frsrdg · H304JO1 · 2015-11-06 00:00:00 — –kritik mot och mot två av tingsrättens domare i ett mål om vårdnad om barn m.m. för lång handläggningstid, för avsaknad av tidsplan, S A K R E G I S T E R B I L A G A 9 2 015 /1 6:JO1 för bristfällig uppföljning av en utsedd medlares arbete och för att flera fat- tade beslut saknat stöd i lag 15/16:86 –Allvarlig kritik mot Försvarsmakten för att inte ha verkställt ett beslut från 15/16:297 –kritik mot Förvaltningsrätten i för den bristfälliga handläggningen i samband med expedieringen av ett beslut i ett mål om omhän- dertagande enligt lagen om vård av missbrukare i vissa fall, vilket lett till att den intagne var frihetsberövad för länge 15/16:303 –kritik mot Kriminalvården, anstalten , för att inte ha fullgjort myn- dighetens underrättelseskyldighet till målsäganden enligt 35 § fängelseför- ordningen 15/16:244 –kritik mot Förvaltningsrätten i för den bristfälliga handläggningen i samband med expedieringen av ett beslut i ett mål om omhän- dertagande enligt lagen om vård av missbrukare i vissa fall, vilket lett till att den intagne var frihetsberövad för länge 15/16:303 Utredning/utredningsskyldighet/utredningsansvar –kritik mot bl.a. två polismän vid i för beslut om gripande och hämtning till förhör 15/16:107 –allvarlig kritik mot en brister i handläggningen av ett barnärende 15/16:382 –kritik mot en en förälder inte hade erbjudits tillfälle att delta i en barnavårdsutredning 15/16:392 –fråga om socialförvaltningen under utredningen av ett ärende om försörj- ningsstöd på eget initiativ får söka information om sökandens förhållanden på internet 15/16:403 –kritik mot en handläggare vid en socialförvaltning för att hon vid genom- förandet av en s.k. vårdnadsutredning agerat på ett sådant sätt att det funnits fog för att ifrågasätta hennes opartiskhet 15/16:456 –har haft stöd för sin åtgärd att begära in visst utrednings- material i ett ärende om assistansersättning 15/16:531 –allvarlig kritik mot för bristande anvisningar till polis- myndigheten i ett verkställighetsärende 15/16:367 –fråga om Statens institutionsstyrelses (SiS) skyldighet att anvisa plats vid särskilda ungdomshem 15/16:428 –allvarlig kritik mot en socialnämnd bl.a. för att nämnden hade ”verkställt” en domstols beslut om vårdnad genom ett omhändertagande en- ligt LVU 15/16:442 2 015 /1 6:JO1 B I L A G A 9 SAKREGISTER –kritik mot en rådman vid för att i ett mål om vårdnad om barn m.m. ha underlåtit att upprätta en tidsplan för målets handläggning och för bristfällig kontroll över hur en utsedd medlare skötte sitt uppdrag 15/16:38 –allvarlig kritik mot en rådman vid i ett mål om vårdnad om barn m.m. för den långa handläggningstiden, för avsaknad av tidsplan och för bristfällig processledning 15/16:83 –kritik mot och mot två av tingsrättens domare i ett mål om vårdnad om barn m.m. för lång handläggningstid, för avsaknad av tidsplan, för bristfällig uppföljning av en utsedd medlares arbete och för att flera fat- tade beslut saknat stöd i lag 15/16:86 –kritik mot en socialförvaltning för genomförandet av ett oanmält hembesök hos en förälder i samband med att den andra föräldern skulle hämta ett ge- mensamt barn 15/16:388 –allvarlig kritik mot en socialnämnd bl.a. för att nämnden hade ”verkställt” en domstols beslut om vårdnad genom ett omhändertagande en- ligt LVU 15/16:442 –kritik mot en handläggare vid en socialförvaltning för att hon vid genom- förandet av en s.k. vårdnadsutredning agerat på ett sådant sätt att det funnits fog för att ifrågasätta hennes opartiskhet 15/16:456 –kritik mot en socialförvaltning för hur genomförda samarbetssamtal har re- dovisats till tingsrätten 15/16:469 –uttalanden om en lista som används vid fördelningen av uppdrag som mål- sägandebiträde och som särskild företrädare för barn vid ; även uttalande om domstolssekreterares behörighet att förordna sådana och lagmannens ställningstagande till en begärd överklagandehänvisning 15/16:50 –frågor om tiden för överklagande m.m. 15/16:574 2 015 /1 6:JO1 The Swedish Parliamentary Ombudsmen Report for the period 1 2014 to 30 2015 General information and statistics During the period covered by the report, the following have held office as Par- liamentary Ombudsmen: (Chief Parliamentary Ombuds- man), , and . For a number of shorter periods the Deputy Ombudsmen and have dealt with and adjudicated on supervisory cases. During the working year, 7,358 new cases were registered with the Ombuds- men; 7,143 of them were complaints (previous working year: 7,110, an increase of 33, i.e. ), and 78 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 137 cases concerned new legisla- tion, where the Parliamentary Ombudsmen were given the opportunity to ex- press their opinion on government bills, etc. 7,242 cases were concluded during the period, a decrease of 195 (–), of which 7,041 involved complaints, 72 were cases initiated by the Ombudsmen themselves and 129 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. 