Lars Lindström - summary 2016/17

Parliamentary Ombudsman, supervisory area 1

Bild på JO Lars Lindström. Foto: Pernille Tofte Photographer: JO

The courts, the Swedish Enforcement Authority, the planning and building area, the land survey authorities, environmental and health protection, the Swedish Tax Agency, the chief guardians and the communication area belong to my area of responsibility. During the financial year, 1,763 complaint cases were received, which is an increase by 10 cases (0.6 %) compared with the previous year. 1,808 complaint cases were decided during the year. 598 of these cases were settled by delegated heads of division.

During the fiscal year, I inspected the Administrative Court in Växjö. Head of Division Håkansson has on my behalf inspected the Local Building Committee of Sotenäs Municipality and the Local Building Committee of the City of Västerås including the land survey authority. Head of Division Sjögren has on my behalf inspected the Chief Guardian Board of Nacka Municipality and the Chief Guardian Board of Järfälla Municipality. The inspection reports are available on the Parliamentary Ombudsmen website.

During the fiscal year, I began a preliminary investigation regarding suspected misconduct of office.

In the following, I highlight some of the decisions that are presented in this year’s annual report and present certain other measures that I have undertaken during the fiscal year.

The processing of custody cases in the district courts

In my supervision of the country’s district courts, I have had reason to criticise the courts several times for the processing of cases concerning the custody of children. This concerned slow case processing, which was ultimately due to the district court devoting time to getting the parties to agree without maintaining control of the process not becoming drawn out in time (see e.g. my decision of 3 April 2013, ref. no. 1814-2012). One variant of the same theme is slowness due to the district court getting help from a mediator who was given too free rein in their work (JO 2015/16 p. 38 and 86). I also criticised a court for, in several cases, making a decision in a custody case in conflict with applicable law (JO 2015/16 p. 86). In all of these cases, it is clear from the courts’ statements to the Parliamentary Ombudsmen that the deficiencies in the processing were due to an effort to do what was best for the child. But it is of course clear that the court that handles a custody case must just as in other cases follow the law. “The best interest of the child” is not a magic formula that makes wrong right.

In this year’s annual report, there is yet another example of judges, in their strive to do what is best for the child, handling the custody case in conflict with what is prescribed by law (ref. no. 2301-2016). The so-called, for civil cases, pursuant to Ch. 17 Section 2 of the Code of Judicial Procedure, means that the judgement shall be based on what has taken place in the main proceedings in the case. When I inspected a district court, I noted that two of the district court’s judges, in custody judgements, wrote that the basis for the court’s review was the documents or the file in the case and what otherwise came forth in the main proceedings. However, the implication of the principle of immediateness is that the material in the file may not form the basis for the judgement in the case if it has not occurred in the main proceedings. I therefore became suspicious and obtained a statement from the district court. It proved that both of these judges, by all judgements, handled custody cases in a manner that was not in agreement with the rules of the Code of Judicial Procedure. Moreover, the reason they cited was precisely that they were guided by what was best for the children involved in the cases. Of course it is honourable to want to do what is best for the child, but it must take place within the scope of the law. The judges therefore received criticism.

This year’s annual report contains yet another example of incorrect processing of a custody case (ref. no. 1308-2016). It was a tragic case; a mother who was the sole guardian of a child was injured so badly in a traffic accident that she could not exercise custody of the child. The main rule according to the law in such a case is that the father should receive custody, but it is possible to appoint one or two other guardians if it is more appropriate. It is the district court that decides on this and the district court can pronounce a temporary (interim) decision on custody if the final decision may become drawn out over time. It is in the nature of the matter that the interim decision shall be pronounced as quickly as possible during the initial handling of the custody case since the child has no functioning guardian. However, in the case in question, it took more than seven months for the district court to decide on the request for an interim decision. In the district court’s statement, reference is made to deep conflicts and a need to find solutions beyond the usual, as an explanation of the reasons why the processing of the case was drawn out in time. Nevertheless, from the investigation, it may be seen to be apparent that focus for the district court’s processing was shifted from the review of the custody motion to other matters and that this shift is the main reason that the processing of the case took so long.

