Cecilia Renfors - summary 2018/19

Parliamentary Ombudsman, supervisory area 4

JO Cecilia Renfors Photographer: JO

My supervisory area has encompassed police, prosecutor and customs cases, immigration cases and certain issues concerning the Government Offices and municipal operations, with emphasis on the supervision of police and prosecutors and on immigration cases. These complaints have dominated the supervisory work, as in previous years.

I took office as Parliamentary Ombudsman on 1 September, 2013, and concluded my period of service in the summer of 2019. The years have been interesting and rewarding and I have been able to contribute in many areas to the protection of individuals’ privacy and to efficient administration at municipalities and government agencies. At the same time, there is reason for me to note that it has not been possible to look more closely at all the pressing matters that arise in the supervisory work. I have had the privilege of working together with very committed and talented colleagues, but the number of cases and urgent issues has been too great.

The number of complaint cases within my supervisory area has therefore remained at a high level throughout the operating year (2,296 cases), with the largest number of complaints directed against the police (990). The number of complaints against the Migration Agency is slightly lower than in 2016/17 but significantly higher than when I took office, when the number was below 300. This year, 706 complaints were received in the area of immigration law, compared with 632 in the preceding operating year. The number of enquiries this year was 3 and the number of legislative referrals received was 20.

Together with my colleagues, I have carried out inspections of the Separate Public Prosecution Office at the Prosecution Authority, which handles suspected criminal offences on the part of police and prosecutors. I have also conducted a visit combined with an inspection of the Migration Agency’s national prison and detention coordination at the agency’s detention centre in Märsta.

On my instruction, the Opcat Unit has carried out inspections at eleven police lock-ups. At one of these, Borlänge lock-up, I myself participated together with three members of the Opcat Unit and my own division. It was, as always, a valuable experience to be on site and witness how an operation is managed, and talk to staff and inmates. The inspection showed that the operation is efficient but that there is room for improvement, for example, in educating the staff members at the lock-up, and with the documentation in certain respects. The major issue at the time of the inspection was, however, that the occupancy situation was such that the detainees being held could not be transferred from a lock-up to a detention centre according to the applicable regulations. Lock-ups are not intended for anything other than short-term deprivation of liberty, and it is obviously unacceptable that individuals are kept there longer than intended and permitted by law.

Police, prosecutors and customs

The treatment of inmates in police lock-up has been a recurring issue in the supervisory work of recent years. This has also been the case during this operating year. In the annual report, I bring up a few of the cases that have been handled during the year. One of these involves a man who, without there being any concrete security risks, was not allowed to keep his prosthetic leg in his cell, and another case involves a man who was left naked in a cell for several hours (ref. nos. 5867-2017 and 3622-2017). In the latter case, the police also decided that the man did not need the medication for which the man had a prescription. As I have stated previously about inmates’ medical care needs, the police must be careful about making medical assessments, and this also applies to the inmate’s need of their own medication.

The way in which the police handles the task of providing assistance in enforcing a decision for compulsory care etc. (so-called judicial assistance) has over the years been the subject of several decisions. In this years’ annual report, there is a decision where the police, after certain measures to provide judicial assistance had failed, instructed a 15-year-old to make their own way back to the residential care centre from which he had absconded (ref. no. 3529-2017). This is obviously not how judicial assistance is to be provided.

One decision concerns a special situation regarding the maintaining of restrictions for detainees in rooms with poor soundproofing (ref. no. 2670-2018). Three 16-year-olds suspected of rape were being detained with restrictions regarding their right to be in contact with each other. However, they could contact each other by shouting from their cells in the lock-up. The prosecutor decided that the conversation would be recorded if they continued calling to each other. The inmates were informed of this and that the recordings could be used in court. Their public defenders were not informed. My investigation led me to conclude that the measure cannot be viewed as an enforcement of the applicable restrictions. It must instead be an obvious point of departure that the premises where detainees are being housed do not allow for unauthorised contact, and that other measures are taken to prevent contact if the premises have poor soundproofing. My conclusion was that recordings of conversations between persons deprived of liberty that are recorded for some kind of investigative purpose must be supported by law. There was no such support in this instance and the prosecutor was criticised for their decision.

