Danemark
SUBSTANTIAL MATTERS
In September 2002 the Danish Parliamentary Ombudsman submitted his Annual Report for the year 2001 to the Danish Parliament, the Folketing. Some key figures from the report are as follows:
3,560 new complaints were received during 2001. In comparison, the corresponding figure for 2000 was 3,390 new cases.
To compare the development in the total number of cases registered during the past ten years, please see the figures below:
1992 | 2,926 |
1993 | 2,943 |
1994 | 2,937 |
1995 | 3,030 |
1996 | 2,914 |
1997 | 3,524 |
1998 | 3,630 |
1999 | 3,423 |
2000 | 3,498 |
2001 | 3,689 |
One hundred individual cases were taken up on my own initiative, jf. Section 17, subsection (1) of the Ombudsman Act. Some individual cases taken up on my own initiative were not fully investigated. Through media debate I had often come across circumstances in the public area, which might require closer investigation. After obtaining relevant information from the administrative bodies involved, I decided whether to undertake an Ombudsman investigation. A few cases concerned merely a look into the legal basis for the administrative practice applied.
In 2001 a general investigation of sixty cases from the Patients’ Complaints Board was commenced as an own-initiative investigation.
The Ombudsman may carry out inspections of public institutions and other administrative bodies. Of the 3,560 new cases in 2001, 29 were inspection cases. The majority of the registered inspection cases relates to institutions managed by the police and the prison service (remand centres, county goals, prisons, etc.) and psychiatric institutions. However, inspections of other administrative bodies were also carried out, for example the Danish Immigration Service and the Copenhagen Central Library.
Some selected examples of cases processed in 2001 are as follows:
Assessment of child maintenance from prison inmate
On 9 June 1999 a woman gave birth to a son. On 18 March 1999 the child’s father had been arrested and subsequently sentenced to prison for 1 year and 9 months. Following the birth of the child the woman asked the state country to assess child maintenance.
On 29 October 1999 the state county decided that the woman’s application for child maintenance could not be granted. On 5 January 2000 the Department of Private Law endorsed the state county’s decision. It appeared that the department based its decision on the assessment that the relationship between the woman and the child’s father had not ceased due to internal incompatibility, and that the department had attached decisive importance to that assessment.
The Ombudsman stated that in the assessment of whether both parents fulfil the maintenance liability in accordance with the Children’s Act, it may enter as a criteria whether a separation is not due to incompatibility but to other circumstances. However, the decision of whether the non-cohabiting parent fulfils his or her maintenance liability in accordance with the act must always rely on a specific assessment in each individual case of the said parent’s fulfilment of the liability seen in relation to his or hers ability to pay the maintenance. A specific assessment of whether a prison inmate fulfils the maintenance liability to the best of his or her ability must also be made in cases where he or she (regardless of the ability to pay or not) are normally supposed to fulfil the maintenance liability in accordance with the Children’s Act where the relationship with the other parent has not been terminated due to incompatibility. The Ombudsman agreed that the question of whether a parent is considered a single parent in relation to other legislation is immaterial to the assessment of whether the other parent fulfils his or her maintenance liability in accordance with the Children’s Act.
The Ombudsman criticised the giving of grounds and the case evidence given by the state county and the Department of Private Law in connection with the decisions. Furthermore, the Ombudsman criticised the case processing time at the Department of Private Law.
In view of the available evidence the Ombudsman did not find sufficient grounds for criticising the result of the authorities’ decisions, and therefore the Ombudsman did not have sufficient reason to ask the authorities to re-open the case. (Case No. 2000-0830-652).
5.5. Prolonged placement in solitary confinement due to risk of escape
An inmate complained that the Department of Prisons and Probation upheld the state prison’s decision that he was to serve his sentence in solitary confinement, and that the state prison was making the decision to keep him in solitary confinement on a weekly basis. The reason given for these decisions was the risk of escape. Since 1996 the inmate had been placed in solitary confinement for long periods of time because of several escapes from other prisons in the past. The inmate also complained that, as a special condition for the placement in solitary confinement, the department had revoked his permission to spend a limited time with other inmates with reference to considerations of security. The state prison had granted the inmate a dispensation to have a computer in his cell and permission to participate in editing the prison inmates’ magazine.
