in respect of certified employers. It does however raise several ques- tions that may need to be addressed in another context. There is reason to be- lieve that the processing times have increased still further since the audit pe- riod. Developments in this area are therefore to be closely monitored. During 2015 JO will be visiting and its management in order to establish a detailed and current picture of the Board’s processing times, its priorities and its procedures. 2 015 /1 6: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 in respect of deficient service and accessibility, and regarding an incorrect decision (3549-2013) During 2013 JO received an unusually high number of complaints concerning deficiencies with regard to ’s service and acces- sibility. The decision addresses one of the complaints and the general opportu- nities that the general public have for contacting the Board via telephone and e-mail. The investigation finds that the Board has had problems handling indi- viduals’ telephone calls and e-mail enquiries in an acceptable , and also that the Board has taken certain measures to correct these problems, including introducing a “call back system” within its customer service department. How- ever, in order to satisfy the requirements of the Administrative Procedure Act in respect of service and accessibility, private individuals must also be able to come into contact with the Board’s various different units within a reasonable length of time. The complaints received by JO show that does not always satisfy this requirement. is criticised for shortcomings in respect of its service and accessibility. can the Board escape criticism for having communicated an incorrect decision re- garding the registration of the right of . Since the number of com- plaints of deficiencies in the Board’s service and accessibility is still relatively high, JO must continue to devote attention to this issue. Statement regarding ’s list of public legal counsels who are subject to monitoring, supervision and control (4500-2013) entered the name of a lawyer on a “List with names of public legal counsels who are subject to monitoring, supervision and control” since the Board had reason to question his suitability. According to the Board, the list is an aid used when assessing the suitability of public coun- sels to be appointed to specific cases, but it is not meant as an indication of incompetence. In its decision, JO states that has a responsibility to ensure that the counsel appointed is sufficiently competent for the task in hand, and that the Board must have a system whereby it can monitor and document the skills and/or deficiencies displayed by public coun- sels. Bearing in mind the far-reaching consequences that could result from a counsel being placed on the list, it is important that this action is considered thoroughly and is factually justified. Only circumstances implying that the counsel’s suitability must be questioned should be noted. The negligence of the person concerned must have reached a certain degree of seriousness and the information must be specified and objectively ascertained. Furthermore, it is important that the actual procedure satisfies fundamental requirements in re- spect of legal security. The decision develops how this can be safeguarded. The lawyer was placed on the list because he had not appealed a decision that found against the plaintiff, despite the fact that it had not been clarified that he had been assigned by the plaintiff to appeal on his behalf. In JO’s opinion, it is doubtful whether his actions are of a sufficiently serious nature that his suita- bility as a public counsel should be questioned. However, the decision to place him on the list lies within an acceptable discretionary . There is therefore insufficient reason to level any criticism at . 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 2 015 /1 6:JO1 Criticism that ’s IT support system for appointing public legal counsels discriminates against persons who do actually satisfy the suitability requirements (5920-2013) When a public counsel is to be appointed, ’s IT support system for the administration of information regarding public counsels suggests, in the first instance, a lawyer or a legal associate at a law office. Other persons are only suggested if neither of the above are available. has stressed that the system does not exclude those other than lawyers and legal associates from being appointed, and that the person appoint- ing a counsel is not bound to use the person that the system suggests. However, JO can draw no conclusion other than that persons who are not lawyers or legal associates are at a disadvantage since the IT support system suggests them in the second instance, regardless of whether or not they are suitable. In JO’s opin- ion, it is not acceptable that persons satisfying the suitability requirements are regularly selected in the second instance. There is no objective reason for an IT support system with a ranking order that suggests one person to a lesser extent than a lawyer or legal associate. is there any legislation that gives scope for a systematic ranking of suitable persons. There are of course circumstances where a specific counsel may be more or less suitable for a specific case; this is another matter. An assessment of suitability must be conducted for each in- dividual case. Criticism of the for making an unfounded decision regarding an asylum seeker’s age before a decision was made in the asylum case (6942-2013) On 7 2013, H.S. applied for asylum in . He had no identity docu- ments but stated that he was . H.S. had previously applied for asy- lum in . Upon request from the , agreed to resume responsibility for the assessment of H.S.’s asylum applica- tion, in accordance with the Regulation. ’s acceptance was valid until . On , during its processing of the case, the decided that H.S. would be considered as an adult, which, at the time, was a precondition for transferring the case. However, no transfer was completed since the time limit expired on . JO has previously stated that the point of departure in an assessment of whether an applicant is to be considered as an adult or a minor should be that such an assessment should be conducted in conjunction with a decision being made in the asylum case. Up to this point, the age stated by the applicant at the time of application should be accepted, unless it is clearly evident that the information is incorrect. In the decision, JO states that this principle is also to apply when dealing with a transfer in accordance with the Regulation. The age stated by the asylum seeker when applying must normally be accepted up until such a time that the makes a decision regarding a transfer, or another final decision in the case. is criticised for having considered H.S.’s age before making a final decision in the case, and for making this assessment in the form of a non-appealable deci- sion, which had direct legal consequences for H.S. 2 015 /1 6: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 Serious criticism of instructions to the authority in an enforcement case (5329-2013) Subsequent to deciding to deport an asylum seeker to , the case was handed over to a authority for enforce- ment. The authority has, on two occasions, informed the that it is not possible to enforce this decision. is being criticised for not having provided clear instructions regarding the ac- tion the authority was to take in order to enforce the decision. This has resulted in the enforcement processes becoming very protracted. Criticism of Municipality’s social welfare services for visiting a woman’s workplace during their preliminary assessment of a report of concerns regarding her child (3986-2013) Within the scope of a preliminary assessment of an anonymous report of con- cerns regarding a seven-year-old girl, went to the home of the child’s guardian (her mother) to talk to her and to see the girl. Since no-one was at home, they instead went to see the mother at her place of work where the social workers gave her an account of the report and made arrangements with the mother for a home visit later that day. In accordance with a recom- mendation from the , all these visits were conducted in the company of officers. JO agrees with the social welfare services that they had grounds to contact the mother during the preliminary assessment. However, such con- tact must occur while respecting the integrity of the individual. The social wel- fare services are criticised for, as a first contact measure, going to the mother’s home unannounced in the company of uniformed officers. They are also criticised for approaching the mother at her place of work. Such an extraordi- nary measure should not even be considered within the scope of a preliminary assessment. The visit, which was unannounced and took place in the company of uniformed officers, was a clear violation of the mother’s integrity. JO adds that the scope for such a visit must be considered highly limited, even during an ongoing child welfare investigation. Serious criticism of in the for several failings in its handling of a case involving a child (519-2013) initiated what is known as a childcare investigation sub- sequent to a mother having applied for support for her 14-year-old daughter. In the investigation the girl’s problems were described in a relatively large amount of detail and the investigator assessed the girl to be in need of support and as- sistance. While the investigation was being carried out, the family moved to another municipality. One month later, the district board concluded the inves- tigation without proposing any interventions and without making contact with the municipality to which the family had moved. The social welfare board’s 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 2 015 /1 6:JO1 obligation to conduct a childcare investigation is one of the board’s most im- portant duties.