Annual Report 2020

The Danish Parliamentary Ombudsman has been elected by Parliament. His task is to help ensure that administrative authorities act in accordance with the law and good administrative practice, thus protecting citizens’ rights vis-à-vis the authorities. The Ombudsman investigates complaints, opens cases on his own initiative and carries out monitoring visits.

Annual Report The Danish Parliamentary Ombudsman Gammeltorv 22 DK-1457 København K Phone +45 33 13 25 12 2020 en.ombudsmanden.dk www.ombudsmanden.dk [email protected] This page has been intentionally left blank. Dear Reader,

In accordance with the Ombudsman Act, the Danish Parliamentary Ombuds- man submits an annual report on his work to the Danish Parliament. In previous years, all parts of the Ombudsman’s annual reports, together with summaries of statements on selected cases, were translated into English. As something new, the 2020 Annual Report of the Danish Parliamentary Ombudsman will be published in a special international edition. This report seeks to communicate in a more targeted way to colleagues, collaborative partners and other interested parties in other countries. The aim of the new format is to support the Danish Parliamentary Ombudsman’s long tradition of sharing information and experiences internationally with colleagues and others with a special interest in ombudsman work. This report contains elements from our Danish report but also elements that are unique to this international version.

2020 was an extraordinary and difcult year – as in the rest of the world. More- over, we received more complaints than ever before. Still, we managed to process more cases than in previous years and reduce our average case handling time. On the following pages, I will cover some of our most important cases in 2020. This report also contains articles about central issues which we looked into in a year characterised by COVID-19. In one article, for instance, we will share some of our experiences in relation to openness in the public administration in a pandemic – an issue which several ombudsman institutions around the world have looked into.

Because of the great diversity of ombudsman institutions around the world, we have included, as something new, an appendix which will enable readers with a special interest to get a deeper understanding of the Danish Ombudsman institution.

Enjoy the read!

Niels Fenger Parliamentary Ombudsman Published by The Danish Parliamentary Ombudsman Gammeltorv 22 DK-1457 København K

Printed by Rosendahls a/s, Copenhagen E-mail: [email protected]

Printed in Denmark 2021 Also available in PDF format on en.ombudsmanden.dk

Graphic design Conduce Umano (infographics on pages 17, 20, 23, 30, 32, 38, 40, 41, 48, 49, 78 and 79)

Photographer Jasper Carlberg

ISSN 1902-0120 Contents

2020 at the Ombudsman Ofce Niels Fenger, Parliamentary Ombudsman ...... 4

About the cases Complaint cases ...... 20 Own-initiative investigations ...... 30 Monitoring activities ...... 38

Articles Openness in a pandemic Kirsten Talevski, Senior Head of Division, and Mai Gori, Legal Case Ofcer ...... 52

Getting the access to fles case on the right track Stephan Andreas Damgaard, Deputy Head of Division ...... 58

Monitoring activities: Institution status may provide questionable legal authority Kaj Larsen, Chief Legal Advisor ...... 64

Brief overview of the year The year in fgures ...... 72 Extracts from news stories published on the Ombudsman’s website in 2020 ..... 82 Statement of revenue and expenditure 2020 ...... 84 Organisation ...... 88

Appendix General information about the Danish Parliamentary Ombudsman and about monitoring visits under the OPCAT mandate ...... 96 at the Ombudsman Ofce 2020By Niels Fenger, Parliamentary Ombudsman | 5

The year 2020 was my frst full year as At the same time it is clear that if you use Ombudsman. As for everybody else, it was of resources in one place, you will have to course marked by COVID-19. Also the staf economise in other places. Until now, we have members of the Ombudsman Ofce have had been able to start up just about as many own- to work from home – and that already three initiative cases as in previous years. But we have months after I took up the post, and before I not had the capacity to start up all the own- had become quite familiar with the staf and the initiative cases which we would have wanted in building. COVID-19 has been a long, continuous an optimal situation. And I fnd that to be a bit pressure test, also here at the Ombudsman of a shame, really. Because it is often through Ofce. But despite the challenges we have the own-initiative cases that the Ombudsman never processed more cases than in 2020 can deliver maximum legal protection. My aim is where we concluded 6,207 cases, of which that we will be able to give higher priority to the 5,924 were complaint cases. I am very proud own-initiative cases over the coming years. of how well my staf have tackled the difcult situation. Over the next pages, I will cover some of the most important cases from 2020. Some We received 5,707 complaints in 2020. That is because they concerned matters of legal an increase of more than 300 complaints, or 6 principle and others because they were of per cent in comparison to 2019. If we look at the great practical importance to many citizens. development from 2018 till 2020, the number In several of the cases I have had a diferent of complaints has risen by more than 900, or conception of the law from that of the as much as 19 per cent. That has had a notable authorities. In those cases I have often chosen efect. That is why our work in 2020 has been not only to look back in time and give criticism, 2020 dictated by the complaint cases to an even but also to try and help the authorities to higher degree than before. understand what they should do better next time. Because it can never be a goal in itself The Ombudsman Ofce’s task is not only to look for errors and to regulate through to help ensure good administration by the criticism. The aim must always be to fnd authorities. We must also show the way in solutions to a case – and the authorities did that respect. It is not fair to the complainants, accept my recommendations in the mentioned if we do not process their cases within a cases. The Ombudsman should continue to reasonable time frame. At the same time, our be a constructive partner for the authorities right to criticise the authorities for slowness is in the efort to ensure and maintain and undeniably greater if our own processing times further extend the high legal protection in the are good. In 2020, we therefore invested a lot administration. of resources in ensuring quick processing of as many cases as possible. And actually – despite Cases involving access to public the increased number of cases, and sending the administration fles staf home due to COVID-19 – we did succeed One of the acts on which the Ombudsman has in reducing our case processing time a little. We traditionally had a special focus is the Access are really quite proud of that. to Public Administration Files Act. The public’s 6 | Annual Report 2020

access to insight into the administration is one itician, even though it concerns a subject that is of the foundations for a well-functioning democ- also being processed in the ministry. racy, for freedom of information and expression and for the monitoring of the authorities by the In another case, the subject was how to estab- media and the public. Quantitatively, we have lish whether correspondence etc. of a public fewer cases on access to public fles than many employee is private or covered by the Access to probably think. On the other hand, they often Public Administration Files Act (Case No. 2020- involve matters of legal principle. 39). If a public employee sends an e-mail about a family birthday, then it is undoubtedly private The Access to Public Administration Files Act – and thereby not subject to access to public applies to ‘documents sent to or set up by an administration fles – even though the e-mail is authority etc. as part of administrative case sent from the workplace, during working hours processing in connection with the authority’s and from a work e-mail. But in other instances, activities’. But what about documents which it can be difcult to assess whether a message concern government ministers’ and their is private or not. This is particularly the case if special advisers’ communication with their the message concerns a subject which touches political parties? Are such documents and such on the employee’s area of work, and where the information covered by the Access to Public public employee at the same time has both a Administration Files Act, or do these involve work-related and a non-work-related connec- party political activity which can be exempted tion with the person he or she is corresponding from public insight? with. A journalist asked for access to messages exchanged between the former chief of staf at A journalist had asked the Prime Minister’s the Prime Minister’s Ofce and a political com- Ofce for access to e-mails which had been mentator. The Prime Minister’s Ofce refused exchanged between special advisers in a num- to give access to the correspondence on the ber of Government Ministries on the one hand grounds that the chief of staf and the commen- and Members of Parliament and staf from the tator were private friends, and the messages Social Democratic Party on the other (Case No. had to be considered as private correspond- 2020-41, published in Danish at www.ombuds- ence which was not subject to the Access to manden.dk). The e-mail correspondence con- Public Administration Files Act. After I had read cerned the coordination of political messages the messages, I could not set aside the assess- and initiatives etc. in connection with a government of the Prime Minister’s Ofce. I acknowl- ment proposal for a reform of the municipal edged that friends can speak privately about a fscal equalisation scheme etc. The Prime matter to which they both have a work-related Minister’s Ofce had refused to grant access connection. But I stressed at the same time to the e-mails, and I could not criticise that, as that the fact that you are friends does not in the special advisers had solely corresponded itself mean that the communication is private in in connection with the Prime Minister’s function relation to the Access to Public Administration as a party politician but not (also) her function Files Act. And I set out a number of indicators to as leader of the Government or administrative assess whether the correspondence of a public head. The case shows that a document can be employee is private or not; indicators, which related to the minister’s function as a party pol- should ensure that the delimitation between | 7 8 | Annual Report 2020

private and work-related correspondence is the common administrative law principles of not determined in such a way that the right of equality, objectivity and duty to tell the truth. access to public administration fles risks being This also applies to press releases. They are eroded. usually relatively brief and can therefore not always be exhaustive in all respects but the Other of the more important cases in 2020 contents must still be true and fair. This means within the feld of access to public administra- that there are limits to how far public authorities tion fles concerned how broadly an applicant can go as regards professional spin, when they can delimit a request for access to public ad- are making a statement to the press. ministration fles, and the phenomenon which I called ‘concealed delimitation’ on the part of These limits were in my opinion crossed in a the authorities. Those cases are covered in the press release which the Danish Tax Agency article ‘Getting the access to fles case on the issued on the so-called refund of dividends tax right track’ (page 58). case (Case No. 2020-46). This was because the press release gave the impression that There are limits to how far public authorities the National Audit Ofce had assessed can go as regards professional spin, when partly that a concrete they are making a statement to the press. settlement in the refund of dividends tax case was lawful, and We have also had a number of signifcant cases partly that the Danish Tax Agency’s statements on access to public fles which in one way or an- in the media were justifed. However, the Nation- other concerned COVID-19. Information about al Audit Ofce had only stated that the Danish those cases can be found in the article ‘Open- Tax Agency could enter into a settlement but ness in a pandemic’ (page 52). had not taken a position on the specifc settlement or on the Danish Tax Agency’s statements Public authorities and the press in the media. Obviously, we citizens do not get information about the public administration solely via re- Also in another respect will administrative law’s quests for access to public administration fles. objectivity principles limit how an authority can It is also an important job for the public adminis- act in relation to the media. A journalist had tration to communicate with the public on its written an article on accusations of ofensive own initiative. An authority may for instance behaviour at a committee meeting in Slagelse reply to criticism in the press, correct erroneous Municipality. In the article, the journalist men- statements and explain its actions. tioned the names of the male committee members. The mayor of the municipality was of the The individual authorities have quite a wide opinion that the journalist thereby threw suspi- scope for how they want to communicate with cion on named individuals, and in that context the public. But regardless of how an authority he wrote several e-mails to both the journalist communicates, it is still crucial that it observes and the medium’s management. In one of the 2020 at the Ombudsman Ofce | 9

e-mails he wrote as follows, among other things: The overall conclusion in our thematic report ‘(…) it is in every way very, very bad! It makes was that the Prison and Probation Service gener- me consider terminating all cooperation’. I took ally does a good job. But also that the Prison and up the case on my own initiative and stated Probation Service to an (even) higher degree that there may certainly be situations where should safeguard the legal rights of inmates. there is an objective reason why an authority Thus, in several instances our visiting teams contacts a journalist or a medium’s manage- spoke with inmates who had not understood ment. For instance, if the authority believes that what was going on during their interrogation. the journalist has misunderstood something or Consequently, they did not know that they were has written something which is factually wrong entitled to assistance during the interrogation, in an article. However, the authority’s contact and to complain about the decision. In 6 out of must not appear as an act of pressure. And the 17 monitoring visits, the visiting team recom- mayor’s e-mail did just that. The e-mail thereby mended that interpreters be used to a higher crossed the line of how an authority should act. degree. In 15 out of 17 monitoring visits, the (Case No. 2020-42). visiting team recommended that management ensure an increased focus on documenting that Life in public institutions the decision was correct. The visited institutions Every year, the Ombudsman carries out a con- were focused on the risk of adverse psychologi- siderable number of monitoring visits to public cal efects from disciplinary cell placement. But I institutions (and in the children’s sector, also recommended that they lay down guidelines for certain private institutions). We investigate the way in which adverse psychological efects among other things whether persons who have can be prevented, and what staf can and should been voluntarily committed or deprived of their do when an inmate shows signs of sufering ad- liberty are treated lawfully, humanely and com- verse efects. passionately. We also looked into the COVID-19 measures in Each year, we select a theme which will be the the state and local prisons and halfway houses common thread for that year’s monitoring activ- under the Prison and Probation Service in a ities. In 2020, I published a thematic report on number of visits in 2020. I stressed in one of legal protection for inmates placed in discipli- several statements on the subject that the nary cells. We had chosen this particular sub- Prison and Probation Service’s otherwise valid ject because there has been a great increase eforts to keep the contagion out of state and in the use of disciplinary cells in recent years, local prisons and halfway houses had had no- because it is very intrusive to be placed in a table consequences for inmates and residents. disciplinary cell, and because placement in a They had thus been cut of from, among other disciplinary cell carries the risk of adverse psy- things, occupation, leave and visits. I therefore chological efects. It is therefore important that recommended that the Prison and Probation inmates know about their rights, that there is Service evaluate the experiences and assess documentation that the decision is correct, and whether any future pandemic can be handled that adverse psychological efects are sought efectively but at the same time under less to be prevented. restrictive conditions. For the same reason I fnd it very positive that the Prison and Probation 10 | Annual Report 2020