Lantmäteriet and Ch. 1 Section 9 of the Instrument of Government

In Ch. 1 Section 9 of the Instrument of Government, it is prescribed that courts, administrative authorities and others that perform public administrative tasks in their activities shall take into account that all are equal before the law and observe objectivity and impartiality. One of the main tasks of the Parliamentary Ombudsmen, according to their instructions, is to monitor compliance with the constitutional requirement. In an essay in the book “JO – lagarnas väktare” [Parliamentary Ombudsmen – guardians of the law], Lotta Lerwall discusses why the Parliamentary Ombudsmen rarely refer to Ch. 1 Section 9 of the Instrument of Government. The essay was written in 2009, and I believe that the rule is cited more frequently today.

One question that frequently recurs is how the authorities handle the constitutional regulation in conjunction to the service obligation, pursuant to Section 4 of the Administrative Procedures Act (see e.g. 2009/10 p. 191 and 2011/12 p. 267). It is important for the authorities to remember that the service obligation pursuant to Section 4 of the Administrative Procedures Act is subordinate to the constitutional rule. The assistance that an authority can provide to an individual must remain within the scope of what is permitted pursuant to Ch. 1 Section 9 of the Instrument of Government. This balance can naturally be particularly sensitive in cases with more than one party.

In this year’s annual report, there are four decisions where land surveyors at the national Lantmäteriet were criticised for acting in conflict with Ch. 1 Section 9 of the Instrument of Government. In one of the decisions (ref. no. 2323-2016), the surveyor was to cancel a procedure due to a recall. In his decision, the surveyor made statements about the applicant’s rights towards another stakeholder that conflicted with the requirements of objectivity and impartiality pursuant to Ch. 1 Section 9 of the Instrument of Government. In the other decision (ref. no. 3348-2016), it was a matter of the need for changes regarding a communal facility. The surveyor exchanged correspondence with two persons and made statements about deficient knowledge of the joint ownership association’s board and about who should pay for potential future costs for a procedure. The surveyor received criticism because he had not observed the requirements of objectivity and impartiality pursuant to Ch. 1 Section 9 of the Instrument of Government. The third decision (ref. no. 4002-2016) is about a case regarding utility easement. In the case, consent was required from the Energy Markets Inspectorate. The surveyor applied for this consent on the applicant’s behalf. In my decision, I note that the surveyor hereby provided assistance that clearly exceeds what is suitable and that an action of this nature can damage the trust in the impartiality of Lantmäteriet. The surveyor’s actions were therefore not consistent with the requirement of impartiality pursuant to Ch. 1 Section 9 of the Instrument of Government.

These three decisions have in common that the surveyor clearly acted with the aim of providing service in accordance with Section 4 of the Administrative Procedures Act. Of the referral response from Lantmäteriet, in one of the cases, it is apparent that there has been an internal dialogue in recent years within the Cadastral Services division of Lantmäteriet that the authority has sometimes provided a service to the public that exceeded what can be required and that, according to the authority, there may be reason to be more restrictive in providing advice. From the perspective of the Parliamentary Ombudsmen, I welcome these, often difficult, considerations being discussed within the authority.

The fourth decision (ref. no. 4001-2016) does not concern the service obligation, but a different situation. A person applied for a change of the so-called betterment area for an already established communal facility. When the application came in, the surveyor sent a letter to the applicant and a number of other people. In the letter, the survey asked “If you were dissatisfied with the betterment area in the procedure, why did you not appeal the decision?” In my decision, I note that the reasons that the applicant and others had for not appealing Lantmäteriet’s earlier decisions, must reasonably lacked significance when processing the new application and that the question therefore conflicted with the requirement of objectivity pursuant to Ch. 1 Section 9 of the Instrument of Government.

Chief guardians and chief guardian boards

In the asylum process, the asylum seeker’s age is of significance. The Swedish Migration Agency makes an assessment where applicable of the applicant’s age. The question of age is also of significance to chief guardians and chief guardian boards. Above all, a discussion has been conducted regarding what the chief guardian should do when the Swedish Migration Agency has deemed that a person who has said he or she was under the age of 18 in actuality is older. For anyone who is over the age of 18, there are namely no conditions to have a custodian under the Act on Custodianship for Unaccompanied Children (2005:429). In two decisions during the fiscal year, I settled complaints against chief guardians that more or less automatically had ended such custodianship after the Swedish Migration Agency had assessed that the asylum seeker had turned 18. I arrived at the conclusion that it was wrong to do so. The task of the chief guardian is to conduct its own age assessment when there is reason to do so in accordance with the Act on Custodianship for Unaccompanied Children and make a decision subject to appeal if the assessment leads to the end of the custodianship. One of my decisions is included in the annual report (ref. no. 6894-2016).