A relatively new issue that has arisen in the supervisory work is the actions of the police when an intervention is filmed by the person subject to the intervention, or by a third party. Complaints against the police, for telling people to stop filming, have been frequent during the past year. The police naturally have the right to act if persons filming are disrupting and preventing an intervention or in some way pose a security risk, but not on the grounds that they do not like it or because they feel uncomfortable. In the performance of their duty, a police officer cannot express personal opinions about, for example, the risks regarding how a video recording may be used. I had cause to state this in a decision, and the fact that every person has the right to obtain information for publication in constitutionally protected media (ref. no. 6506-2017). In another decision, there was reason to emphasise that police officers must also act appropriately and professionally when their work is being questioned. In the case, two officers had blocked the view of a lawyer who was filming an intervention and also behaved and spoke in a way that did not inspire trust (ref. no. 6908-2016).

The application of traditional coercive measures with regard to computers and today’s phones is often cause for concern. Even more complicated is the legislation and its application when it comes to the right, such as that held by customs officers, to use coercive measures. I have investigated this in a case that involved a body search and search of a mobile phone that a traveller had with them (ref. no. 6093-2017). The aim was to search for child pornography. I came to the conclusion that a search cannot be carried out if there is no seizure order and no stance on the investigation taken by the person in charge of the preliminary investigation, as is the case when a body search is carried out in a criminal investigation according to the provisions of the Code of Judicial Procedure. There is also no support for the inspection of mobile phones and computers in the regulations that apply to the physical import of goods. I do not share the view expressed in a previous Parliamentary Ombudsmen decision that a computer can be equated with bags and the like in this context. The actions of the Customs are therefore not supported in law. Given that the possibilities of searching for child pornography at customs checkpoints would be significantly limited, I turned the decision over to the Ministry of Justice.

Swedish law does not apply the principle of legal insanity, i.e. that individuals with a severe mental disorder cannot be held accountable for crimes. However, there are possibilities to refrain from prosecuting or to close a preliminary investigation in light of the suspect’s disorder or disability. A decision, in the spring, concerned a charge of aggravated assault brought against a man who had a severe intellectual disability and a level of development corresponding to that of a child aged 2–4. He did not have the intellectual capacity to understand what the criminal investigation was about, it was not possible to question him, and he could not participate in the District Court hearing. In such a case, prosecution is not meaningful, and in my opinion it is difficult to reconcile with reasonable demands on how the legal community should treat people with severe intellectual disabilities. The prosecutor did not share this view, and my assessment was that he placed far too much emphasis on whether the man, despite his disability, could be considered to have acted with intent in the legal sense.

Immigration law

Complaints against the Migration Agency regarding long processing times have continued, and during this operating year, the majority have concerned citizenship cases. The processing times at the Agency in these cases can extend to more than two years. This is of course unacceptable and can significantly impact those concerned, for example, with regard to the possibilities of travelling abroad. This may include the inability to take a job that involves trips abroad, the inability to take a normal holiday with the family, the inability to join one’s class on a school trip abroad, or the inability to visit a dying relative. A delayed decision on citizenship may also affect a person’s right to vote in general elections. These issues will continue to feature in the supervisory work and will be dealt with in future cases where the issue of processing times in individual cases has been referred for a decision.

A few of the decisions that concern the Migration Agency in this year’s annual report relate to excessively long processing in another respect, namely when the Agency’s decisions have been appealed. An appeal must, unless the decision is changed, be promptly forwarded to the court. In those two cases, it took more than seven months and one year, respectively, for the appeal to be forwarded, which unacceptably infringed on the appellant’s right to have the matter examined by a court (ref. nos. 8010-2017 and 8613-2017). The cases showed that the Migration Agency needs to implement measures to establish control and monitoring routines for appeals.

An asylum seeker has the right to daily benefit for the duration that the asylum case is processed. In order to facilitate payment of the benefit, the funds are deposited on a cash card that the asylum seeker can use. For those whose application is rejected, the right to the benefit is normally withdrawn when the deadline for voluntarily leaving the country expires. In a couple of cases I have examined the Migration Agency’s procedure for blocking cash cards when the right to the benefit expires (ref. nos. 4987-2018 and 5935-2018). The procedure entails the person in question being denied access to the money that is already on the card and which belongs to him or her. There is no legislative support for the Agency to control access to money that has been paid to an asylum seeker in this manner. In addition, I have previously criticised the Agency for blocking a cash card and thus assuming control of funds that belonged to an individual asylum seeker. I am extremely critical of the fact that this procedure is still used. It entails a circumvention of the regulatory framework decided on by the legislature and an exploitation of the asylum seeker’s vulnerable position.