Service has subsequently been focused on has a special obligation towards the weaker evaluating the experiences from the COVID-19 social groups who cannot fght for their rights period with a view to handling the continued themselves. By an amendment of the Om- outbreak of COVID-19 in an efective way and at budsman Act in 2012, a specialised Children’s the same time under less restrictive conditions, Division was established to monitor whether if possible, than was the case in the spring of the rights of children are observed. We receive 2020. complaints involving children in all types of life situations. But our monitoring of the children’s Later in the year, I pointed out that there could sector is especially focused on children in a vul- be reasons for considering whether new inmates nerable life situation where their rights may be should be tested or screened. It is therefore under pressure. This concerns, among others, positive that it now appears from the contin- children who are placed in an institution. gency plans from the Department of Prisons and Probation regarding It is unsatisfactory that many children state and local prisons attending in-house schools in placement that new inmates must be screened and they must facilities do not get the education they are not, as far as possible, be entitled to. placed in a double occu- pancy cell. Furthermore, the individual institution must prepare proce- In 2020, we published our monitoring thematic dures for screening with a quick test or a PCR report on younger children placed in social test when the institution receives new inmates. care, meaning children placed in accommoda- It also appears that a quick test may be used tion facilities or open residential institutions, when inmates are tested in connection with pursuant to the Social Services Act. The vast transfers or following leave. majority of accommodation facilities and residential institutions do a good job. But at the same In connection with our monitoring visits, we time, one of our main conclusions was that have in addition found a large number of insti- several of the visited facilities and institutions tutions with internal rules and practices which lacked sufcient knowledge of the rules on the made interventions towards residents possible. use of physical force etc., and of how force is In wards for adult psychiatric patients, among used most considerately. Another important other places, there were house rules which conclusion was that all in-house schools except allowed for interventions towards patients with- one were struggling when it came to observing out having the required legal authority. Further the rules on teaching the children the full range information can be found in the article ‘Moni- of subjects, on the number of class hours per toring activities: Institution status may provide year as well as the rules on exemption from questionable legal authority’ on page 64. subjects, compulsory tests and lower secondary school examinations. It is unsatisfactory Children that many children attending in-house schools The Ombudsman must be a safeguard for in placement facilities do not get the education everybody’s legal rights. But the Ombudsman they are entitled to. Research has shown that 2020 at the Ombudsman Ofce | 11

education is one of the most important factors in The subject in one of the cases where I was ensuring that children who have previously been particularly pleased that the Ombudsman placed in care will have a normal life as adults. institution was able to help was what documentation can be demanded from, among others, We have also investigated an important case the homeless when they are required to show on the return to their home of three children that they have resided in Denmark for the last placed in care. Cases on returning children to nine years out of ten and thereby are qualifed their home are normally raised as own-initiative to receive cash benefts (Case No. 2020-7). cases, as children and parents seldom com- Here, both the National Social Appeals Board plain about such decisions. Returning a child and several municipalities had previously placed in care to the parents is a decision which attached decisive importance to the applicant may have far-reaching consequences for the being able to show proof of having resided in child. That is why the municipality must ensure Denmark in the individual calendar months for that it is the right decision for the child. The the whole of the relevant period, typically in the municipality must frst have a consultation with form of documents or digital traces such as the child and work out an action plan for the bank entries or contact with public authorities child’s future, and then give children over the or institutions. I pointed out that vulnerable citi- age of 12 a decision with grounds and guidance zens with a fragile connection with society may on complaint. In several instances, Langeland have great difculty in documenting ten years Municipality had not lived up to these funda- back, month by month, that they have been in mental requirements. I characterised the case Denmark. And the demands for documentation processing as very regrettable overall. And I must be adjusted to refect this. I recommended emphasised that children and young people that the authorities change the practice so that placed in care do not always have the same they in future carry out an overall assessment support from parents and family as do other of whether there is particular reason to believe children. They may even be in a confict of that a citizen has been out of the country for a loyalty in relation to the parents. It is therefore longer period. My statement led to a change in crucial that the municipalities live up to the rules the National Social Appeals Board’s practice, before they decide to return a child or young and both the Board and, among others, City person to the home. of Copenhagen reopened a major number of cases. Social benefts cases Complaints about social benefts etc. make up The tax sector a lot of the Ombudsman’s cases. Many of the Through a grant from Parliament, we estab- cases concern specialist assessments of for lished a specialised Tax Division in 2017. In instance a medical nature where the Ombuds- 2020, we received about 335 complaints man institution does not possess specialist regarding tax matters. However, the majority of expertise, and where on those grounds alone the Tax Division’s resources are focused on own I am very seldom able to set aside the author- initiatives. We start between 25 and 30 own- ities’ assessments. However, there are also a initiative investigations every year, often in the considerable number of cases where we are form of general investigations of multiple cases able to make a diference. in order to search for systemic errors. 12 | Annual Report 2020

It almost goes without saying that our focus information in one’s preliminary income as- on tax cases means that we have quite a lot of sessment and tax assessment notice. The Tax cases involving the tax sector. However, it is not Administration can, however, bar a taxpayer our general impression that the tax authorities from access if there is an obvious risk that the fnd it more difcult than other authorities to taxpayer commits signifcant errors or abuses observe the legislation. We have a good collabo- the E-Tax function. We obtained 40 randomly ration with the tax authorities who take our selected cases where the Tax Administration recommendations seriously and often start to had barred the taxpayer from access to E-Tax, solve the problems we are investigating, even and we found a number of problems in the before we have concluded our investigations. authorities’ processing of the cases. By way of example, it was a question in a number of cases In 2020, our focus regarding tax matters was on whether the taxpayers had been informed of the grounds given by the tax authorities in their the decisions. Furthermore, several of the cases decisions to citizens and companies. That is be- had been processed based on an erroneous cause good grounds provide a better guarantee understanding of the rules, and the grounds that the decision is correct. Good grounds can were insufcient. As a consequence of our also help the citizen to a better understanding investigation, the Danish Tax Agency decided of the decision and perhaps an assessment of to annul all its decisions to bar taxpayers from whether there is reason to appeal the decision E-Tax concerning tax assessment notices for to a higher authority. Our investigations indicate 2018 and 2019. that the decisions by the tax authorities in most cases basically fulfl the requirements for Digitisation of public administration grounds set out in the Act on Public Administra- Digitisation of public administration is one of tion. However, we also found a number of exam- my focus areas. This is because it is a system ples of grounds which did not live up to the rules of administration which is becoming more and in the Act in all respects. These instances were, more important, and where any errors can have among others, the grounds given by the Debt consequences for a large number of citizens. As Collection Agency in decisions regarding set- I described in the Ombudsman’s Annual Report ting of debts (Case No. 2020-27) and grounds for 2019, good digital systems can bring signif- given in cases regarding estimated increases of icant benefts to both citizens and companies, tax assessments (Case No. 2020-40). In these and they can save resources for the public ad- two cases, the authorities have stated that they ministration. At the same time, it is my impres- are working on new letter templates in order to sion that the authorities have become better take my comments into account. at designing digital solutions in such a way that these comply with legislative requirements. One case which demonstrated the value of Unfortunately, however, it still happens that our general own-initiative investigations (Case even fundamental guarantees of administrative No. 2020-28) concerned the access by the law are overlooked during the development of Tax Administration to barring taxpayers from the system. using the online self-service system, E-Tax (in Danish TastSelv). In general, taxpayers have We discovered in the autumn that if parents the possibility of using the Tax Administration’s disagree about for instance parental custody online self-service system E-Tax to change the and want to start a case at the Agency of Family 2020 at the Ombudsman Ofce | 13

Law, then it is compulsory to use the Agency’s es will be brought against them (Case No. 2020- digital self-service solution. However, the digital 34). In this case, I also asked the authorities to self-service solution did not allow for a personal reduce the processing time considerably. representative, such as a lawyer, to start up a case. And that is contrary to the Public Admin- Not least when the processing times are long, istration Act. After I addressed the problem, the it is important that the authority notifes the authorities stated that they would solve the prob - citizens of the status of their case and about the lem as soon as possible, and that until then, they expected processing time. Also in this respect will ensure that citizens wishing to let a personal the Tax Appeals Agency has experienced chal- representative initiate a case will get the oppor- lenges. In an investigation of 20 cases (Case No. tunity to do so in another way than via the digital 2020-2), I found that the Tax Appeals Agency self-service solution of the Agency of Family Law. had missed the mark by between 16 and 49 months in relation to the actual processing time. Case processing times The Tax Appeals Agency has stated that it will As Ombudsman, you get quite a good panoramic implement initiatives to improve its notifcation view of all of the public administration. And judg- in the cases. ing from the more than 6,000 cases we have processed while I have been Ombudsman, I am In addition to this, I have pointed out problems convinced that, collectively, we can be satisfed with the processing times in, among others, var- with the Danish public administration. ious health authorities with regard to requests for access to public administration fles, and In almost all the cases that land on my desk, it is with processing times in the Danish Immigration my impression that the administration has act- Appeals Board, the Building Appeals Unit, the ed with the best intentions. In by far the majority Danish Town and Country Planning Board of of the cases, I cannot fault the result of the de- Appeal and the Danish Environment and Food cision. I see a number of case processing errors Board of Appeal. The latter boards of appeal which have no infuence on the outcome of the were established with the Danish Appeals case. Only in a relatively small percentage of Boards Authority in 2017 in connection with the cases, I disagree with the sort of outcome the delocalisation of state workplaces. And in con- case should have. nection with the reorganisation of an authority, temporary case backlogs can, of course, In contrast, I also see that the processing times arise. However, the problems had continued, of several authorities are unsatisfactory. In a and at the end of 2019 the expectation at the number of appeals boards the processing times Environment and Food Board of Appeal was are several years. that a number of cases would have an average processing time of about 4.5 years (Case No. Two citizens had waited for more than fve years 2020-13). That was in my opinion unacceptable. for a decision from the Tax Appeals Agency, and a third citizen had waited for almost four I am sure that the individual case ofcers are years. This is in my opinion an unacceptable working diligently, and that the management at processing time. I have pointed out in another the various institutions are doing what they can. case that taxpayers sometimes have to wait for But from the perspective of the citizens, the several years to be told whether criminal charg- situation in several authorities is unsatisfactory. 14 | Annual Report 2020

Thankfully, there are also positive stories. For mink culling case. As far as the frst-mentioned some years, it had taken the National Social case was concerned, the central question was Appeals Board too long to process reports from whether there was so-called public authority citizens who were worried about the well-being disqualifcation on the part of the secretariat of of children and young people. But in the spring the Radio and Television Board. After a quite of 2020, I was pleased to see that the Board had thorough review of the available information on managed to reduce processing times consider- the case, I found that it was unlikely that I would ably so that deadlines could be observed. be able, through an in-depth investigation, to establish that this was so. Freedom of speech for public sector employees As far as the mink culling case was concerned, The protection of the rights of public sector the reason why I did not take up the case was employees constitutes an important case area that a majority of the parties in Parliament had for the Ombudsman. In two cases, DSB (Danish agreed to mount a special investigation of the Railways) had given warnings to two employees matter. And it is not the practice that the Om- who in various situations had criticised DSB’s budsman, in a situation where Parliament has management during an industrial dispute in decided to carry out an independent investiga- 2018 and 2019. In a blog entry, a train driver had tion of a particular course of events, carries out among other things called a proposal from DSB for ‘a slaughter of the shop steward system not seen Public employers must tolerate criticism before in Danish history’ from the employees to a wide extent. (Case No. 2020-36). And in an interview an engine driver had called the DSB board and manage- a parallel investigation of the same course of ment ‘incompetent’ (Case No. 2020-47). It is events. Besides, an Ombudsman investigation true that the statements were polemic and will be directed at the authorities as such and sharp. However, public employers must tolerate will not be able to place a possible personal criticism from the employees to a wide extent. responsibility on the individuals involved in the This is no less true during an industrial dispute, matter. where there will inevitably be situations where the parties disagree to a greater or lesser Law and ethics extent, and where people can blurt things out in This was a small selection of a great number the heat of the moment. of cases that we have processed here at the Ombudsman Ofce over the past year. I cannot The mink culling case and the always give complainants what they are hoping Radio24syv case for, and I must sometimes tell authorities that Lastly, the year was also marked by the cases their actions are open to criticism. This is the I did not take up. Some have wondered why I way it has to be when my task is to assess, in an did not intervene in the case of Radio24syv, objective and unbiased way, whether the public others why I did not start an investigation of the administration has observed the law. 2020 at the Ombudsman Ofce | 15

But I hope that everybody – also those who have not won the argument – have felt that we have listened to their views and processed their case thoroughly and fairly. It is important, both for the authorities and the Ombudsman Ofce, never to forget that anyone exercising public power must not only act correctly according to the law. You must also remember that you are making decisions for fesh-and-blood people who deserve respect, proper treatment and empathy. About the cases Complaint cases Own-initiative investigations Monitoring activities This page has been intentionally left blank. | 19

Cases opened in 20201 5,912

1) Administrative cases are not included. In addition, cases selected for collective review in connection complaint cases with general own-initiative investigations are not normally included. 5,707 own-initiative 165 investigations monitoring 40 cases

5,912

6,000 4,909

5,000 5,607

4,000 4,990 4,999 5,045 5,026 4,878 4,774 4,542

3,000

2,000 Developments in number of cases opened 1,000

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Complaint cases | 21

Who: In general, anybody can complain to the How: When the Ombudsman receives a com- Ombudsman, and it is not necessary to be a plaint, he frst determines whether it ofers suf- party to a case to lodge a complaint with the cient cause for investigation. In some cases, the Ombudsman. A complainant cannot be anon- Ombudsman is unable to consider a complaint, ymous. whereas in other cases, he chooses not to open an investigation, for instance because he would What: The Ombudsman considers complaints not be able to help the complainant achieve a about all parts of the public administration and better outcome. in a limited number of situations also about private institutions, an example being complaints In a large proportion of complaint cases, the about conditions for children in private institu- Ombudsman helps the citizen by providing tions. guidance or by forwarding the complaint to the relevant authority, for instance in order that the Complaint The Ombudsman does not consider complaints authority will be able to consider the complaint about courts, nor about tribunals which make or give the citizen more details of the grounds decisions on disputes between private parties. for a decision which it has made in the case.

When: The Ombudsman’s task is to ensure that In a number of cases, the Ombudsman discon- the authorities have observed the applicable tinues his investigation because the authority cases ru les. For this reason, the Ombudsman cannot chooses to reopen the case, for instance after con sider cases at frst instance; he can consider being asked for a statement on the matter by a complaint only if the case has been considered the Ombudsman. by the relevant authority – and by any appeals bodies. In some complaint cases, the Ombudsman carries out a full investigation, which, among other There is a deadline of one year for complaints things, involves obtaining statements from the to the Ombudsman. authority and the complainant. The investigation may result in the Ombudsman choosing to criticise the authority and, for instance, recommend that it make a new decision on the matter. 22 | Annual Report 2020

What were the complaints about?