The inmate maintained that it is the state prison and not the department, which has the power to make decisions on whether or not he should be placed in solitary confinement. Furthermore, he also contended that the state prison was not sufficiently acquainted with him, thereby making the decision on an inadequate basis.
The Ombudsman stated that the power to make decisions concerning placement in solitary confinement is delegated from the Department of Prisons and Probation under the Ministry of Justice to the individual institutions, and that, as the person accountable, the minister may revoke this delegation both generally and in specific cases. Therefore, the Ombudsman found no grounds for criticising the department for taking back its power to make decisions on the relaxation of the conditions under which the inmate served his sentence.
With regard to the decisions on the establishment and continuous maintenance of the placement in solitary confinement the Ombudsman stated that the decisions rested on a concrete assessment and balancing of the risk of escape. In such cases the Ombudsman cannot express criticism unless there are special circumstances, including a lack of sufficient information, on which to make the decision. The Ombudsman did not find such special circumstances when he investigated the decision to place the inmate in solitary confinement, nor with regard to the determination of the conditions for the solitary confinement.
With regard to the procedure in connection with the weekly decisions on whether to maintain the solitary confinement the Ombudsman criticised that the state prison had not kept the duty to take notes, as the state prison’s weekly notes did not contain any concrete information on the prison’s considerations in this regard. There was no written material on the conversations between the inmate and the prison staff. Furthermore, the Ombudsman criticised that it was only following his intervention that the department called attention to the state prison’s non-compliance with the duty to take notes. The Ombudsman informed the department that he assumed that the department would keep track of the inmate’s condition and continuously appraise the possibility of relaxing the terms of the sentence. (Case No. 2001-1520-625).
9.1. Residence permit for unaccompanied child refugee under the Aliens Act
A 17-year old Sri Lankan boy entered Denmark and applied for asylum but was refused. His application for a residence permit under Section 9, subsection (2.4) of the Aliens Act was also refused. The Ministry of the Interior wrote among other things that they did not have certain proof that the boy’s family was not in the native country. The boy was suffering from a post-traumatic stress reaction.
The boy’s lawyer had previously stated that the boy had been told through the Red Cross that his father’s brother in Sri Lanka had had no contact with the family since 1996.
The practice of the authorities with regard to residence permits under Section 9, subsection (2.4) for unaccompanied child refugees is to ensure that the child is not placed in actual danger if he or she is not granted a residence permit. A residence permit is thus granted if the parents are dead or if there is reliable information to the effect that they cannot be located, and when there is no other safe family or social support besides. Furthermore, in some cases a residence permit may be granted if the child needs special care and assistance due to illness.
In light of the inquisitorial principle and the practice on residence permits for unaccompanied child refugees, the Ombudsman asked the Ministry of the Interior for a statement on, among other things, who is responsible for procuring information on any remaining family members in the native country. Furthermore, the Ombudsman asked the ministry to state whether the boy ’s illness could justify a residence permit under Section 9, subsection (2.4).
The Ministry of the Interior then granted the boy a residence permit under Section 9, subsection (2.4) of the Aliens Act. (Case No. 2001-0111-643).
10.2. Reply to application for study leave communicated via electronic mail
In a letter an employee at the Danish Market Management and Intervention Board applied to the board for study leave. The board refused the application in an e-mail communication. The employee denied having received the e-mail.
The Ombudsman stated that the regulations and preparatory works of the Leave Act told against regarding the board’s e-mail as a decision in accordance with the Public Administration Act. Instead, the e-mail must be considered a private disposition.
In the Ombudsman’s opinion he could not on the present basis criticise the Danish Market Management and Intervention Board for replying to the application for study leave through electronic mail. However, the board should either have kept a printout of the e-mail or saved the e-mail electronically.
The Ombudsman’s general opinion was that good administrative behaviour normally requires the appointing authority to provide the employee with the grounds on which they refuse an application for study leave. The Ombudsman had no comment on the grounds given by the board for the refusal, namely that the weeks allocated for study leave had been spent. (Case No. 1999-0370-819).
Disclosure of item in a speech by the prime minister on emergency measures
A journalist complained to the ombudsman concerning the refusal by the prime minister’s department to disclose an item in a speech on emergency measures. The speech item was written by the Ministry of Economic Affairs for use in connection with the prime minister’s oral reply to questions put in parliament. The journalist further complained that the Ministry of Economic Affairs had not even mentioned the existence of the speech item in its refusal to grant access to files.