In the previous annual report, I mentioned that detention centres have troubling conditions in terms of dealing with the prevalence of narcotics. I have followed up on this issue and have made certain statements regarding the application of the regulations concerning isolation and security holding in a detention centre etc. when it comes to inmates who have used narcotics or have been found with narcotics without being under the influence (ref. no. 4378-2018). The investigation revealed that the prevalence of narcotics in detention centres is a general problem, that the agency uses the options of isolation and security holding in situations where the prerequisites for such do not exist, and it is difficult to overcome the problems through the current regulations. The fact that detention centres cannot be kept free of narcotics has serious consequences for those inmates who want no part of this activity, and it entails a risk for all those at a detention centre. The implementation of such invasive measures as isolation and security holding must of course be uniform and in keeping with the rule of law, and the agency needs to work on this. However, alongside the measures available to the agency, my assessment is that the legislation also needs to be reviewed. I am therefore handing over my decision to the Government Offices, according to Section 4 of the Act with Instructions for the Parliamentary Ombudsmen.

During the operating year, I have also followed up on other issues concerning isolation and security holding. This was done during an inspection of the agency’s national prison and detention coordination at the detention centre in Märsta, where my colleagues and I examined issues concerning the basis for such decisions and how the review of these decisions is handled (ref. no. 6665-2018). The Parliamentary Ombudsmen has already in the past highlighted the need for statutory regulation with regard to the reassessment of placements in security holding. As no such regulation has come to pass, I forwarded the report with my observations to the Government Offices, as per Section 4 of the instructions for the Parliamentary Ombudsmen.

Public documents

As with last year, I can reiterate this year that there is often inadequate knowledge regarding the regulations that apply to government agencies’ handling of public documents, and regarding the importance of our constitutional principle of public access to official documents in terms of ensuring efficient municipal and state administration.

The Ministry for Foreign Affairs has received recurrent criticism, not only from the Parliamentary Ombudsmen, for shortcomings in this area. In a decision I included in this year’s annual report, the investigation reveals shortcomings similar to those highlighted in previous examinations (ref. no. 3996-2018). In its statement to the Parliamentary Ombudsmen, the Ministry referred to the final report produced within the framework of the action programme #handling2018. In this report, it is recommended, among other things, that a review be done concerning the handling of requests for public documents. Such a review has subsequently begun. In light of the recurrent shortcomings, I considered it urgent to follow up on the work being done, and the Ministry for Foreign Affairs was therefore asked to submit a report by 1 October 2019 regarding the measures that have thus far been taken as well as those planned.

The correct processing of requests for public documents is essential as it concerns a constitutional right. Duties of this nature constitute the exercise of public authority and may not be handed over by the authority to another party, such as a consultant. The Municipal Executive Committee in Umeå was criticised for allowing a lawyer to handle requests for access to certain documents that were of interest to the applicant in an ongoing dispute with the municipality (ref. no. 3053-2018). Moreover, the processing was not sufficiently expedited. The Committee’s actions gave the impression that it had not been able to separate its role as counterparty in a dispute from that of a public authority responsible for the correct handling of matters regarding public documents. This is naturally worrying.

The general rule is that public documents are to be stored, but the documents may also be disposed of. When an authority determines the extent to which documents shall be discarded, the authority must take into account the right of access to public documents and the function this right serves, among other things. Stockholms Stadsteater received criticism for their immediate disposal of application documents in an employment process that was ended (ref. no. 517-2018). Suspicions that decisions in employment matters are made on non-objective grounds risk damaging confidence in the public operations, and in this respect the principle of public access fulfils an important control function. This also applies to an employment process that is ended. Documents in such cases can therefore not be immediately discarded.

Freedom of speech and freedom to disseminate information

Härjedalen Municipality sent out a newsletter with information to the municipal managers concerning the employees’ contact with the media (ref. no. 6024-2017). The newsletter stated that employees have the freedom of speech and freedom to disseminate information, but that they do not have the right to contact the media during working hours and that they may not provide statements on such matters as are subject to confidentiality. Furthermore, it was stated that persons from the media do not have the right to enter the municipality’s premises and that they must make an appointment with the manager concerned if they want to talk to an employee. The information could not be perceived in any way other than as a general prohibition on contacting the media during working hours, that is, even when it does not interfere with the work. This information was therefore unacceptable. The relationship between the confidentiality rules and freedom to disseminate information was also insufficiently specified. There was also reason to point out that the municipality cannot have stricter rules for representatives of the media than for others in terms of access to premises. Overall, the information gave the impression that the employees’ freedom of speech was more restricted than what is actually the case and that the municipality generally had a negative attitude towards employees utilising their right to communicate with the media. It is clearly unacceptable for a municipality not to have better knowledge of what applies within this important, constitutionally regulated area, and for incorrect information of this nature to be provided to the employees.

Updated 11/15/2019