Access to public records under the Ac- turbines and telephone masts. The complaints cess to Public Administration Files Act, typically concern issues relating to compliance the Environmental Information Act etc. with rules on environmental protection and The complaints under this heading are primarily building legislation. about refusals by authorities to give access to information or documents and about proces- Personnel matters (including freedom of sing times. A large proportion of the complaints expression) are against the central government. The majority of complaints about personnel matters are from public employees who are Children dissatisfed with a negative reaction from their The Ombudsman’s Children’s Division receives employer, such as dismissal, a warning or a complaints from children and young people, but reprimand. A small proportion of complaints the complaints lodged with the Ombudsman in relate to the freedom of expression of public relation to children are especially from parents employees. These complaints are made mainly or from other relatives or caregivers. Many com- by afected employees or their union. plaints are about support measures for children and young people. The Ombudsman also re- Taxation ceives a number of complaints about family law Complaints relating to taxation are handled by matters or relating to schools. the Ombudsman’s Taxation Division. They are received from citizens and businesses, includ- Institutions for adults ing professional representatives of complain- The institutions which these complaints concern ants, such as practising lawyers specialised in include prisons, psychiatric wards and institu- tax law and accountants. Examples of the sub- tions for adults with disabilities. As residents and ject matter of complaints include tax assess- inmates typically spend 24 hours a day in the in- ments, debt collection, property assessments stitution, the complaints cover all aspects of life. and long processing times. Examples are contact with relatives and friends, the food available in the institution or feelings of Social benefts and services unsafety because of other residents or inmates. Complaints concerning social benefts and services account for a large proportion of the Environment and building complaints received by the Ombudsman. The Many complaints under this heading are made majority of these complaints involve municipali- by dissatisfed neighbours. Complaints may be ties, Udbetaling Danmark (an authority respon- about, for instance, loss of privacy due to over- sible for a number of public benefts) or the looking from a building, smells from a pig farm National Social Appeals Board and are about, or noise from a school. The Ombudsman also for instance, pensions, home help, cash beneft, receives a number of complaints about wind accompaniment or technical aids. Complaint cases | 23

Transport, communication and roads Foreign nationals A substantial proportion of complaints under These cases account for a relatively small this heading are about public roads or private proportion of the complaints received by the communal roads. Examples of situations which Ombudsman. A number of complaints under give rise to complaints are neighbour disputes this heading are about long processing times. or dissatisfaction with an order by a municipal- In addition, the Ombudsman receives com- ity to maintain or provide access to a private plaints from foreign nationals who are required communal road. Other complaints concern, for to reside at a departure centre and complaints instance, public digital self-service solutions or about, among other things, refusals of appli- media licence fees. cations for humanitarian residence permits, family reunifcation and visas.

Complaint cases 22% 19%

10% 7% 6% 6%

2% 3% 3%

Children Taxation

Foreign nationals cation and roads Institutions for adults Transport, communi Access to public records Environment and buildingfreedom of expression) under the Access to Public Personnel matters (including Social benefts and services Administration Files Act etc.

Selected subject areas of complaints as percentages of all complaints received by the Ombudsman in 2020 24 | Annual Report 2020

Still more complaints for the Ombudsman

Increase in complaints: A total of 5,707 com- Nor can you say that there are more complaints plaints were delivered to the Ombudsman Ofce about certain parts of the public administration. in 2020, so the upward trend continues. The percentage of complaints which lead to a In 2018, the Ombudsman received 4,798 com- full ombudsman investigation and ultimately the plaints, and in 2019 the fgure rose to 5,368. possibility of criticism has been at the same level Thus, from 2018 till 2020 there has been a rise during the years mentioned. in the number of complaints of 19 per cent. By far the majority of the citizens who contact The explanation is not clear-cut. The complaints the Ombudsman fll in the complaint form on the are spread evenly over most types of cases. website or send an e-mail.

Traces of COVID‑19 in the complaints of the year

Pandemic: The COVID-19 agenda has been another approximately 20 complaints about the refected in many of the complaints received by government’s decision to cull all mink. the Ombudsman. Social media contributed to more than 150 For example, one individual complained that inmates and relatives complaining to the Om- the border against Germany was closed in the budsman. They were discontented with the spring, another complained about the Ministry Prison and Probation Service’s restrictions, and of Foreign Afairs’ travel guidelines, and a num- several complainants called on the Ombudsman ber of people complained about the health au- to grant interruption of sentence. Among other thorities’ decisions about access to public fles things, the Ombudsman stated the following in a and processing times in that connection. news article:

In addition, approximately 20 people com- ‘(…) Unfortunately, it seems that an idea has plained about restrictions or other matters in the spread in the Danish prisons that the Ombuds- children’s sector as a result of COVID-19, such man can grant interruption of sentence. I am as the charging of payment for day care and not able to do so.’ Instead, Ombudsman Niels suspension of visits to children placed in out- Fenger encouraged the inmates and relatives to of-home care. In the course of November and contact the Prison and Probation Service frst. December 2020, the Ombudsman received Article: Openness in a pandemic, page 52

‘Unfortunately, it seems that an idea has spread in the Danish prisons that the Ombudsman can grant interruption of sentence. I am not able to do so.’ Complaint cases | 25

Criticism of ‘concealed delimitation’

Dialogue on access to fles: Two of Niels ‘Concealed delimitation’, the Ombudsman Fenger’s frst statements as Ombudsman con- called the unfortunate approach. In two quite tained criticism of the way in which two minis- diferent instances, journalists had asked a min- tries had processed cases on access to public istry for access to fles on a subject. The minis- fles: try had then interpreted the journalists’ request narrowly – as if the journalists were only inter- ‘(…) If the public authorities carry out a very nar- ested in certain parts of the subject. row delimitation of a request for access to public fles without informing the journalist about it, the Article: Getting the access to fles case on the result for the journalist will in reality be the same right track, page 58 as if the authority concealed the information. That of course will not do,’ said the Ombudsman in a news item.

Facebook group set of a complaint storm

Frozen holiday funds: In quite few days in In August, Parliament decided that up to three June, the Ombudsman suddenly became busy weeks of the frozen holiday funds could be paid processing almost identical complaints over the out to those who requested it. new rules about frozen holiday funds. Apparent- ly, a Facebook group had encouraged people to complain about the freezing of holiday funds. Around 75 people complained in the course of a few days, where they asked for help with having their holiday funds paid out. The Parliamentary Ombudsman can only However, the Parliamentary Ombudsman can only consider complaints about the public ad- consider complaints about ministration – not about Parliament or any law. the public administration Therefore, in addition to responding to every single complaint, the Ombudsman quickly is- – not about Parliament or sued a press release emphasising that he could any law. do nothing to help. 2020 26 | Annual Report 2020

Many complaints about the Agency of Family Law

Children’s cases: Just under 140 complaints A lawyer complained about the Agency’s manda- were sent to the Ombudsman concerning the tory self-service solution. The problem was that Agency of Family Law in 2020. The Agency, the lawyer was often asked by clients to start which on 1 April 2019 took over the family law a custody case with the Agency but the self- cases from the Regional State Administration, service solution did not allow for the possibility has therefore taken up a lot of resources at the of having somebody represent you, such as a Ombudsman’s Children’s Division. Many parents lawyer – something that must be possible. have complained about long processing times, but also about other subjects. The Ombudsman has emphasised several times the importance of digital solutions being desig ned from the start in such a way that they comply with the requirements of administrative law.

Public employees can also be private

Private correspondence: ‘(…) It is, however, im- the two were friends, and that the correspond- portant for me to say that all public employees ence was private. After seeing the messages, should be aware of when they correspond as the Ombudsman could not criticise the refusal private individuals and when they correspond as of the Prime Minister’s Ofce in this specifc public employees.’ case.

This is what Ombudsman Niels Fenger said when he published the result of a specifc com- The Prime Minister’s Ofce plaint case. refused to grant journalist A journalist had asked to see an exchange of access on the grounds that messages between the chief of staf at the the two were friends, and Prime Minister’s Ofce and a political commen- tator. But the Prime Minister’s Ofce refused to that the correspondence was grant the journalist access on the grounds that private. 2020 Complaint cases | 27

DSB staf were allowed to criticise management

Freedom of speech in state railways: A Danish In the wake of the two cases, the Ombudsman State Railways (DSB) engine driver and a train decided to raise an own-initiative investigation conductor had both received warnings for utter- of DSB’s general internal rules on, among other ing criticism of management during an industrial things, the behaviour of staf on social media. confict. In both instances, the Ombudsman reached the conclusion that the utterances were legal and that, consequently, DSB was not allowed to issue warnings because of them.

Extraction was also a difcult exercise in 2020

Factual information: Briefy, extraction means Extraction can be a difcult exercise, as has that authorities extract certain information from previously been pointed out in the Ombuds- a document and grant access to that informa- man’s annual report. As shown by a number of tion, even though the rest of the document can complaint cases from 2020, that is still so. One be kept confdential. This can for instance be example was a case where a government agen- done by an authority redacting all that is not to cy and a university had refused to extract and be extracted. release some estimated calculations of past ni- trogen run-of from Danish farming. But though they were estimates and not concrete measure- In practice, an important ments, in the Ombudsman’s opinion the information should be extracted. This was because main rule on extraction is the estimates had to a certain extent replaced that ‘factual information’ conducted measurements and were thus included in the university’s calculations etc. in the in a case must be extracted. same way as measurements would have been. Subsequently, the government agency informed the Ombudsman that the university had reopened In practice, an important main rule on extrac- the case and given access to the information that tion is that ‘factual information’ in a case must had been withheld. be extracted. This is not just ‘hard facts’ but also information that appears ‘softer’ but in reality functions as substantiating facts.

2020 28 | Annual Report 2020

Press releases must be correct

Refund of dividends tax case: The authori- The national newspaper Politiken had sent a ties have great freedom of action to choose how complaint to the Ombudsman about some they wish to inform the public in press releases. statements in the press release which were But it is crucial that the contents are correct. aimed at Politiken, among others. The Danish Tax Agency had written that ‘certain media This was the main message in a statement in persistently maintain wrongful interpretations which the Ombudsman expressed the opinion of the settlement towards the public’. Politiken that a press release from the Danish Tax Agency believed that this statement was contrary to on a settlement in the refund of dividends tax good administrative behaviour. However, the case had gone further than justifed. Ombudsman did not fnd grounds for criticising this part of the press release.

Forwarding may solve the problem

Help to self-help: If a citizen sends a complaint, Also in the social sector, forwarding is a good and the Ombudsman can see that the authority, tool to helping citizens quickly. For example, a for instance, referenced the wrong law or failed woman complained about having to repay hous- to consider signifcant questions, the Ombuds- ing benefts. Udbetaling Danmark (Public Bene- man often decides to forward the complaint. In fts Administration) and later the National Social short, this means that the Ombudsman for- Appeals Board had assessed that she was not wards the citizen’s complaint to the authority, entitled to housing benefts because she had typically with an explanation of what the author- made payments to a pension scheme. However, ity has not considered. In this way, the authority the woman could document that she was unem- can solve the problem itself without the citizen ployed and had not made payments to the pen- having to wait for a full Ombudsman investigation of the case.

A considerable number of the Ombudsman’s Also in the social sector, cases were forwarded in 2020, approximately forwarding is a good tool to 20 per cent. helping citizens quickly. The method is used, for instance, in complaints about access to public administration fles, sion scheme in the months during which she had where the Ombudsman may forward an enquiry received housing benefts. The Ombudsman from a journalist to the authority and at the same for warded the woman’s complaint with docu- time place focus on a potential legal misunder- mentation and referred to the relevant provision standing or an opportunity for further dialogue of the Housing Benefts Act. The National Social between the authority and the journalist. Appeals Board made a new decision, and the claim for repayment was reduced in accordance with the woman’s information. Complaint cases | 29

Nordhavn homeowners dissatisfed with property tax jump

Informative statement requirements: A total The Ombudsman conducted a general investiga- of 29 homeowners in the new city district of Nord- tion of the issue and reached the conclusion that havn complained to the Ombudsman because the informative statements had not complied they had had to pay signifcantly more in proper- with legal requirements. As the case processing ty tax than they had been promised when they in connection with the statements had since been bought their property. The reason for the difer- improved, the Ombudsman took no further ac- ence was that the informative statement from the tion in that specifc case. In addition, there was then Customs and Tax Administration (SKAT) no prospect that the Ombudsman could change regarding the properties’ value, which the es- the legal position of the Nordhavn homeowners tate agent had obtained for the sale particulars, in the specifc complaint cases, as there was no was much lower than the actual assessments of reason to assume that the fnal assessments property when the properties were completed. were wrong, and as the authorities’ original statements to the estate agent could not have created a legally protected expectation on the part of the homeowners.

2020 Own- initiative investigations | 31

What: Opening investigations on his own initia- Further, external parties – such as professional tive is a high priority for the Ombudsman. committees for practising lawyers or accountants or interest groups – can be useful sources The Ombudsman may open the following types of knowledge about recurring errors etc. of investigation on his own initiative: In addition, the Ombudsman chooses some • investigations of specifc cases general themes each year for the activities of • general investigations of an authority’s the Ombudsman’s Monitoring Department, processing of cases Children’s Division and Taxation Division.

The Ombudsman mainly opens own-initiative How: Own-initiative investigations have the investigations of themes and within areas with common denominator that the focus is usually one or more of the following characteristics: expanded beyond specifc problems to a more general level, with emphasis on any general and • There is an aspect of fundamental public recurring errors or problems and on how the au- importance. thorities involved can handle and rectify errors • Serious or signifcant errors may have been and problems. made. • They concern matters which raise important In some own-initiative investigations, the Om- issues in relation to citizens’ legal rights or are budsman reviews a number of specifc cases otherwise of great signifcance to citizens. from an authority. In others, the Ombudsman asks an authority for a statement about, for in- Why: A main objective is to identify recurring stance, its administration, interpretation of the errors made by authorities. This can have a law, practice or processing times in a specifc great impact on authorities’ case processing, area. thus helping a large number of citizens at the same time. The Ombudsman is working on an ongoing basis on a variety of own-initiative investigations The focus is not only on errors that the authority where he considers, based on, for instance, may already have made – but also on preventing specifc complaint cases, legislative changes errors being made in the frst place. or media coverage, whether a matter should be investigated further. In addition, the Ombudsman opens investigations on his own initiative of specifc cases of a In some cases, the Ombudsman’s own investi- more one-of nature. gation leads to the conclusion that there is no cause to contact the authorities involved and From where: Specifc complaint cases or that the case can thus be closed without a full monitoring visits may give rise to suspicion of Ombudsman investigation. The Ombudsman recurring errors etc. and be the launch pad for may also decide to close a case without a full an own-initiative investigation. Media coverage investigation after contacting the authorities. of a case may also cause the Ombudsman to open an investigation on his own initiative. The Ombudsman monitors both local and national media. 32 | Annual Report 2020

More examples of long case processing times

Waiting time: The Ombudsman has carried out plaints. The Ombudsman has seen some of the several investigations of too long case process- longest processing times at the Environment and ing times in 2020. There is often more than one Food Board of Appeal where a backlog of older reason when citizens must wait a long time for a complaints was not expected to be concluded decision, but one recurring explanation can be until after 4.5 years on average. reorganisations, which can afect the authorities’ activities in various ways. The Ombudsman’s general investigations of processing times are often focused on clarifying the This has been the case in, among others, the En- possible reason for the long processing times vironment and Food Board of Appeal, the Town and on what initiatives the authorities have taken and Planning Board of Appeal, the Building Ap- to solve the problem, including whether the au- peals Unit, the Disciplinary Board of the Danish thorities have done enough. Health Service and the Agency for Patient Com-

Own-initiative investigations 2020

Total investigations concluded 2018 2019

159 153 217

– of which concluded with criticism or formal or informal recommendations Own-initiative investigations | 33

Pandemic also afected access to fles cases

COVID-19: During the frst coronavirus wave in Therefore, the Ombudsman expressed con- the spring, the Ombudsman decided to keep a cern at the end of 2020. He pointed out that the close eye on how long journalists and others had authorities ‘have now to a certain extent had to wait for a response from the health authorities the opportunity to make arrangements so that in cases about access to public fles. The frst the measures against COVID-19 etc. would not consultation responses showed that there were stand in the way of the satisfactory processing difculties in meeting legislative deadlines. In the of access to fles cases’. beginning of autumn, the Health Authority managed to respond within the deadlines, but the Article: Openness in a pandemic, page 52 Ministry of Health, the national serum institute (Statens Serum Institut, SSI) and the Danish Pa- tient Safety Authority were still struggling. Some requests had been lying unanswered for up to seven months.