2 015 /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 Schedule of cases initiated by the Ombudsmen and concluded during the period 1 2014–30 2015 Environment and health pro- Freedom of expression, ac- cess 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 2 015 /1 6:JO1 Schedule of complaint cases during the period 1 2014–30 2015 Labour market auth. ment, protection of ani- lotteries, serving of al- Freedom of expression, access to public docu- 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 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 a judge at District Court for the handling of a case regarding custody, etc. (6418-2013) A court case regarding custody of children, etc., took three years and four months. The responsible judge is criticised for not establishing a time plan for the processing of the case. He is also criticised for having insufficient control over how a mediator, employed by the District Court, handled his duties. Criticism of a judge at District Court in an enquiry regarding the handling of an adoption case (6120-2013) A judge is criticised in connection with his handling of an adoption case for: 1) not allowing the biological parents to issue a statement in respect of the appli- cation for adoption; 2) not informing those concerned that an adoption decision would mean that the adoptive child – from a legal perspective, according to the Act on The Children and Parents Code – would no longer be considered to be the child of its biological mother. Complaint against the chief judge at District Court regarding a list used in the distribution of assignments as counsel for the injured party, and as special representative for children, etc. (3586-2013) The chief judge at District Court was reported for not having included three legal associates in a list of lawyers and other law graduates suitable for assignments as counsel for the injured party or as special representatives for children. In its decision JO notes that the list is a practical tool for the District Court in respect of appointing suitable persons to the above assignments, and that the list does not contravene Section 1, Chapter 9 of the Swedish constitu- tion about objectivity and impartiality. JO therefore finds no reason to criticise the District Court in respect of its handling of the list. The Chief Judge was also reported for not having submitted an appeal referring to their position when this was requested by those concerned. Since the Chief Judge considered that her decision could not be appealed, she cannot, in JO’s opinion, be criticised for expressing that view. Serious criticism of a judge at District Court and criticism of the chief judge at the District Court for their slow processing of four civil disputes (6119-2013) JO’s inspection of District Court in October 2013 uncovered four civil disputes that had, basically, not been touched by the District Court since their receipt in 2010. The judge responsible for these cases is seriously criticised. The District Court’s chief judge is also criticised for their failure to act in order to get the cases processed and decided. 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 a judge at District Court who unlawfully decided to approve surveillance of electronic communications (387- 2015) A prosecutor applied to the Court for authorisation to conduct surveil- lance of electronic communications. The prosecutor suspected two individuals of conspiracy to commit grand larceny. She stated that the suspects planned to burgle a house and that they had been seen around the area of the house. To plan the burglary of a house and to be seen in the vicinity of the house is, how- ever, not a criminal offence under the provisions on conspiracy to commit grand larceny and cannot, under the law, lead to a prosecutor being authorised to conduct surveillance of electronic communications. Despite this, the District Court issued her the authorisation she requested. The judge responsible has been seriously reprimanded. Criticism of of Appeal for the handling of an appeal which included a request for reference in accordance with Chapter 10, Section 20, first paragraph of the Code of Judicial Procedure (3644-2014) District Court rejected the applicant’s claim for a dissolution of mar- riage because the District Court was not the approved court. The applicant ap- pealed the decision to of Appeal. The Court of Appeal did not issue leave to appeal. In JO’s decision, the Court of Appeal is criticised for having not understood the applicant’s appeal as a request for reference to the correct District Court, in accordance with Chapter 10, Section 20, first paragraph of the Code of Judicial Procedure, and consequently for not issuing leave to ap- peal in the case. Criticism of a judge at District Court as a result of the District Court having sentenced a person for an act for which he had not been charged (1371-2014) A person was charged with, together and in collusion with others, having com- mitted a robbery in a store. The District Court sentenced him for either having been in the store and having conducted the robbery itself, or for having driven a getaway vehicle from the crime scene. However, the prosecutor has not claimed that any of those involved had driven a getaway vehicle. The judge responsible has been reprimanded because the District Court sentenced the de- fendant for an act for which he had not been charged. Complaint against District Court regarding the formulation of an injunction to pay a supplementary fee in a case that had been transferred to the District Court from the Swedish Enforcement Authority (6998-2014) Since 1 2014, the party that has presented a case before the Swedish En- forcement Authority must pay a supplementary fee when the case is transferred to the District Court. The plaintiff paid such a fee to District Court despite having already been paid by the defendant for his claim, and thus no longer had an interest in the District Court examining the case. JO’s decision notes that the injunction that the District Court sent to the plaintiff was not 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 clearly formulated, which is why he did not understand its meaning or the con- sequence of the payment being made. However, since the District Court had used a template provided by the , the District Court is not subjected to any criticism. Criticism of a judge at District Court for their formulation of a default judgment (386-2015) In a default judgment, the plaintiff’s claim and the references to the