The refusal by the prime minister’s department was given with reference to the Access to Public Administration Files Act. In the opinion of the Prime Minister’s Department, it was in the necessary interest of the internal political decision-making process to exclude the document in question. The department’s decision was based on a concrete assessment, and the department had considered the principle of increased access to public files in the Access to Public Administration Files Act, but did not think that this provided sufficient grounds for granting access to the item in the speech on emergency measures.
The ombudsman stated that were no grounds for criticising the decision made by the Prime Minister’s Department. The ombudsman noted in particular that the prime minister’ s department had made a concrete assessment with regard to the interest of the political decision-making process and to the Access to Public Administration Files Act.
With reference to, among other things, the fact that there were no grounds for criticising the Prime Minister’s Department, the ombudsman did not carry out an investigation of the complaint concerning the Ministry of Economic Affairs. (Case No. 2000-3900-801 and 2001-0825-201).
15.1. Refusal of application for issue of a haulage contractor’s licence
With effect from 1st January 1997 mud pumping became included in the authorisation requirements of the Haulage Act. A haulage contractor, who had carried out mud pumping since 1973, applied in the middle of 1998 for a haulage contractor’s licence – meaning 18 months after the deadline for such applications.
The Committee on Road Transport refused the application on the grounds that the haulage contractor did not meet the good-conduct requirements according to the Haulage Act because of his breach of the authorisation requirement.
The ombudsman stated that, according to an overall assessment of the case, a decision with such far-reaching consequences for the haulage contractor could not be considered as being in keeping with the principle of proportionality. The legal effects of the decision corresponded to an annulment of a trading licence, and it had severe economic effects for the haulage contractor.
In the ombudsman’s opinion, the assessment of the severity of the appropriate penalty ought to include the fact that, due to an oversight, the haulage contractor did not realise that mud pumping was included in the authorisation requirements.
The ombudsman further stated that regard for maintaining the respect for observing the authorisation system of the Haulage Act and the purpose of the authorisation requirement would hardly provide sufficient grounds for a refusal.
The ombudsman recommended to the Committee on Road Transport that they consider re-opening the case. (Case No. 1999-2571-512).
Newsletter No. 29
SUBSTANTIAL MATTERS
In September 2002 the Danish Parliamentary Ombudsman submitted his Annual Report for the year 2001 to the Danish Parliament, the Folketing. Some key figures from the report are as follows:
3,560 new complaints were received during 2001. In comparison, the corresponding figure for 2000 was 3,390 new cases.
To compare the development in the total number of cases registered during the past ten years, please see the figures below:
1992 | 2,926 |
1993 | 2,943 |
1994 | 2,937 |
1995 | 3,030 |
1996 | 2,914 |
1997 | 3,524 |
1998 | 3,630 |
1999 | 3,423 |
2000 | 3,498 |
2001 | 3,689 |
One hundred individual cases were taken up on my own initiative, jf. Section 17, subsection (1) of the Ombudsman Act. Some individual cases taken up on my own initiative were not fully investigated. Through media debate I had often come across circumstances in the public area, which might require closer investigation. After obtaining relevant information from the administrative bodies involved, I decided whether to undertake an Ombudsman investigation. A few cases concerned merely a look into the legal basis for the administrative practice applied.
In 2001 a general investigation of sixty cases from the Patients’ Complaints Board was commenced as an own-initiative investigation.
The Ombudsman may carry out inspections of public institutions and other administrative bodies. Of the 3,560 new cases in 2001, 29 were inspection cases. The majority of the registered inspection cases relates to institutions managed by the police and the prison service (remand centres, county goals, prisons, etc.) and psychiatric institutions. However, inspections of other administrative bodies were also carried out, for example the Danish Immigration Service and the Copenhagen Central Library.
Some selected examples of cases processed in 2001 are as follows:
Assessment of child maintenance from prison inmate
On 9 June 1999 a woman gave birth to a son. On 18 March 1999 the child’s father had been arrested and subsequently sentenced to prison for 1 year and 9 months. Following the birth of the child the woman asked the state country to assess child maintenance.
On 29 October 1999 the state county decided that the woman’s application for child maintenance could not be granted. On 5 January 2000 the Department of Private Law endorsed the state county’s decision. It appeared that the department based its decision on the assessment that the relationship between the woman and the child’s father had not ceased due to internal incompatibility, and that the department had attached decisive importance to that assessment.