The Ombudsman conducts more thematic investigations Increased focus: As a new development in As part of the Tax Division’s theme, a number 2020, the Ombudsman’s Tax Division worked of general investigations have been opened. on a cross-cutting theme regarding grounds. Among others, an investigation of the grounds given by the Danish Tax Agency to citizens Thematic investigations are not a new phenom- when cutting them of from using the online self- enon at the Ombudsman Ofce. For a number of service solution E-Tax (in Danish TastSelv). years, the Monitoring Division and the Children’s Division (for further information, refer to the section ‘Monitoring activities’, page 38) have set annual themes for their monitoring activities.

2020 34 | Annual Report 2020

Municipalities’ guidelines on freedom of speech must be correct

Freedom of speech for public employees: received a complaint that the guidelines of both ‘Keep away from the press’, it said on a poster Esbjerg Municipality and Aalborg Municipality on at a staf seminar in Esbjerg Municipality. In the staf’s freedom of speech were misleading. local media, the poster was referred to as an ‘illegal muzzle’ for the staf, and the case was For both municipalities, the Ombudsman’s own- brought before the Ombudsman. However, the initiative investigation led to a change of the municipality quickly announced to the public guidelines. Previously, the guidelines of the two that the poster should never have been shown, municipalities said, among other things, that dis- and that the municipality had now taken the loyal utterances could have consequences for initiative of clarifying the rights of the staf with the individual’s employment. As the Ombudsman regard to freedom of speech. has stated in several instances, an employer cannot with reference to the duty of loyalty introduce restrictions in staf’s freedom of speech, except The municipality quickly those pursuant to general rules and principles announced to the public that regarding the freedom of speech of public employees. the poster should never have been shown. In continuation of these cases, the Ombudsman clarifed that if the municipalities choose to write guidelines on staf’s freedom of speech them- Instead of focusing on the poster, the Ombuds- selves, the guidelines must be correct. Help is man chose to take a closer look at the municipal- at hand in that respect from the guidelines of ity’s general guidelines on freedom of speech in the Ministry of Justice on freedom of speech for an own-initiative investigation. This was because public employees. the Ombudsman had at roughly the same time

71,000 errors in one and the same investigation

Mass administration: An important point of on of-setting and withholding of wages and sal- raising an own-initiative investigation is that this aries for fnes etc. imposed by the police. will make it possible to catch more errors in one go. However, it is rare that the Ombudsman fnds The Ombudsman said that he agreed with the 71,000 errors in one and the same investiga- Danish Debt Collection Agency in that it was tion. But so it was when it was revealed that the very regrettable and extremely inappropriate. Danish Debt Collection Agency had given incor- The Agency rectifed the error through general rect guidance on complaint in 71,000 decisions public information. Own-initiative investigations | 35

Cash benefts recipients will fnd it easier to ‘prove’ living in Denmark

Documentation requirement: Can a citizen The Ombudsman did not fnd that it was in ac- receiving case benefts be required to prove, cordance with the Act on Active Social Policy to month by month for nine out of the last ten years demand continuous monthly documentation if (previously seven out of the last eight years), that there was nothing to suggest that the citizen had he has been living in Denmark? spent an extended period abroad.

This was the issue which the Ombudsman The Danish National Social Appeals Board questioned back in the spring of 2020 – just in agreed with the Ombudsman, and at the end slightly diferent words. The Ombudsman had of the year the Board announced that it would received several complaints that homeless per- reopen about 40 cases. The Board would also sons, among others, had been transferred from inform the municipalities of the new practice. cash benefts to the signifcantly lower integration allowance (now self-support and return allowance or transitional allowance). This had happened because the citizens could not document that they had been living in Denmark for the required number of years.

Mayor went too far in reaction to journalist

Good administrative behaviour: Most own- A few weeks later the Ombudsman concluded initiative investigations are of a general nature. that the mayor had gone too far in his state- This means that the aim is to fnd systemic errors ments. And that he had crossed the line of how which exist in a number of cases. But these in- a public authority should act. The problem was vestigations can also concern a specifc case or that the e-mail could be seen as a threat – both in stem from a single episode. relation to the journalist’s and the medium’s access to getting information from the municipality This was so when it came out that the mayor of and in relation to the municipality’s future adver- Slagelse Municipality had written an angry tising in the medium. e-mail to a local journalist. The mayor felt that the journalist had thrown suspicion on named local council colleagues, and he therefore wrote, The problem was that the among other things, that he was considering e-mail could be seen as a ‘terminating all cooperation’. threat. 2020 36 | Annual Report 2020

Serious errors in cases about returning children in care to their homes Children’s rights: Returning a child placed in Through media coverage, the Children’s Division care is a very intrusive decision in a child’s life. of the Ombudsman became aware of problems Therefore, the municipality must ensure that in return cases in Langeland Municipality, and returning is the right solution for the child. Legis- so the Division requested a random selection of lation imposes a number of requirements to the cases for review. Since the cases raised various municipality’s case processing before the child is questions with respect to the municipality’s case returned. In several cases, Langeland Municipal- processing, and by the way were several years ity did not live up to these requirements, accord- old, new cases were reviewed where minors had ing to a major own-initiative investigation. been returned to their homes in 2019 (three cases in total). There turned out to be serious errors in the municipality’s case processing. For instance, the municipality had not in all cases held For instance, the municipality consultations with the children, prepared action had not in all cases held plans or given children above the age of 12 sufcient grounds for the decision. The Ombudsman consultations with the gave Langeland Municipality six weeks to state children, prepared action how the municipality would ensure in future that plans or given children cases about returning children would be processed in accordance with legislation. above the age of 12 sufcient grounds for the decision. In 2018, similar problems appeared after an investigation of return cases in Randers Munic- ipality.

When the decision concept becomes decisive What is a decision? In order for a complaint Among other things, the Ombudsman empha- to be processed by the Environment and Food sised that the content determines whether a Board of Appeal, a decision must have been statement made by an authority to a citizen con- made by, for instance, a municipality. However, stitutes a decision – not what the statement is when the Ombudsman investigated four refusals called or how it is communicated to the citizen. from the Board, it turned out that, in some areas, the Board had an incorrect understanding of the decision concept. This means that the citizens had received refusals on the wrong basis. Own-initiative investigations | 37

Municipalities had to correct errors in many cases involving parents of disabled children

Loss of earnings: Many parents who look after now to reopen the erroneous cases themselves a disabled child at home have received pension or whether they could simply inform of the pos- contributions that were too low for a number sibility to apply for reopening, for instance on a of years. This is because the pension contribu- website, and then wait for the citizens to make tion was not regulated. A fact that was covered contact. in 2018 after the Ombudsman raised some questions to the National Social Appeals Board After having taken a closer look at cases from regarding the contribution, resulting in a change three municipalities, the Ombudsman conclud- of practice. ed that the municipalities were to reopen the cases where parents, at the time of the change In an own-initiative investigation in 2020, the of practice in 2018, received loss of earnings question was whether the municipalities were benefts.

2020 Monitoring activities | 39

Where: The Ombudsman carries out monitor- • The Ombudsman has been appointed to ing visits to places where there is a special need monitor forced deportations. to ensure that citizens are treated with dignity • The Ombudsman monitors developments and consideration and in accordance with their regarding equal treatment of persons with rights – because they are deprived of their lib- disabilities at the request of Parliament. erty or otherwise in a vulnerable position. How: A monitoring visit to an institution is Monitoring visits are made to a number of pub- normally a physical visit by a visiting team, who lic and private institutions etc., such as: speak with users, staf and the management and look at the physical environment. In 2020, • Prison and Probation Service institutions however, the majority of monitoring visits were • psychiatric wards carried out as digital meetings due to COVID-19. • social residential facilities • residential institutions for children and young The monitoring of a forced deportation involves, people among other things, a member of the Ombuds- man’s staf participating in the whole or part of In addition, the Ombudsman monitors: the deportation.

• forced deportations of foreign nationals The Ombudsman may make recommendations • forced deportations arranged by other EU to the institutions visited and to the responsible member states at the request of the European authorities. Issues from the visits may also be Border and Coast Guard Agency, Frontex discussed with the responsible authorities, or they may be the subject of own-initiative investi- Finally, the Ombudsman monitors the physical gations or be dealt with in thematic reports (i.e. accessibility of public buildings, such as educa- reports on the year’s work in relation to each of tional establishments or health institutions, to the themes chosen for the year’s monitoring persons with disabilities. visits).

Why: The Ombudsman’s monitoring obligations Who: Monitoring visits are carried out by the follow from the Ombudsman Act and from the Ombudsman’s Monitoring Department, except rules governing the following special responsibili- for visits to institutions etc. for children, which ties which the Ombudsman has been assigned: are carried out by the Children’s Division. Exter- nal collaborative partners or consultants partic- • The Ombudsman has been designated ipate in a large proportion of visits. Depending ‘National Preventive Mechanism’ (NPM) under on the type of monitoring visit, the Ombudsman the Optional Protocol to the UN Convention collaborates with: against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). • medical doctors from DIGNITY – Danish The task is carried out in collaboration with Institute Against Torture DIGNITY – Danish Institute Against Torture • human rights experts from the Danish Institute and the Danish Institute for Human Rights, for Human Rights (IMR) which contribute with medical and human • wheelchair users from the Danish Association rights expertise. of the Physically Disabled • The Ombudsman has a special responsibility • consultants from the Danish Association of to protect the rights of children under the UN the Blind Convention on the Rights of the Child etc. 40 | Annual Report 2020

Where did we go in 2020?

Monitoring visits – adults

6 Prison and Probation 17 social residential 1 psychiatric ward 2 police detention Service institutions facilities facilities for intoxicated persons

2 physical visits (1 of them 12 physical visits 1 physical visit 2 physical visits focusing on 1 person)

3 partly virtual visits 5 virtual visits and 1 virtual visit

Read about the individual monitoring visits at en.ombudsmanden.dk/visits_adults en.ombudsmanden.dk/visits_children Monitoring activities | 41

Monitoring visits – children

2 private accommo- 6 open residential 2 foster families dation facilities institutions (specialised)

1 physical visit 5 physical visits 1 physical visit

1 virtual visit 1 virtual visit 1 virtual visit 42 | Annual Report 2020

Themes

Theme for 2020 – adults Focus areas During the monitoring visits to the 17 facilities, Convicted persons with intellectual and the Ombudsman’s visiting teams focused par- developmental disabilities ticularly on the following questions: Persons with intellectual and developmental disabilities who have committed a criminal • Are eforts made to ensure that the individual ofence are in many cases not given a prison resident will no longer be at risk of committing sentence. Instead, they may be sentenced to ofences, and is enough done to document measures aimed to prevent further ofences. these eforts? Such a sentence may involve placement in a so- • Does the municipality or the facility observe cial residential facility, in some cases in a secure the rules when making decisions on applica- unit. The sentence may be of indefnite dura- tions for leave? tion, and it may remain in force for many years, • Does the facility observe the special rules on depending, among other things, on whether use of force and other restrictions against the convicted person is at risk of committing convicted residents? further ofences. • Do residents have access to relevant treatment of mental or physical illness, and is there In 2020, the Ombudsman investigated the con- focus on prevention of suicide and self-harm? ditions for convicted persons with intellectual and developmental disabilities who have been Follow-up sentenced to placement in a social residential In connection with the visits, a number of rec- facility. ommendations were made on matters relating to the theme for the year. For instance, the The Ombudsman visited 17 social residential Ombudsman recommended the facilities to: facilities approved to receive persons sentenced to placement, including the secure unit • establish what targets and initiatives are of the facility of Kofoedsminde. Seven out of the needed to ensure that residents will no longer 17 facilities were run by a municipality, six by a be at risk of committing ofences region and four by a private party. • ensure documentation in relation to leave • establish who the residents’ guardian repre- Five of the monitoring visits were carried out sentatives are virtually on account of COVID-19. • ensure knowledge of the special provisions of the Social Services Act on restrictions against convicted residents

Read about themes at en.ombudsmanden.dk/themes Monitoring activities | 43 | 43

The visits have caused the Ombudsman to Focus areas open several cases on his own initiative with During the monitoring visits carried out as part the responsible ministries about, among other of the theme, the Ombudsman’s visiting teams topics, the interpretation of the rules on leave focused particularly on: for persons sentenced to placement in a social residential facility and the rules on the super- • use of physical force vision by municipalities for crime-prevention • prevention of violence and sexual abuse and purposes of persons sentenced to placement. the procedure for handling suspected abuse • education In 2021, a report will be published which sum- marises the results of the visits carried out as Examples of recommendations part of the theme in the form of overall con- In connection with the visits, a number of rec- clusions in relation to the main focus areas of ommendations were made on matters relating the visiting teams. The report will also contain to the theme for the year. For instance, the the Ombudsman’s general recommendations Ombudsman recommended institutions to: based on the monitoring visits. • continue endeavours to prevent and reduce the incidence of use of force Theme for 2020 – children • observe deadlines for recording and reporting use of force Institutions for children and young people • consider drawing up written guidelines on pre- with disabilities vention of violence and sexual abuse and on The institutions visited by the Ombudsman’s the procedure for handling suspected abuse Children’s Division as part of the theme were • observe the rules on teaching the full range institutions for children and young people with of subjects and on the number of class hours disabilities in a broad sense, including institu- per year tions that housed children and young people • observe the rules on exemption from sub- with a variety of types of physical and mental jects, compulsory tests and lower secondary disabilities. school examinations

More specifcally, the Ombudsman’s visiting In 2021, a report will be published which sum- teams visited two private accommodation facil- marises the results of the visits carried out as ities and six open residential institutions (three part of the theme in the form of overall con- of them regional and the other three municipal) clusions in relation to the main focus areas of as part of the theme. In connection with these the visiting teams. The report will also contain visits, four in-house schools were also visited. the Ombudsman’s general recommendations based on the monitoring visits. Two of the eight monitoring visits were carried out virtually on account of COVID-19. 44 | Annual Report 2020

Focus on fewer restrictions COVID-19 in the Prison and Probation Service: In the autumn, the Prison and Probation Ser- In 2020, the Ombudsman’s Monitoring Depart- vice was focusing on limiting restrictions for the ment has been investigating how the inmates of inmates. For example, the inmates could, as a the Prison and Probation Service’s institutions general rule, receive visits from close relatives. have been afected by COVID-19 restrictions. However, the conditions for the inmates were assessed on an ongoing basis and changed in the After having investigated the conditions in the light of the gradually stricter regional and nation- spring, the Ombudsman stated that it was posi- al COVID-19 restrictions. By the end of the year, tive that only one inmate had been infected with 27 inmates had been infected with COVID-19, COVID-19. At the same time, the Ombudsman according to the Prison and Probation Service. encouraged the Prison and Probation Service to review and consider whether ‘a future pandemic News item, 14 July: Ombudsman: Can a future can be handled efectively by means of less re- pandemic be handled less restrictively in Prison strictive measures’. and Probation Service institutions?