circum- stances on which the claim was based had been presented by reference to an The appendix comprised a surrender document addressed to the Swedish Enforcement Authority, along with copies of bank statements, in- voices and giro payments. The JO decision notes that the circumstances to which the plaintiff referred in support of their claim – and therein the judg- ment’s legal force – cannot clearly be inferred from the judgment. the number of appendices and their content made the judgment confusing and hard to read. The judge responsible is criticised for their formulation of the Serious criticism of a judge at District Court for the handling of a case regarding custody of children, etc. (382-2015) A summons application in a case regarding custody of children, etc., was sub- mitted to the District Court on 5 2010 and was settled through a judg- ment on the documentation on , i.e., a over five years later. In the decision, the judge responsible has been severely criticised for the lack of time management, for inadequate process management and for the lengthy processing time of the case. Criticism of District Court and two of the District Court’s judges for administration of a child custody case, etc. (7131-2014) The matter regards a custody case in the District Court concerning three chil- dren aged 11, 9 and 3 at the time the case was initiated. appointed a mediator who was to attempt to have the parents come to a mutual The mediator was however unsuccessful in this regard. judgment was finally passed, two years and nine months after the case had be- gun, the children were 14, 12 and 6 respectively. In JO’s decision, it is estab- that it must be considered a failure that a case concerning children took as long as two years and nine months to administer. The biggest causes of the long administration time were the lack of a schedule and inadequate follow-up of the mediator’s work. The District Court is criticised for this. administration period, three additional points have been noted in JO’s review. The District Court tasked two different individuals with interviewing the parties’ two eldest children. It is not possible for a court to determine, without legislative backing, that a third party shall speak with a child. made the decision is thus criticised. The District Court decided how a care institution should prioritise a referral relating to the children. There is no legis- lative backing for such a decision, and the judge who made this decision is thus In three decisions on access between one of the parents and one of 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 the children, the District Court gave third parties – the mediator’s representa- tive and an as-yet unappointed person who was to act as access support – the right to make decisions on the access in certain situations. However, the law does not permit this type of delegated decision-making, and the judge who made this decision is thus criticised. Cases involving prosecutors, and custom officers Criticism of the County Authority for, in breach of the proportionality principle, having apprehended persons suspected of offences which can only result in fines (457-2014) The apprehended three women for an offence against Munic- ipality’s local public order regulations. The women were apprehended as they lacked in and there was a risk that they, by leaving the coun- try, would try to avoid criminal charges or sentencing. In the decision, the Par- liamentary Ombudsman finds that apprehending the women for an offence which can only result in a monetary fine was in breach of the proportionality principle. Criticism, including that levelled at two policemen at the authority, for decisions in respect of the apprehension of suspects and their bringing to questioning (4761-2013) was arrested on suspicion of raping his daughter after the daughter’s mother had filed a report in conjunction with her leaving her daughter with him. JO notes that the decision to arrest J.R. was made based on insuffi- cient information and vague grounds. The report referred to a crime that was supposed to have been committed several years ago, and which had already been the subject of a report and investigation. There were therefore nei- ther sufficiently strong suspicions of J.R. nor investigative reasons that justified an arrest. had been in custody for about an hour, it was instead de- cided that he should be brought for questioning, without a preceding summons being issued. JO considers that this decision was also incorrect. It almost seems like this was a measure that was taken quickly when it became obvious that there were insufficient grounds for his arrest. The decision therefore reminds us that bringing suspects to questioning is not to be used as an alternative to arrest when the prerequisites for an arrest are not satisfied. The policemen who made the decision to arrest/bring to questioning respectively are criticised. The decision also addresses the measures taken when J.R. was taken into custody. Criticism of the former Authority of County for photographing and performing an identity check on a woman and her daughter in their home without the legal grounds for doing so (1422-2014) Two officers who had been called out to an apartment after a reported disturbance requested a woman and her 15-year-old daughter, who were living in the apartment, to produce identification and to stand against a wall to be photographed. The reason for this was so that their photographs could later be 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 compared with a surveillance film that showed two individuals who were sus- pected of theft. The woman and her daughter were not suspected of the theft, and the head of the investigation was not