The Ombudsman stated that in the assessment of whether both parents fulfil the maintenance liability in accordance with the Children’s Act, it may enter as a criteria whether a separation is not due to incompatibility but to other circumstances. However, the decision of whether the non-cohabiting parent fulfils his or her maintenance liability in accordance with the act must always rely on a specific assessment in each individual case of the said parent’s fulfilment of the liability seen in relation to his or hers ability to pay the maintenance. A specific assessment of whether a prison inmate fulfils the maintenance liability to the best of his or her ability must also be made in cases where he or she (regardless of the ability to pay or not) are normally supposed to fulfil the maintenance liability in accordance with the Children’s Act where the relationship with the other parent has not been terminated due to incompatibility. The Ombudsman agreed that the question of whether a parent is considered a single parent in relation to other legislation is immaterial to the assessment of whether the other parent fulfils his or her maintenance liability in accordance with the Children’s Act.
The Ombudsman criticised the giving of grounds and the case evidence given by the state county and the Department of Private Law in connection with the decisions. Furthermore, the Ombudsman criticised the case processing time at the Department of Private Law.
In view of the available evidence the Ombudsman did not find sufficient grounds for criticising the result of the authorities’ decisions, and therefore the Ombudsman did not have sufficient reason to ask the authorities to re-open the case. (Case No. 2000-0830-652).
5.5. Prolonged placement in solitary confinement due to risk of escape
An inmate complained that the Department of Prisons and Probation upheld the state prison’s decision that he was to serve his sentence in solitary confinement, and that the state prison was making the decision to keep him in solitary confinement on a weekly basis. The reason given for these decisions was the risk of escape. Since 1996 the inmate had been placed in solitary confinement for long periods of time because of several escapes from other prisons in the past. The inmate also complained that, as a special condition for the placement in solitary confinement, the department had revoked his permission to spend a limited time with other inmates with reference to considerations of security. The state prison had granted the inmate a dispensation to have a computer in his cell and permission to participate in editing the prison inmates’ magazine.
The inmate maintained that it is the state prison and not the department, which has the power to make decisions on whether or not he should be placed in solitary confinement. Furthermore, he also contended that the state prison was not sufficiently acquainted with him, thereby making the decision on an inadequate basis.
The Ombudsman stated that the power to make decisions concerning placement in solitary confinement is delegated from the Department of Prisons and Probation under the Ministry of Justice to the individual institutions, and that, as the person accountable, the minister may revoke this delegation both generally and in specific cases. Therefore, the Ombudsman found no grounds for criticising the department for taking back its power to make decisions on the relaxation of the conditions under which the inmate served his sentence.
With regard to the decisions on the establishment and continuous maintenance of the placement in solitary confinement the Ombudsman stated that the decisions rested on a concrete assessment and balancing of the risk of escape. In such cases the Ombudsman cannot express criticism unless there are special circumstances, including a lack of sufficient information, on which to make the decision. The Ombudsman did not find such special circumstances when he investigated the decision to place the inmate in solitary confinement, nor with regard to the determination of the conditions for the solitary confinement.
With regard to the procedure in connection with the weekly decisions on whether to maintain the solitary confinement the Ombudsman criticised that the state prison had not kept the duty to take notes, as the state prison’s weekly notes did not contain any concrete information on the prison’s considerations in this regard. There was no written material on the conversations between the inmate and the prison staff. Furthermore, the Ombudsman criticised that it was only following his intervention that the department called attention to the state prison’s non-compliance with the duty to take notes. The Ombudsman informed the department that he assumed that the department would keep track of the inmate’s condition and continuously appraise the possibility of relaxing the terms of the sentence. (Case No. 2001-1520-625).
9.1. Residence permit for unaccompanied child refugee under the Aliens Act
A 17-year old Sri Lankan boy entered Denmark and applied for asylum but was refused. His application for a residence permit under Section 9, subsection (2.4) of the Aliens Act was also refused. The Ministry of the Interior wrote among other things that they did not have certain proof that the boy’s family was not in the native country. The boy was suffering from a post-traumatic stress reaction.
The boy’s lawyer had previously stated that the boy had been told through the Red Cross that his father’s brother in Sri Lanka had had no contact with the family since 1996.