Can you ban a psychiatric patient from reading Science Illustrated? Legal authority issue: The answer to the above Therefore, the Ombudsman opened a gener- question is unclear under current legislation. al investigation of the authority issue with the The Mental Health Act does not provide legal Ministry of Health. The investigation concerned, authority for censoring, for instance, Science among other subjects, the use of breathalysers Illustrated, historical journals or religious litera- and urine sampling as well as restrictions on who ture like the Secure Department of Slagelse Psy- could visit the patients and the use of mobile chiatric Hospital (‘Sikringsafdelingen’) turned phones and computers. out to be doing during one of the Ombudsman’s monitoring visits. At the end of 2020, the Ministry stated that it would endeavour to create statutory authority. The Ombudsman has also encountered other Shortly after, the Ombudsman asked the Minis- types of interventions in the psychiatric sector try to state how it would manage the lack of stat- for which there was no statutory authority. In utory authority until such authority was in place. several cases, the interventions are set out in a set of house rules and may be justifed in the Article: Monitoring activities: Institution status ward due to, for instance, health reasons, but at may provide questionable legal authority, page the same time, they are so extensive that they 64 require statutory authority.

2020 Monitoring activities | 45

Illegal use of prison cell Cell 709: During a monitoring visit to Ringe Pris- A subsequent investigation by the prison on, several inmates stated consistently that one showed that, in October 2018, cell 709 had specifc cell had been used to lock up inmates been used briefy to exclude eight inmates from for a longer period when there had been trouble association at the same time to preserve order at a workshop. According to the inmates, there and safety. had been many people in the cell at the same time. The cell, number 709, was unfurnished. The Department of Prisons and Probation agreed with the Ombudsman that the use of the The information was confrmed by prison guards cell was not legal. The Department wrote that, in during the monitoring visit. future, the cell would only be used as a ‘waiting cell’ in connection with submission of urine sam- ples – and with only one inmate at a time, as the clear starting point.

The Ombudsman fnds patterns in suicide attempts Suicide prevention: Twice in 2020, the Om- In response to both situations, the Prison and budsman has pointed to specifc patterns in Probation Service stated that the problems cases of suicide and suicide attempts in Danish would be handled. The exposed radiator pipes state and local prisons. in the prison hospital within Vestre Fængsel were hidden while new guidelines on inmates’ access Over the course of a little over a year, three in- to razors would contribute to the prevention of mates in Vestre Hospital, the hospital unit of the suicide using razor blades. local Copenhagen prison of Vestre Fængsel, committed suicide by hanging themselves from According to an established agreement, the exposed pipes in their cells. Parliamentary Ombudsman is notifed of all deaths and suicides, and all suicide attempts Another pattern was that inmates in Danish state and other self-harm which are highly likely to be and local prisons in several cases had attempted life-threatening, among inmates of Prison and to commit suicide using razor blades. Probation Service institutions. The Ombudsman will subsequently look into, among other things, whether adequate precautionary measures The exposed radiator pipes in had been taken, whether quick and adequate the prison hospital within Vestre action was taken in response to the incident Fængsel were hidden while new and whether the inmate has been provided with adequate supervision and received adequate guidelines on inmates’ access to treatment following the incident. razors would contribute to the prevention of suicide using razor News item, 4 June: Measures to be taken to blades. prevent suicides in prison 2020 46 | Annual Report 2020

Isolated for more than eighteen months Monitoring one person: Normally, the Ombuds- Department had done and would do to stop the man’s monitoring team visits an entire institution isolation of the inmate. The case is still pending. and speaks with numerous inmates or residents. However, on occasion, as in January 2020, a In 2018 and 2019, the Ombudsman has had a monitoring visit is targeted at only one person. special focus on inmates who periodically serve The Ombudsman’s monitoring team conducted time in isolation. In 2018, focus was on inmates an announced monitoring visit to a prison inmate who were excluded from association with other who had been excluded from association for inmates, while in 2019, it was on inmates in disci- more than three months. plinary cells. In continuation of the Ombudsman’s investigation of these themes, the Prison and During the visit, it turned out that the man had Probation Service has stated that it would ensure been isolated on various legal grounds for more specifc and adequate documentation in discipli- than eighteen months without interruption. The nary cell cases by educating the staf who decide Ombudsman later sent a question to the Depart- whether to use that method. ment of Prisons and Probation asking what the

An end to secret phone detection scanning

Legal authority issue: Young people who were This was not the only time the monitoring team in surrogate custody at a secure residential in- of the Children’s Division encountered interven- stitution in the north of Zealand were not allowed tions for which there was no statutory authority. to have mobile phones. Therefore, upon justifed For example, visitors to a secure residential in- suspicion, the staf would stand outside the young stitution were searched using a scanner, among person’s room with a scanner that could detect other things, before being allowed to visit. mobile phones through the wall. The young person would not be notifed before the scanner Article: Monitoring activities: Institution status was used. This became evident during one of may provide questionable legal authority, page the monitoring visits by the Children’s Division. 64

Even though there may be good reasons for per- forming these phone detection scans, it is not legal unless the young person is made aware of it and consulted beforehand.

The then Ministry of Social and Internal Afairs said this after the Ombudsman had asked for a statement. The institution has now changed practice so that the young person will be informed before the room is searched – also when the search takes place outside the room using a scanner. This page has been intentionally left blank. 48 | Annual Report 2020

Monitoring visits to investigate accessibility for persons with disabilities

Monitoring visits in 2020 Other cases Owing to COVID-19, no monitoring visits to In a new stadium in Elsinore, wheelchair users investigate accessibility for persons with dis- did not have an unrestricted view of the pitch abilities were carried out in 2020. because the barrier of the covered stand was too high. Following press coverage, the Om- Theme budsman raised the matter with Elsinore In 2019, the Ombudsman decided that, for some Municipality, which promised to fnd a solution time to come, the accessibility of healthcare to the problem. The Ombudsman therefore centres was to be the theme for his monitoring closed the case but asked the Municipality to visits to investigate accessibility. The Ombuds- be notifed when a solution had been provided. man therefore visited the healthcare centre The Municipality has subsequently informed ‘Sundhedscenter Odsherred’ in December the Ombudsman that it expects the problem to 2019. Following the monitoring visit, the health- be solved before the start of the 2021 season. care centre informed the Ombudsman that a number of changes would be made to improve accessibility. For instance, the centre would adjust the location and size of its disability parking facilities and make minor alterations to its disabled toilet facilities. These alterations would include installing disabled-friendly locks on toilet doors and ftting mirrors that could be used by wheelchair users.

Read more at en.ombudsmanden.dk/equal_treatment_of_ persons_with_disabilities Monitoring activities | 49 | 49

Monitoring of forced deportations

Monitoring activities in 2020 General investigations Owing to COVID-19, the Ombudsman did not In connection with his review of concluded participate in any forced deportations of foreign cases from 2018 and 2019, the Ombudsman nationals by the Danish authorities in 2020. The decided to open two general investigations. Ombudsman’s monitoring of these deportations will therefore consist exclusively in reviews in One concerned the practice of the police 2021 of the case fles in some of the concluded for ascertaining, when a deportation is to be deportation cases from 2020. carried out, that the foreign national can still be deported. Normally, the police ask the relevant In addition, the Ombudsman did not register immigration authorities via a so-called ‘e-mail any forced-return monitors to participate in round’ whether any barriers to deportation have Frontex operations in 2020. arisen. The Ombudsman focused, among other things, on how the police handle situations Annual review of concluded cases where they do not receive a reply from one or In 2020, the Ombudsman reviewed the case more authorities. As a result of the Ombuds- fles in 52 deportation cases from 2018 and 44 man’s questions, the Danish Return Agency, cases from 2019 which had been concluded by which is now responsible for e-mail rounds, the police. Three of the cases from 2018 and six expanded its guidelines to state that the Return of the cases from 2019 caused the Ombudsman Agency must ascertain that it has received a to raise questions with the National Police. The reply from all authorities. In future, when moni- other 87 cases did not give rise to comments. toring forced deportations, the Ombudsman will focus on the Return Agency’s observance of its Selected cases guidelines on e-mail rounds. Case No. 2020-32: A foreign national was put in a transport belt when he was collected by The other general investigation concerned the the police at 2:25 p.m. Both his hands were practice of the police with regard to obtaining strapped in the belt from 2:32 p.m. until 5:50 so-called ‘ft to fy’ or ‘ft to fight’ declarations, p.m. despite the fact that the deportation was which state whether deportees are able to aborted at 5:04 p.m. The Ombudsman consid- travel by air. During the Ombudsman’s investi- ered it very regrettable that the deportation gation of the matter, the remit for obtaining ft report of the police contained no information to fy declarations passed from the police to about why it was necessary to strap both of the the Return Agency. The information about the deportee’s hands in the transport belt and why practice of the police will be included in the Om- that degree of restraint was necessary during budsman’s monitoring of forced deportations the whole period. The police were given the by the authorities in future. opportunity to explain to the Ombudsman why it was deemed necessary to put the deportee in a transport belt and strap both his hands in the belt. The Ombudsman had no grounds for repudiating the assessment of the police of the need for the deportee to wear a transport belt and for his hands to be strapped until the Read more at deportation was aborted. However, the police en.ombudsmanden.dk/ were unable to explain why it was necessary for forced_deportations the deportee’s hands to remain strapped after the deportation was aborted. Articles This page has been intentionally left blank. Openness in a pandemic | 53

Kirsten Talevski Mai Gori Senior Head of Division Legal Case Ofcer

A democratic society is characterised by an open administration. The COVID‑19 pandemic has not changed the importance of this fundamental principle.

In 2020, the COVID-19 pandemic has hit the The lockdown of Denmark headlines and has had signifcant implications Before Denmark was largely locked down for everyone’s daily life. in March 2020 due to COVID-19, the Danish Health Authority asked the regions a number However, some things have not changed – in of questions about their preparedness for the spite of the pandemic. One of these things is the handling of the pandemic. right of access to public fles under the Access to Public Administration Files Act. Even though The answers included information on the Denmark is in a national crisis, the fundamental capacity of intensive care units and the number principle of an open administration still applies. of ventilators. On the frst day of lockdown, a journalist from the Danish trade magazine In the course of 2020, the Ombudsman has – as Ingeniøren requested access to the regions’ usual – processed complaints about access to reports to the Health Authority. fles. The Ombudsman focuses on whether the authorities comply with the rules and whether To begin with, the journalist received refus- their response times have become too long. This als from all regions. When the Ombudsman also applies in cases where journalists or others received a complaint from the journalist, he want information on the COVID-19 pandemic. decided to focus on Region Zealand’s refusal to grant access and the National Social Appeals It is especially important in such an extraordi- Board’s refusal to initiate a supervisory case nary situation with lockdowns and restrictions against Region Zealand. that the authorities remember the fundamental purpose of the Access to Public Administra- Region Zealand had refused access on the tion Files Act when they consider withholding grounds that it was an extraordinary situation. information concerning the pandemic. This is Signifcant considerations and compelling illustrated by several cases throughout the year. protective interests meant that the region 54 | Annual Report 2020

Purpose of the Access to Public Administration Files Act

The Access to Public Administration Files Act is built on a fundamental principle of openness and democratic control of the public administration. The openness principle is thus a central characteristic of a democratic society.

The purpose of the fundamental openness principle is to support the control of the administrative authorities’ performance of their tasks as well as the media’s communication of information to the public and trust in the public administration, among other things.

The main rules concerning openness are clear: • Everyone has the right of access to fles. • The decision must be made as soon as possible. • Exemptions can only be made if there is a legal basis in the Access to Public Administration Files Act.

should be able to communicate with the Health The Ombudsman noted that if the authorities Authority without public insight. The region are to use the general clause to withhold infor- later clarifed its view stating that access to fles mation about capacity shortages, the adverse might signifcantly afect the eforts to counter- efects of the publication must be both specifc act unrest and panic among the population. The and probable. He also noted that the authori- refusal to grant access was given with reference ties might consider adding to or clarifying the to Section 33(5) of the Access to Public Admin- information covered by the request of access if istration Files Act (the so-called general clause). there is a risk that it may be misunderstood.