Swedish Enforcement Authority

In the previous annual report, I reported observations regarding the Swedish Enforcement Authority. Judging from the influx of complaints, it appears as if the authority has certain problems. During 2015, the Parliamentary Ombudsmen criticised the authority in seven decisions and in 2016, the number of critical decisions was 13. In the first half of 2017, 11 critical decisions were pronounced. The number of received complaints during the 2015/16 fiscal year was 164 and during the 2016/17 fiscal year it was 265.

The majority of the complaints against the Swedish Enforcement Authority concern the same thing that I developed in the previous annual report, namely the authority’s handling of received funds. I then pointed out that there were two problems for the Swedish Enforcement Authority in terms of the handling of funds. Firstly, it appears as if mistakes are made too often. And secondly, it often takes conspicuously long time before the individual receives back the money the authority mistakenly paid to somebody else. This year’s annual report contains two examples of the authority’s difficulties in taking care of the received funds in a correct manner. In one of the decisions (ref. no. 548-2016), a person who had been convicted of having committed a crime, had also been sentenced to pay damages to the victim of the crime. The victim turned to the Swedish Enforcement Authority and the convicted person ultimately paid the damages to the authority, which according to the rules should in turn pay the money to the victim.

This failed, however; the authority sent the money back to the person convicted. When the victim contacted the authority to find out where the money had gone, the authority realised that it had gone missing and sent out a collection letter to get it back. Unfortunately the collection letter was sent to the victim of the crime instead of the person convicted. The whole story ended with the victim receiving the money, but far too late. The Swedish Enforcement Authority received criticism of course.

During the fiscal year, I also criticised the Swedish Enforcement Authority in two decisions for slow case handling in cases concerning debt restructuring. One of these decisions is presented in the annual report (ref. no. 6973-2015). I have not previously seen any complaints of slow processing in the debt restructuring cases, but it comes forth from the investigation in both of the cases that the authority has had major difficulties that relate to the applications for debt restructuring increasing considerably in recent years. In 2009, 6,589 applications were received and the number of applications received in 2015 was 11,263.

One tragic case concerns the showing of a tenant-owner apartment for executive sale of the apartment. Between eight to ten prospective buyers came to the showing. When the showing took place, the tenant owner sat in the kitchen wearing only a nappy. The Swedish Enforcement Authority should not have conducted the showing under such circumstances, the Swedish Enforcement Authority received criticism.

Legislative referrals

Also during this fiscal year, I had occasion to answer a large number of referrals with proposals on statutory amendments. As previously, I have concentrated on answering the referrals that have closer connection to the central parts of my supervisory area. Notable among the referrals I have made a statement on were the memorandum (Ds 2016:17) Impermissible settlements, the interim report A strong penal protection against the purchase of sexual services and the exploitation of children through the purchase of sexual acts, etc. (SOU 2016:42), the interim report Penal measures against participation in an armed conflict in support of a terror organisation (SOU 2016:40), the report Fewer in detention and reduced isolation (SOU 2016:52), the ministry memorandum Questions on the 2009 reindeer husbandry convention (Ds 2016:27), the Media Constitutional Committee’s report Changed constitutional media laws (SOU 2016:58), the report A stronger protection for sexual integrity (SOU 2016:60), the report A more modern enforcement procedure (SOU 2016:81), the Ministry of Industry, Employment and Communication’s memorandum An activity requirement for the right to appeal certain decisions of leave, etc., the Swedish National Board of Housing, Building and Planning’s report (2016:26) Limited obligation to notify and right to appeal according to the Planning and Building Act, the report See the child (SOU 2017:6), the interim report The framework of the penal process and the courts’ decision basis in criminal cases – a better handling of major cases (SOU 2017:7), the interim report Regarding the presumption of innocence and the right to be present at the trial – Implementation of the EU presumption of innocence directive (SOU 2017:17), the report Strengthened order and security in court (SOU 2017:46) and the report New data protection act (SOU 2017:39).

Updated 12/28/2017