The practice of the authorities with regard to residence permits under Section 9, subsection (2.4) for unaccompanied child refugees is to ensure that the child is not placed in actual danger if he or she is not granted a residence permit. A residence permit is thus granted if the parents are dead or if there is reliable information to the effect that they cannot be located, and when there is no other safe family or social support besides. Furthermore, in some cases a residence permit may be granted if the child needs special care and assistance due to illness.
In light of the inquisitorial principle and the practice on residence permits for unaccompanied child refugees, the Ombudsman asked the Ministry of the Interior for a statement on, among other things, who is responsible for procuring information on any remaining family members in the native country. Furthermore, the Ombudsman asked the ministry to state whether the boy ’s illness could justify a residence permit under Section 9, subsection (2.4).
The Ministry of the Interior then granted the boy a residence permit under Section 9, subsection (2.4) of the Aliens Act. (Case No. 2001-0111-643).
10.2. Reply to application for study leave communicated via electronic mail
In a letter an employee at the Danish Market Management and Intervention Board applied to the board for study leave. The board refused the application in an e-mail communication. The employee denied having received the e-mail.
The Ombudsman stated that the regulations and preparatory works of the Leave Act told against regarding the board’s e-mail as a decision in accordance with the Public Administration Act. Instead, the e-mail must be considered a private disposition.
In the Ombudsman’s opinion he could not on the present basis criticise the Danish Market Management and Intervention Board for replying to the application for study leave through electronic mail. However, the board should either have kept a printout of the e-mail or saved the e-mail electronically.
The Ombudsman’s general opinion was that good administrative behaviour normally requires the appointing authority to provide the employee with the grounds on which they refuse an application for study leave. The Ombudsman had no comment on the grounds given by the board for the refusal, namely that the weeks allocated for study leave had been spent. (Case No. 1999-0370-819).
Disclosure of item in a speech by the prime minister on emergency measures
A journalist complained to the ombudsman concerning the refusal by the prime minister’s department to disclose an item in a speech on emergency measures. The speech item was written by the Ministry of Economic Affairs for use in connection with the prime minister’s oral reply to questions put in parliament. The journalist further complained that the Ministry of Economic Affairs had not even mentioned the existence of the speech item in its refusal to grant access to files.
The refusal by the prime minister’s department was given with reference to the Access to Public Administration Files Act. In the opinion of the Prime Minister’s Department, it was in the necessary interest of the internal political decision-making process to exclude the document in question. The department’s decision was based on a concrete assessment, and the department had considered the principle of increased access to public files in the Access to Public Administration Files Act, but did not think that this provided sufficient grounds for granting access to the item in the speech on emergency measures.
The ombudsman stated that were no grounds for criticising the decision made by the Prime Minister’s Department. The ombudsman noted in particular that the prime minister’ s department had made a concrete assessment with regard to the interest of the political decision-making process and to the Access to Public Administration Files Act.
With reference to, among other things, the fact that there were no grounds for criticising the Prime Minister’s Department, the ombudsman did not carry out an investigation of the complaint concerning the Ministry of Economic Affairs. (Case No. 2000-3900-801 and 2001-0825-201).
15.1. Refusal of application for issue of a haulage contractor’s licence
With effect from 1st January 1997 mud pumping became included in the authorisation requirements of the Haulage Act. A haulage contractor, who had carried out mud pumping since 1973, applied in the middle of 1998 for a haulage contractor’s licence – meaning 18 months after the deadline for such applications.
The Committee on Road Transport refused the application on the grounds that the haulage contractor did not meet the good-conduct requirements according to the Haulage Act because of his breach of the authorisation requirement.
The ombudsman stated that, according to an overall assessment of the case, a decision with such far-reaching consequences for the haulage contractor could not be considered as being in keeping with the principle of proportionality. The legal effects of the decision corresponded to an annulment of a trading licence, and it had severe economic effects for the haulage contractor.
In the ombudsman’s opinion, the assessment of the severity of the appropriate penalty ought to include the fact that, due to an oversight, the haulage contractor did not realise that mud pumping was included in the authorisation requirements.
The ombudsman further stated that regard for maintaining the respect for observing the authorisation system of the Haulage Act and the purpose of the authorisation requirement would hardly provide sufficient grounds for a refusal.
The ombudsman recommended to the Committee on Road Transport that they consider re-opening the case. (Case No. 1999-2571-512).