The Ombudsman emphasised that the general While the Ombudsman investigated the matter, clause is only meant for very exceptional cir- the region decided to grant the journalist cumstances and that the public must generally access to the information in August. In the light be able to have insight into the public admin- of the amount of time that had passed, Region istration, even if it may cause insecurity and Zealand believed that the information could worry. This is especially the case with matters no longer be kept secret. The Ombudsman of substantial public interest. In this connec- concluded that Region Zealand had no basis tion, he noted that the openness principle for exempting the requested information from constitutes an extension of democracy and access under Section 33(5) of the Access to that general access to documents in the public Public Administration Files Act. administration must in this day and age be considered a central characteristic of an open, The case is published in Danish at democratic society. It is thus a fundamental www.ombudsmanden.dk as Case No. 2020-35. purpose of the Access to Public Administration Files Act to underpin the information available Text messages between the Minister to the public as well as the public’s control of for Health and WHO the public administration, including the media’s Another case about an authority’s limitation communication of information to the public. of access to fles on the COVID-19 pandemic Openness in a pandemic | 55

concerned the text message correspondence public. On the contrary, WHO had indicated that between the Danish Minister for Health and the the organisation did not want to get involved in Director-General of WHO (Case No. 2020-29). the exchange of information between member states and the media. The Minister for Health had direct and personal contact with the Director-General of WHO, and On this basis, the Ombudsman found that the the Minister thus received information about consideration of the relationship between the WHO’s recommendations about testing strate- Minister for Health and the Director-General of gies through brief and informal text messages. WHO could not justify an exemption from ac- In March 2020, a journalist requested access to cess to the information. The Ministry of Health the text messages. subsequently disclosed the text messages in their entirety. The Ministry of Health granted access to the subject-related parts of the text messages but ‘Worrying’ processing times with the not the remaining content. health authorities In the spring of 2020, it quickly became clear The refusal was given with reference to Section to the Ombudsman that the extraordinary sit- 32(1) of the Access to Public Administration uation could afect the processing times of the Files Act. According to the provision, the health authorities in cases about access to fles. authorities may limit the right of access due to consideration of Danish foreign-policy inter- In order to get an idea of the situation, in May ests, including international law obligations and 2020, the Ombudsman asked the Ministry of protection of the relationship with international Health for a general status of the processing of organisations if there is a general practice of access to fles cases in the Ministry, the Health confdentiality. Agency, the national serum institute (Statens Serum Institut, SSI) and the Danish Patient However, the Ministry of Health had not given Safety Authority. any information indicating that there was an international law obligation or a general practice According to the reply from the health authori- of confdentiality. On the contrary, the reason ties, the COVID-19 crisis had led to signifcantly given for the refusal was regard for the relation- more requests for access to fles than usual, ship that the Minister for Health had established and the Ministry of Health explained that it was with the Director-General of WHO. The Ministry often impossible to meet the deadlines set out emphasised the possibility of maintaining a in the Access to Public Administration Files Act direct and personal relationship and a level of due to the exceptional circumstances with the confdentiality. According to the Ministry of handling of COVID-19. Health, this relationship might sufer if the full extent of the text messages were made public. The health authorities had taken various initiatives in order to reduce the processing times. However, WHO had not indicated that the infor- But the Ombudsman decided to keep track of mation in the text messages could not be made whether the initiatives worked sufciently well. 56 | Annual Report 2020

In the autumn of 2020, the Ombudsman was Openness in extraordinary times informed that the Health Agency now met the The above-mentioned cases illustrate that it deadlines set out in the Access to Public Admin- has not been easy for the authorities to meet istration Files Act. However, the Ministry itself, the requirements of openness and quick pro- SSI and the Danish Patient Safety Authority cessing times set out in the Access to Public were still struggling to meet the deadlines. Administration Files Act while Denmark has Therefore, the Ombudsman asked for a more found itself in an extraordinary situation with detailed account. the handling of COVID-19.

According to the response, several cases had However, an open administration is one of the processing times that exceeded those set out cornerstones of Danish democracy. It is there- in the Access to Public Administration Files Act. fore important to remember that the public is For instance, the processing times of several entitled to information about COVID-19, unless pending cases in the Ministry were between the conditions for exemption are met. In the 80 and 120 business days. In some cases, same way, the media is entitled to a quick re- the processing times exceeded 140 business sponse to requests for access to fles in order to days (corresponding to approximately seven keep the public informed. months). This worried the Ombudsman. The Ombudsman understands that the eforts In a news item of 16 December 2020, the against COVID-19 throughout 2020 have Ombudsman stated that ‘if journalists have demanded considerable resources for many to wait too long for a response to requests for authorities – not least the health authorities. access to fles, their ability to conduct investi- Oftentimes, the same employees have to carry gative journalism is obstructed, and it becomes out preparedness-related tasks and service more difcult for them to inform the population politicians while at the same time managing about matters of substantial public interest, requests for access to fles. But, even though such as the measures against COVID-19. It was the challenges are substantial, the authorities therefore important that the health authorities have to adjust the usual working procedures to reduced their processing times’. ensure the openness principle. In other words, the measures against COVID-19 cannot stand In the light of the health authorities’ challenges, in the way of cases about access to fles being the Ombudsman decided to continue keeping processed in accordance with the Access to track of the processing times in 2021. Public Administration Files Act. This page has been intentionally left blank. Getting the access to fles case on the right track | 59

Stephan Andreas Damgaard Deputy Head of Division

Many problems in cases about access to public administration fles can be prevented with a little more dialogue and mutual understanding. So how can the authorities get the access to fles case on the right track from the start – and how can journalists and others help?

When talking about the Access to Public If the authority skips the initial assessment Administration Files Act, focus is often on the of the journalist’s request, the authority may exemption from access to documents or infor- overlook or misunderstand what the journal- mation. But before getting this far, the access ist is actually searching for. In the worst-case to fles case must be started of in the right way scenario, the authority may go of on a tangent, – and experience at the Ombudsman Ofce which takes time and resources and may not shows that the frst steps may be crucial. correspond at all with what the journalist is interested in. All access to fles cases begin with a request – often from a journalist – to see an authority’s The authorities may be tempted to ‘just get on’ documents on a case or a subject. The request with assessing the pile of documents which has is the starting point of the access to fles case. A been retrieved from the records system. It is a thorough initial assessment by the authority can well-known fact that access to fles cases must clear up doubts and misunderstandings and set be processed especially fast. the case on the right track from the start. However, the energy spent in the initial stage of It is simple but still important to keep in mind the access to fles case is well worth it. A thor- that a journalist rarely knows what documents ough initial assessment of the request – and the authority has. Only the authority knows clarity from the start about what the journalist is this, while the journalist is often on a ‘fshing and is not interested in – makes the case faster expedition’. and easier to process. 60 | Annual Report 2020

Requirements for the access request tion in media coverage, for instance television, It is the authority’s responsibility to process the radio or articles. Here, the theme requirement access request correctly. But the requester and was met. Because in the Ombudsman’s view, the request can help the authority well on the the requests involved more than just media way. And in order to help in the best possible coverage or media handling as a procedure in way, the request must meet certain require- the Ministry. ments. This is implied in the Access to Public Administration Files Act. In another case about the theme requirement, a journalist requested access to all of the Ministry Among other things, the request must con- of Foreign Afairs’ consultation responses given tain information that makes it possible for the to either the Royal Danish Defence College, authority to identify the requested cases or the Danish Institute for International Studies documents etc. – the objective identifcation (DIIS) or the Centre for Military Studies in the requirement. years 2017-2019. The Ministry of Foreign Afairs informed the Ombudsman that the consultation The request must also state the theme of the responses in question could pertain to various cases or documents to which access is re- subjects and could be included in various kinds quested. This is called the theme requirement. of processes. For example, it was not a question of one yearly consultation response about one So, it is not sufcient that you in the request specifc subject. mention a certain type of documents – for instance internal information notes or outgoing The Ministry of Foreign Afairs did not fnd that e-mails – without stating anything about the the request met the theme requirement – and contents of the documents. the Ombudsman could not criticise this assessment, based on the Ministry’s information. It is also not sufcient to simply mention a work (Case No. 20/04214, published in Danish on the process within the authority where documents Public Access Portal, www.ofentlighedspor- may have been included. This happened in a talen.dk). case in 2020. A journalist had requested access to the documents that the then Ministry of The request as kick-of for the Transport and Housing had presented to the access to fles case Government’s Finance Committee over a period So, while the Access to Public Administration of about three years. However, in the Ombuds- Files Act has requirements regarding the con- man’s opinion this request did not meet the tents of the access request, there are no such theme requirement (Case No. 2020-22, pub- requirements as to form. lished in Danish at www.ombudsmanden.dk). A request does not have to be in writing, as In the same case, the journalist had also re- many may believe. It can also be made orally, quested access to enquiries from the Ministry’s for instance by telephone – and in that case, permanent secretary of state and head of Press the authority should always take notes from the Section to external recipients about the recipi- telephone conversation (see for instance Case ent’s – or the recipient’s employee’s – participa- No. 2020-17). Getting the access to fles case on the right track | 61

There is also not a requirement for the requester conclusion of the access to fles case, or by to give grounds for the request (see for instance stating in the decision how the authority has Case No. 2020-35). handled the request. In this way, the journalist is able to say if the authority has taken the wrong Overall, the requirements that the Access to approach. Public Administration Files Act imposes on requests for access are fairly limited. Two cases from 2020 concerned this issue (Cases Nos. 2020-9 and 2020-10). In each However, do not forget that the more informa- case, the Ombudsman found that a ministry tion the requester can give the authority, the had given a journalist the wrong picture of its more the authority is assisted in delimiting and delimitation of the request for access. There- processing the access to fles case. fore, the journalist was under the impression that the ministry had assessed more material This is because the access request marks the for the request than was actually the case. In authority’s starting point. The authority now the Ombudsman’s opinion, such a concealed has to consider what the requester is and is delimitation was not acceptable. not interested in. And how is the request to be understood and matched with the documents in So, the authorities must be open and loyal as to the authority’s possession? what has been considered and done.

The open and loyal delimitation But a good start of an access to fles case goes Sometimes, it will be pretty clear to the author- beyond that – because often it will also be wise ity what for example a journalist is interested in for the authority and the requester to talk with – then it will be easy for the authority to delimit each other and match expectations as to the the request and fnd the relevant documents. interests of the requester.

At other times, the delimitation of a request Collaboration between authority may give rise to doubt. The journalist does not and journalist always know what he or she should ask for – be- Many initial questions of doubt and misunder- cause it is only the authority that has a general standings can be resolved through an open overview of its documents and their contents. dialogue between the authority and the journalist. Is it in fact this or that angle the journalist is Ultimately, it is up to the authority to interpret interested in – what about this and that theme? the request and to reach a delimitation that Are there subjects that are of no interest? Is a refects what the journalist is searching for. It is specifc period of time relevant? Maybe certain crucial that the delimitation is impartial as well authorities or actors? as loyal to the request and to the journalist. Authorities’ dialogue with journalists and au- And the cards must be put on the table. If the thorities’ duty to provide guidance are frequent authority is in any way in doubt about the delimi- themes when the Ombudsman processes com- tation, this must be made clear to the journalist plaints about access to fles. This was also the – either by asking the journalist before the case in 2020 where several of the Ombudsman’s 62 | Annual Report 2020

cases again showed that authorities’ processing explanation of the reason for the refusal – we at of access to fles cases should be built on dia- the Ombudsman Ofce had reason to believe logue, trust and collaboration. See, for instance, that a fast and easy solution might be found with Cases Nos. 2020-22, 2020-10 and 2020-9, as which the authorities as well as the requester referred to above. would be satisfed. Therefore, in a consultation, we asked for alternative methods to meet the Another example was a case where a journalist wish for access to fles – for example, if it was was refused access to specifc complaint cases possible to just state the number of drivers who about bullying etc. by the National Complaints were living on a specifc road, or if more or less Centre against Bullying (Case No. 2020-17). than half of the drivers were living on diferent When the case got to the Ombudsman, it had roads from the requester. reached a deadlock – but maybe partly due to misunderstandings. In his recommendation to After the consultation, the authorities and the Complaints Centre to reopen the case, the the requester opened a dialogue, which re- Ombudsman noted, among other things, that solved the case. (Case No. 20/03009, pub- it was not clear if the journalist and the Com- lished in Danish on the Public Access Portal, plaints Centre had the same understanding of www.ofentlighedsportalen.dk). what the request for access actually involved. Subsequently, the Complaints Centre stated that Get the access to fles case on the the Complaints Centre and the journalist had right track – it pays of entered into a dialogue about the matter that the At the Ombudsman Ofce, our experience is journalist wanted to shed light on. that many problems and conficts in access to fles cases can be avoided with a little more di- At times, an access to fles case can be resolved alogue and mutual understanding between the by simply having a dialogue and by ‘thinking authority and the journalist – not least in regard outside the box’. One example from 2020 was to what the journalist is in fact interested in. a complaint to the Ombudsman in a complex access to fles case about the tax authorities’ One thing is certain: Good initial assessments of special duty of confdentiality, among other the request make the access to fles case faster things. For the purpose of a municipal case about and easier to process. Everyone benefts from acquisition of road areas, the requester asked for this. The authority saves time and resources. the addresses of drivers who had been observed The requester can get a reply faster and – if the on a particular road. The tax authorities did not requester is a journalist – provide all of us with fnd that they could disclose this information. information about the public administration’s present cases in a faster and better way. It is Based on the requester’s description of his or her well worth the efort to get the access to fles wish for access to fles – and from the authorities’ case on the right track from the start. How to get the access to fles case on the right track from the start

For authorities – and employees about If you wish to request access to fles to process an access to fles case

• Request requirements • Request requirements Clarify whether the request for access meets You are not obliged to give grounds for your the requirements of the Access to Public Ad- request for access. However, your request must ministration Files Act, for example the theme make it possible for the authority to identify the requirement. requested cases or documents etc. Your request must also state the theme of the case or the • Oral/written documents to which you wish to gain access. If the request is oral, you ought to make a note about the request. • You can help the authority It is the authority’s responsibility to process the • Understanding access to fles case correctly. Still, what you Do you understand the request – do you have a can and want to disclose about your request for fair picture of what the requester wants? access can help the authority process your case better and faster. • Delimitation When delimiting the access to fles case – that is, • Dialogue fnding out what material is or is not covered by Many authorities have a lot of material. And the request – you must be impartial and loyal to maybe your request involves more material than the request and to the requester. you think at frst. Be open to having a dialogue with the authorities so that you can come closer • Dialogue to what it is you are actually interested in. If you are in doubt about the requester’s wish, put the cards on the table – and always consider having an open dialogue with the requester. Monitoring activities: Institution status may provide questionable legal authority | 65

Kaj Larsen Chief Legal Advisor

In his monitoring work, the Ombudsman has seen several examples of problems with the legal authority for house rules and interventions – in future, he will continue to focus on this issue.

Body searches, examination of personal Therefore, the Ombudsman’s Monitoring De- belongings, urine tests, compulsory washing partment and Children’s Division continuously of clothes, examination of mail, nightly door focus on whether interventions towards resi- locking and literature control. dents, patients or inmates at institutions – or visitors – have sufcient legal authority. These are some of the interventions encountered by the Ombudsman during monitoring Written rules and institution status visits in recent years where it turned out that The Ombudsman’s Monitoring Department legal authority was lacking or questionable. All carries out monitoring visits to institutions es- these interventions were introduced due to the pecially within the Prison and Probation Service institutions’ wishes to protect a citizen or main- (state and local prisons etc.), psychiatric wards, tain order at the institution. Thus, on the face social residential facilities and asylum centres. of it, the reasons behind the interventions are The monitoring by the Children’s Ofce involves good. However, many of the interventions are children and young people particularly at social so extensive that they require explicit statutory institutions, private accommodation facilities authority. and children’s psychiatric wards.