contacted before they were photo- In a situation such as the one described, there are no grounds to take these measures, even if the officers were under the impression that the woman and her daughter had given their consent. In the decision, the former Authority of County is criticised for photographing the woman and her daughter and for performing an identity check without sufficient legal grounds for taking these measures. Serious criticism of the Authority in , at that time, for failings in the management of personal data in the authority’s criminal intelligence organization (5205-2013) Reports in the media that the Authority in , at that time, had an illegal register of more than 4,000 individuals were investigated by the Swedish Commission on Security and Integrity Protection and prosecutors. Their investigations revealed that there were serious failings in the manage- ment of personal data in two databases kept by the ’s criminal intelli- These databases contained data concerning several thou- sand people, a large number of whom could be presumed to be . failings included that the purpose stated for this use of personal data was far too general, that its use had not been logged, that culling had not taken place to a sufficient extent and that there was no indication of who were suspects. JO have investigated who within the Authority was responsible for these In her decision, the JO state that the failings ascertained had very se- Specifically, the lack of culling has resulted in the creation of a more or less permanent genealogical register concerning a large number of people of origin. The two databases have become a de facto register of ethnic affiliation. According to the JO, the very clear division of responsi- bility within the Authority was a prerequisite for the failings in the da- The decision-making system applied by the Authority to the management of personal data, in practice, resulted in decisions being made by people who lacked the requisite authority. The uncertainties in the division of responsibility meant that those involved were not aware of the extent of their There was a lack of control over which databases were being created and very limited opportunities to detect any impropriety in them. thermore, there was a lack of technical opportunities to apply the authority’s procedures for logging, culling and labelling of people who were not suspected The authority knew about this, but took none of the necessary steps to ensure compliance with the regulations concerning privacy protection. happened demonstrates extensive and serious failings in the criminal intelli- Accordingly, the JO direct serious criticism at the Authority in at that time. It is the JO’s opinion that those who were in charge of the county criminal investigation department at the time bear a great deal of the responsibility for these failings. However, responsibility for the fun- damental failings in terms of the authority’s organisational structure, instruc- tions and practice rests on the shoulders of the Authority and its most 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 senior manager, the Chief Commissioner. The JO is also very critical of the head of the criminal intelligence service in , who was responsible for the fact that these databases were actually created, and to the officers who provided the information contained within them. The JO presumes that the new Authority are taking the necessary steps to guarantee compliance with the provisions concerning the protection of privacy in the Act throughout the entire authority. Statement regarding processing times at the Swedish National Laboratory of Forensic Science (SKL) (441-2014) The Parliamentary Ombudsman (JO) has investigated processing times at the Swedish National Laboratory of Forensic Science (SKL). It has emerged from the investigation that the processing time for any given case is affected by the time required for the examination itself and the degree of difficulty of the anal- ysis. However, there are other circumstances that have an impact; for example, the volumes of cases of a similar nature is an important factor. For cases with large volumes, such as narcotic analyses, SKL has developed rapid processes with automated instruments and IT support. However, for cases with smaller volumes, which are handled by just a few officers, there is often idle time when the officers are working with other, higher priority cases. The processing time for a case is also affected by SKL’s prioritisations. By and large, SKL has been organised so that it can handle priority cases, such as those involving detained persons or young people, as quickly as possible. There is no reason to object to this per se, since there are particular, statute-regulated requirements for these cases to be processed speedily. Such prioritisation does, however, lead to other cases not being processed within a reasonable length of time. The category of case where there is the greatest problem with long processing times is weapon examinations. SKL’s records indicate that the processing times here have in- creased considerably in recent years. The situation is particularly serious for priority cases. It cannot be ruled out, for instance, that the processing times lead to the periods of detention being unnecessarily long. It is a fundamental legal right for a person not to be detained longer than necessary. All authorities in- volved in the chain of events are responsible for this. SKL has a responsibility to organise its operations and ensure that its resources are allocated as required so that preliminary investigations in which there is a particular need for urgency can be completed within a reasonable length of time, and that deadlines are met.