In 2020, the Ombudsman published six cases If it turns out that a provision in a set of house concerning a lacking or questionable basis rules or an intervention against a resident for interventions. One of the cases concerned does not have legal authority in written rules 17 diferent psychiatric wards where the Om- (laws or executive orders), the question is often budsman found a lack of or questionable legal whether the unwritten principle of institution authority in the house rules of the wards (Case status could provide legal authority. To a certain No. 2020-43, published in Danish at extent, the management of an institution can www.ombudsmanden.dk). establish house rules or introduce interventions 66 | Annual Report 2020

towards the residents in order to ensure that In 2020, the Ombudsman found the institution the institution can function. The legal authority status to provide insufcient legal authority in for these house rules or interventions is said to several cases. be the institution status (or institution considerations). During a monitoring visit to the Secure Depart- ment of Slagelse Psychiatric Hospital (‘Sikrings- However, there are limits to when the institution afdelingen’), which is especially targeted at status may be recognised as legal authority: patients who are sentenced to placement and treatment in a hospital, the visiting team found 1. It is a common assumption that the more that the Secure Department had restricted intensive the interventions in the fundamental some patients’ access to literature (Case No. rights of individuals, the greater the require- 2020-16). Among others, the visiting team ments on the authority. Thus, the principle of spoke with a patient who was not allowed to institution status can hardly be considered read religious literature, historical journals or to provide legal authority for interventions in the magazine Science Illustrated. A diferent personal freedom or integrity. Interventions in patient was not allowed to read books on psy- personal freedom and integrity could involve chiatry. confnement, examination of personal belongings, mobile phone confscation, compulsory The management of the Secure Department submission of a urine sample or setting up of said that several patients sufered from delu- surveillance equipment. sions, which might be worsened by too many stimuli. There were thus therapeutic reasons 2. If an intervention can be compared to some- behind the Secure Department’s decision to thing that is already expressly governed by keep the patients from reading certain litera- written rules, the institution status cannot usually ture. be recognised as legal authority. Neither for making decisions nor establishing rules such As legal authority for these interventions, the as house rules. authorities referred to a provision in the Mental Health Act concerning house rules and to the 3. The institution status does not generally pro- principle of institution status. vide legal authority for interventions that have previously been – but no longer are – governed The Ombudsman stated that the restriction by written rules. interfered with the patients’ right to receive information under Article 10 of the European Ban against certain kinds Convention of Human Rights, and that interfer- of literature ence with the freedom of individuals requires Thus, the institution status can often only provide clear and unambiguous legal authority. The legal authority for less extensive interventions Ombudsman believed that the provision of the or provisions of house rules. Such provisions Mental Health Act on house rules does not in might concern when a ward should be quiet, itself provide the required legal authority. It visitation hours, where smoking is allowed and seems that the institution status also did not the institution’s alcohol policy. provide legal authority for the interventions, Monitoring activities: Institution status may provide questionable legal authority | 67

since limiting the right to receive information A voluntary agreement must in fact was an extensive intervention. be voluntary In the psychiatric sector, the Ombudsman has The Ministry of Health recognised the problem many times been informed that patients have and would work towards creating clear legal voluntarily entered into agreements about authority. interventions. For example, this was the case during a visit to the Secure Department, where Greater legal protection through two patients had entered into an agreement written rules on a transition from having their doors locked In several cases, the Ombudsman’s statements (Case No. 2020-15). The Secure Department have led to an institution’s previously question- had previously decided that the doors of the able legal practice being replaced by actual leg- two patients would be locked – the Mental islation. A signifcant example is the opportunity Health Act provided legal authority for this. aforded by the Social Services Act to establish It was later decided that the doors should no restrictions for visitors to care homes etc. (Case longer be locked, but the patients would still No. 2010 20-7). not be allowed to leave their rooms. Whenever they wanted to go to the common rooms, they Legislation will generally increase legal protec- would frst have to call the staf, and then the tion. The provisions of an act will typically state staf would collect them and lead them out of when interventions can be taken. In this way, it their rooms. is also indirectly stated when they cannot be taken. This is not the case when the institution Voluntary agreements are generally in keeping status provides the legal authority. Legislation with the fundamental principle of the patient’s will typically also include provisions on special right of self-determination set out in the Health documentation requirements and complaint Act, which also applies in the psychiatric sector. options. Therefore, written rules normally The Mental Health Act thus states that admis- reduce the risk of interventions being taken in sion, stays and treatment at psychiatric wards practice without the required legal authority. must to the extent possible take place with the At the same time, written rules provide a more consent of the patient. Force cannot be used secure basis for the Ombudsman and other until every possible attempt has been made to reviewing bodies to assess the legal authority convince the patient to participate voluntarily. for specifc interventions. However, in the case from the Secure Depart- In addition, law-making naturally gives the leg- ment and another case from 2020 (Case No. islative power a chance to consider which pro- 2020-25), the Ombudsman has pointed out visions should apply in the area. This ensures that psychiatric wards must ensure that such that the sometimes difcult balancing between agreements are in fact voluntary – not forced. In the civic rights of the citizens and the objective order for an agreement to be valid, it must have considerations behind an intervention is carried been entered into voluntarily, based on satisfac- out by Parliament with the resulting democratic tory information and by a patient who is able to credibility. give valid consent. Otherwise, it is considered 68 | Annual Report 2020

illegal force, regardless of the intentions of the legal authority for interventions or where it has staf. It is also important that the patients are been questionable whether there was valid con- aware that they can back out of an agreement sent for an intervention. This has contributed to at any time without automatically being met by the Ombudsman placing special focus in 2021 sanctions because of it. on force and non-statutory measures and interventions in the psychiatric sector in connection In recent years, there have been relatively many with monitoring visits. In the spring of 2022, the cases in the psychiatric sector where the Om- Ombudsman will summarise the most impor- budsman has found a lack of or questionable tant results in a thematic report.

The Ombudsman’s cases about legal authority

The Ombudsman’s cases about lack of legal autho- • Over time, there is a tendency for the framework rity in house rules and for specifc interventions as of the institutions’ house rules and specifc inter- well as the legislative developments in the area ventions to be increasingly governed by written are characterised by the following: law. The increase in legislation naturally reduces the area where the institution status can be con- • The cases are often opened on the Ombuds- sidered to provide relevant legal authority. man’s own initiative in connection with monitoring visits. • If there are written rules that govern specifc types of interventions, the institution status • The institutions’ house rules and interventions generally does not provide legal authority for are typically aimed at residents, patients or comparable interventions. This also applies to inmates, who rarely complain about the issues interventions of a less intensive character. to the Ombudsman. • The Ombudsman will continue to focus on the • In several cases, the Ombudsman has expres- issue of interventions without legal authority – sed understanding of the professional views also in connection with monitoring visits. behind the provisions of house rules or specifc interventions. • • When the Ombudsman fnds legal authority to be lacking or questionable, he usually involves the relevant ministry in order for the ministry to consider whether authority based on written rules is needed. This page has been intentionally left blank. Brief overview of the year This page has been intentionally left blank. The year in fgures The following pages contain key fgures for the cases processed by the Ombudsman in 2020. More information about the Ombudsman’s work and the rules governing the Ombudsman’s activities can be found on en.ombudsmanden.dk. | 73

Concluded cases1

17.6% Investigations

Other forms of processing 63.7% 2020 and assistance to citizens 6,207 cases 18.7% Rejections for formal reasons

14.8% Investigations

Other forms of processing 67.7% 2019 and assistance to citizens 5,574 cases 17.5% Rejections for formal reasons

15.4% Investigations

Other forms of processing 66.3% 2018 and assistance to citizens 4,955 cases 18.3% Rejections for formal reasons

1 ) Administrative cases are not included. In addition, cases selected for collective review in connection with general own-initiative investigations are not normally included. 74 | Annual Report 2020

What was the outcome of the cases?

Concluded cases

1. Investigations Full investigations 254 – of which cases with criticism, formal or informal recommendations etc. 138 Shortened investigations1 836 Investigations, total 1,090

2. Other forms of processing and assistance to citizens Various forms of intervention in cases where the avenues of processing by authorities had 2,142 not been exhausted – of which cases forwarded to authorities 1,124 Cases where the Ombudsman’s review did not result in further investigation 1,285 Answers to enquiries, guidance etc. 528 Other forms of processing and assistance to citizens, total 3,955

3. Rejections for formal reasons Complaints which were submitted too late to the Ombudsman 125 Cases where the complaint/appeal options to authorities had not been used – and could no 54 longer be used Cases which related to courts, judges or matters on which a court had made or could be 200 expected to make a decision – and which were thus outside the Ombudsman’s jurisdiction Cases which concerned matters relating to Parliament, including legislative issues, and were 148 thus outside the Ombudsman’s jurisdiction Complaints which related to other matters outside the Ombudsman’s jurisdiction, including 276 private legal matters Complaints which were not clarifed sufciently to enable investigation and complaints 290 which were withdrawn Cases in which the Ombudsman declared himself disqualifed 1 Anonymous approaches 68 Rejections for formal reasons, total 1,162

Total (1-3) 6,207

1) Shortened investigations comprise primarily cases in which the Ombudsman reviewed a complaint but decided not to obtain statements from the authorities because it was unlikely that a full investigation would result in criticism or recommendations. The category of shortened investigations also includes, among others, cases which were reopened by the authorities after the Ombudsman asked them for a statement (61 cases in 2020). The year in fgures | 75

What did the cases concern?

Specifc decisions Case processing General issues1 Case processing time Conduct/Actual administrative activity Monitoring activities Miscellaneous

All concluded cases 6,207 cases 12.6% 1.1%13.6%

41.9% 1.7% 14.5% 14.6%

Investigations 1,090 cases 6.3% 5.9%7.4%

74.4% 0.4% 4.8% 0.8%

Cases with criticism, formal or informal recommendations etc. 138 cases 2.2% 31.2%

24.6% 13.8% 12.3% 15.9%

1) The category ‘General issues’ comprises, for instance, the overall conditions in an institution or the question whether an enabling act provides a sufcient legal basis for the provisions of an executive order or whether an authority’s general practice in a specifc area is acceptable. 76 | Annual Report 2020

Which authorities etc. were involved?

Cases concluded in 2020 – by authority etc.

Authority etc. with prime Investigations Other forms Rejections Total responsibility of processing for formal cases With criticism, Without criticism, and assistance reasons formal or informal formal or informal to citizens recommendations recommendations etc. etc.

A. Ministries and authorities etc. under them1

Ministry of Employment 0 14 67 10 91 Ministry of Children and Education 1 10 30 0 41 Ministry of Industry, Business and Financial Afairs 7 46 83 12 148 Ministry of Finance 1 4 4 0 9 Ministry of Defence 1 5 12 0 18 Ministry of Justice 30 169 650 90 939 Ministry of Ecclesiastical Afairs 1 3 21 2 27 Ministry of Climate, Energy and Utilities 1 2 16 3 22 Ministry of Culture 0 8 21 10 39 Ministry of Environment 0 1 33 1 35 Ministry of Food, Agriculture and Fisheries 0 4 40 2 46 Ministry of Taxation 17 128 186 36 367 Ministry of Social Afairs and the Interior 5 286 463 127 881 Prime Minister's Ofce 2 5 27 4 38 Ministry of Health 4 27 110 8 149 Ministry of Transport and Housing 5 19 57 8 89 Ministry of Higher Education and Science 1 28 47 15 91 Ministry of Foreign Afairs 2 8 13 1 24 Ministry of Immigration and Integration 2 27 98 27 154 Total 80 794 1,978 356 3,208

B. Municipal and regional authorities etc.

Municipalities 27 127 1,321 187 1,662 Regions 19 12 80 15 126 Joint municipal or regional enterprises 0 1 5 4 10 Special municipal or regional entities 0 0 4 0 4 Total 46 140 1,410 206 1,802

1) The cases have been classifed under the ministries existing at the end of the year. Concluded cases relating to authorities which have been moved to another ministry, closed down or reorganised have as a general rule been classifed under the ministries which had the remit for the relevant areas at the end of the year. The year in fgures | 77

Cases concluded in 2020 – by authority etc.

C. Other authorities etc. within the Ombudsman’s jurisdiction2

Other authorities etc. within the Ombudsman’s jurisdiction 12 18 133 19 182 Total 12 18 133 19 182

D. Authorities etc. within the Ombudsman’s jurisdiction, total

Central authorities etc., total (A) 80 794 1,978 356 3,208 Municipal and regional authorities etc., total (B) 46 140 1,410 206 1,802 Other authorities etc. within the Ombudsman’s jurisdiction, total (C) 12 18 133 19 182 Total 138 952 3,521 581 5,192

E. Institutions etc. outside the Ombudsman’s jurisdiction

Courts etc., cf. section 7(2) of the Ombudsman Act 0 0 0 110 110 Dispute tribunals, cf. section 7(3) of the Ombudsman Act 0 0 0 12 12 Other institutions, associations, enterprises and persons outside the Ombudsman’s jurisdiction 0 0 15 388 403 Total 0 0 15 510 525

F. Cases not relating to specifc institutions etc.

0 0 419 71 490

Grand total (A-F total) 138 952 3,955 1,162 6,207

2) The fgures comprise private institutions etc. which fall within the Ombudsman’s jurisdiction in connection with OPCAT or in the children’s sector and other institutions etc. which have been included under the Ombudsman’s jurisdiction. In 2020, the Ombudsman made no new decisions in pursuance of section 7(4) of the Ombudsman Act that his jurisdiction was to extend to a specifc company, institution, association etc. 78 | Annual Report 2020

Processing times

Complaint cases and own-initiative investigations

Investigations – of which cases about access to public records1

12 months 40 days Result: 93% Result: 90% (Target: 90%) (Target: 90%)

6 months 20 days Result: 73% Result: 74% (Target: 70%) (Target: 45%)

Average processing time 4.9 19 months working days2

1) Complaint cases about access to public records under the Access to Public Administration Files Act, the Environmental Information Act, the Administration of Justice Act etc., with the exception of cases about the right of a party to a case to obtain access to documents of the case. 2) Processing times for cases about access to public records are stated in working days – as in the Access to Public Admin - istration Files Act. The number of working days is calculated from the date on which the Ombudsman has received replies from the citizen and the authorities and the case is thus ready for fnal processing (the ‘maturity date’). The year in fgures | 79

Monitoring cases3

Other forms of processing and assistance to citizens and rejections for formal reasons

6 months Result: 96% 3 months (Target: 98%) Result: 88% (Target: 90%) 6 months Result: 72% (Target: 80%)

1.3 4.8 months months

3) Concluded cases concerning monitoring visits made to institutions etc. for children and for adults, monitoring visits to investigate physical accessibility for persons with disabilities and monitoring of forced deportations of foreign nationals by the Danish authorities. The processing time for a monitoring case is calculated from the date of the monitoring visit or the deportation. 80 | Annual Report 2020

Other facts

The Ombudsman declared himself disqualifed The Faroese Lagting (the Parliament) did not ask in one case in 2020. Parliament’s Legal Afairs the Ombudsman to act as ad hoc ombudsman Committee assigned this case to Henrik Bloch for the Faroese Parliamentary Ombudsman in Andersen, High Court Judge. The Ombudsman’s any cases in 2020. The Inatsisartut (the Parlia- ofce provided secretariat assistance in connec- ment of Greenland) asked the Ombudsman to tion with the processing of the case. act as ad hoc ombudsman for the Ombudsman for Inatsisartut in one case. This page has been intentionally left blank. | 81 Extracts from news stories published on the Ombudsman’s website in 2020 of special relevance for international readers

The following are translated extracts from news stories of special relevance for international readers which were published on the Ombudsman’s website in 2020.

The Ombudsman has now adopted the practice of translating the full text of news stories of special relevance for international readers into English. To be notifed every time a news story is published in English on en.ombudsmanden.dk, please follow us on Twitter at @DanishOmbudsman. | 83

12 March 23 June Ombudsman and staf to continue Still problems with education of children operations from home ofces in out-of-home care The staf of the Parliamentary Ombudsman have been Many children in in-house schools of placement facil- asked to work from home from tomorrow, in line with ities are not getting the education to which they are Government instructions, and will continue to process entitled. This is one of the principal conclusions of the cases. 2019 annual thematic report from the Ombudsman’s Children’s Division. 6 May Ombudsman cannot criticise refusal to 1 July extend humanitarian residence permit 2019 Annual Report of Danish Parliamentary The Ombudsman cannot criticise the refusal by the Ombudsman now available in English Ministry of Immigration and Integration to extend the The English-language version of the 2019 Annual residence permit of a seriously ill man from Afghani- Report of the Danish Parliamentary Ombudsman has stan who was ordered to leave Denmark. now been published.

This is the conclusion of the Ombudsman’s investi- In the preface, Ombudsman Niels Fenger stresses that gation of one of the cases which were reopened in a guiding principle for him is to apply the institution’s the light of the judgement by the European Court of resources where they can be of the greatest possible Human Rights in the case of Paposhvili v Belgium. use in protecting citizens’ legal rights.

4 June 14 July (originally published in Danish on 3 July) Measures to be taken to prevent suicides Ombudsman: Can a future pandemic be in prison handled less restrictively in Prison and Over the course of a little over a year, three inmates Probation Service institutions? in Vestre Hospital, the hospital unit of the local Copen- Only one out of all inmates in state and local prisons hagen prison of Vestre Fængsel, committed suicide by and halfway houses under the Danish Prison and Pro- hanging themselves from exposed pipes in their cells. bation Service has been infected with COVID-19. The After the Ombudsman has pointed out the pattern, Ombudsman fnds this very positive. At the same time, the Prison and Probation Service will now see that however, he recommends, following a recent Om- all exposed pipes in the ceilings of the cells of Vestre budsman investigation, that the Prison and Probation Hospital are hidden in order to prevent suicides and Service review its experiences of recent months with suicide attempts. a view to determining whether a future pandemic can be handled by means of less restrictive measures. 12 June Ombudsman: Rules on gifts also apply 10 August (originally published in Danish on 5 May) in COVID-19 times Prison and Probation Service should do Public employees may not freely accept gifts. This more to ensure legal rights of inmates also applies in COVID-19 times. This is the message placed in disciplinary cells from the Parliamentary Ombudsman, Niels Fenger, The Prison and Probation Service should do more to after he found cause to consider the issue in a case ensure the legal rights of inmates who are to be placed involving the Central Denmark Region. in disciplinary cells. This is the Ombudsman’s assessment following monitoring visits to 11 local prisons, fve state prisons and one immigration detention centre under the Prison and Probation Service. Statement of revenue and expenditure 2020 | 85

The Ombudsman’s ordinary activities

DKK Revenue Revenue 25,000 Total revenue 25,000

Expenditure Wages and salaries, pension costs 74,197,000 Rent 5,575,000 Staf and organisation, including staf welfare 142,000 Continuing training/education 404,000 Books and library 93,000 Specialist databases 1,619,000 Newspapers and journals 235,000 Communication 786,000 Computer systems – operations and development 2,981,000 Computer hardware 1,606,000 Telephony and internet 457,000 Premises – repairs and maintenance 635,000 Furniture, fxtures and fttings 369,000 Cleaning, laundry and refuse collection 294,000 Heating and electricity 508,000 Premises – other expenditure 190,000 Travel 181,000 Entertainment and meals 27,000 Contribution to fnancial support scheme for trainees 301,000 Stationery and ofce supplies 207,000 Other goods and services 578,000 Total expenditure 91,385,000 Total expenditure (net) 91,360,000 Government appropriation 92,700,000 Result for the year 1,340,000 86 | Annual Report 2020

Public service pensions DKK Revenue 1,630,000 Expenditure 2,325,000 Result for the year -695,000

Collaboration agreements with Ministry of Foreign Afairs DKK Revenue 607,000 Expenditure 607,000 Result for the year 0 This page has been intentionally left blank. | 87 Organisation As at 31 December 2020 | 89

Management

Niels Fenger Management Secretariat Parliamentary Ombudsman International Section

Division 1 Cases about access to public records

Division 2 Social sector cases

Louise Vadheim Division 3 Guldberg Monitoring Department Director General Legal Lennart Hem Department Division 4 Lindblom Children’s Division Deputy Director General Division 5 Environmental, healthcare and immigration law etc.

Division 6 Taxation Division

Division 7 Personnel cases, transport, education etc.

HR Development

Information, Records Ofce and Communications

IT Christian Ørslykke Møller Administrative Personnel Administrative Department Director Service

Language and Service Centre

Finance and Analysis

92 | Annual Report 2020

Employees and core responsibilities as at 31 December 2020

Management Division 2 Niels Fenger, Parliamentary Ombudsman Social sector cases Louise Vadheim Guldberg, Director General Karsten Loiborg, Senior Head of Division Lennart Hem Lindblom, Deputy Director General Marte Volckmar Kaasa, Deputy Head of Division Christian Ørslykke Møller, Administrative Director Stine Marum, Deputy Head of Division Bente Mundt, Senior Consultant Management Secretariat Mette Ravn Jacobsen, Special Legal Advisor Jens Møller, Chief Legal Advisor Kirsten Broundal, Legal Case Ofcer Kaj Larsen, Chief Legal Advisor Marianne Halkjær Ebbesen, Legal Case Ofcer Jacob Berner Moe, Special Communications Advisor Rikke Malkov-Hansen, Legal Case Ofcer Mai Gori, Management Coordinator Bjørg Boye Gudbrand, Legal Student Assistant Jannie Svendsen, Executive Secretary Key subject areas of cases handled International Section • Social security and labour market law Klavs Kinnerup Hede, Director of International Relations Camilla Schroll, Legal Case Ofcer Division 3 Monitoring Department Morten Engberg, Senior Head of Department Division 1 Adam Abdel Khalik, Deputy Head of Department Cases about access to public records Jørgen Hejstvig-Larsen, Deputy Head of Department Kirsten Talevski, Senior Head of Division Lise Puggaard, Senior Consultant Kristine Holst Hedegaard, Deputy Head of Division Nina Melgaard Ringsted, Special Legal Advisor Stephan Andreas Damgaard, Deputy Head of Division Ulla Birgitte Frederiksen, Special Legal Advisor Sofe Hedegaard Larsen, Special Legal Advisor Franz Amdi Hansen, Legal Case Ofcer Jakob Liebetrau, Legal Case Ofcer Lina Funda Phillips, Legal Case Ofcer Mai Gori, Legal Case Ofcer Sabine Heestermans Svendsen, Legal Case Ofcer Martin Dyhl-Polk, Legal Case Ofcer Signe Brehm Jensen, Legal Case Ofcer Tina Andersen, Legal Case Ofcer Jeanette Hansen, Senior Administrative Ofcer Maria Thostrup Jakobsen, Legal Student Assistant Clara Næsborg Olsen, Legal Student Assistant Oskar Stangegård Christensen, Legal Student Key subject areas of cases handled Assistant • Cases about access to public records – The Access to Public Administration Files Act The Monitoring Department is in charge of the – The Environmental Information Act Ombudsman’s monitoring activities in relation – The Radio and Television Broadcasting Act to adults, which involve in particular: – Selected cases involving the Administration of • State prisons Justice Act • Local prisons – Selected cases about press handling etc. • Halfway houses under the Prison and Probation Service • Police detention facilities for intoxicated persons • Psychiatric wards • Social and social psychiatric residential facilities • Asylum centres • Non-discrimination of persons with disabilities • Forced deportations of foreign nationals | 93

The Monitoring Department especially handles Division 5 specifc cases involving: Environmental, healthcare and • Sentence enforcement and custody immigration law etc. • Psychiatric healthcare and conditions for Jacob Christian Gaardhøje, Senior Head of Division psychiatric patients Ann Thagård Gregersen, Deputy Head of Division • Social institutions Louise Marie Jespersen, Deputy Head of Division Helle Sidenius, Special Legal Advisor Janne Lundin Vadmand, Special Legal Advisor Division 4 Cecilie Thornvig Andersen, Legal Case Ofcer Children’s Division Hanne Nørgård, Legal Case Ofcer Susanne Veiga, Senior Head of Division Lucienne Josephine Lokjær Bak, Legal Case Ofcer Christina Ladefoged, Deputy Head of Division Mai Vestergaard, Legal Case Ofcer Lise Bitsch, Deputy Head of Division Morten Bech Lorentzen, Legal Case Ofcer Irene Rønn Lind, Special Advisor on Children’s Issues Nanna Flindt, Legal Case Ofcer Christine Hagelund Petersen, Legal Case Ofcer Yasaman Mesri, Legal Case Ofcer Lene Levin Rybtke, Legal Case Ofcer Ditte Hector Dalhof, Legal Student Assistant Marie Helqvist, Legal Case Ofcer Marie Nyborg Kvist, Legal Case Ofcer Key subject areas of cases handled Pernille Helsted, Legal Case Ofcer • Environment and planning Peter Kersting, Legal Case Ofcer • Building and housing Nikolaj Mielcke Siekstele, Legal Student Assistant • Energy Sarah Videbech, Legal Student Assistant • Food and agriculture • Municipalities and regions etc. The Children’s Division carries out monitoring • The non-psychiatric healthcare sector visits to public and private institutions etc. for • Foreign nationals children, such as: • The law of capacity, the law of names, foundations • Residential institutions and private accommoda- and the law of succession tion facilities for children placed in residential care • The Guide for Authorities on the Ombudsman’s • Foster families website • Asylum centres • Hospital wards and psychiatric wards for children Division 6 The Children’s Division especially handles Taxation Division specifc cases involving: Lisbeth Adserballe, Senior Head of Division • Support measures for children and young people Anne Djurhuus, Deputy Head of Division • Social services for children Rasmus Krogh Pedersen, Deputy Head of Division • Family law matters Michael Gasbjerg Thuesen, Senior Consultant • Primary and lower secondary schools, continuation Elizabeth Bøggild Monrad, Special Legal Advisor schools and private schools Linette Granau Winther, Special Legal Advisor • Institutions for children Isabella Hinze Glenstrøm, Legal Case Ofcer • Other cases with a particular bearing on children’s Marjanne Kalsbeek, Legal Case Ofcer rights Marta Warburg Schmidt, Legal Case Ofcer Sverre Dehnfeld Kjeldgaard, Legal Case Ofcer Mathilde Hellmund Tønder, Legal Student Assistant Professor Jan Pedersen, LLD, External Consultant, Aarhus University

Key subject areas of cases handled • Direct taxes • Indirect taxes, including value-added tax, etc. • Levying and collection of taxes • Cases within certain other felds, including industrial injury cases 94 | Annual Report 2020

Division 7 Information, Records Ofce and Personnel cases, transport, education etc. Communications Johannes Martin Fenger, Senior Head of Division Karen Nedergaard, Head of Information, Records Camilla Bang, Deputy Head of Division Ofce and Communications Vibeke Lundmark, Deputy Head of Division Anna Skov Fougt, Librarian Kristian Gyde Poulsen, Special Legal Advisor Julie Gjerrild Jensen, Senior Communications Ofcer Anna Helene Stamhus Thommesen, Legal Case Eva Jørgensen, Senior Communications Ofcer Ofcer Carsten Christiansen, Senior Records Assistant Morten Juul Gjermundbo, Legal Case Ofcer Denise Schärfe, Senior Records Assistant Rune Werner Christensen, Legal Case Ofcer Harriet Lindegaard Hansen, Senior Records Assistant Stine Harkov Hansen, Legal Case Ofcer Julie Roland, Senior Records Assistant Anna Grevelund Kiil, Legal Student Assistant IT Key subject areas of cases handled Seyit Ahmet Özkan, IT Administrator • Public employment law Kevin Pedersen, IT Ofcer • Transport, communication, roads, trafc etc. Ufe Larsen, IT Ofcer • Education and research • Prosecution Service and criminal cases etc. Personnel • Passports, weapons etc. Mette Vestentoft, Special Legal Advisor • Elections, registration of individuals etc. Lone Gundersen, Senior Personnel Ofcer • Ecclesiastical afairs and culture Neel Aggestrup, Senior Personnel Ofcer • Trade and industry etc. Stine Holst Gamain-Nørgaard, Senior Personnel Assistant

Administrative Department Service Core responsibilities Jeanette Schultz, Head of Service • Personnel Charlotte Charboe Andersen, Receptionist • Finance and analysis Flemming Wind Lystrup, Service Assistant • HR development Niels Clemmensen, Service Assistant • Organisational development Annitta Lundahl, Housekeeper • Information and communications Charlotte Jørgensen, Housekeeper • Proofreading and other linguistic services David Jensen, Housekeeper • IT Katarzyna Sztukowska-Thomsen, Housekeeper • Service and maintenance Kirsten Morell, Housekeeper • Records ofce Suphaporn Nielsen, Housekeeper

Christian Ørslykke Møller, Administrative Director Language and Service Centre Vibeke Lundmark, Senior Consultant HR Development Gurli Søndergaard, Senior Language Ofcer Lisbeth Kongshaug, Head of HR and Development Lisbeth Nielsen, Senior Language Ofcer Jannie Svendsen, Senior HR and Development Marianne Anora Kramath Jensen, Senior Language Administration Ofcer Ofcer

Finance and Analysis Torben Frimer-Larsen, Head of Finance and Analysis Jeanette Schultz, Head of Service Mathias Brix, Finance and Analysis Student Assistant This page has been intentionally left blank. | 95 Appendix General information about the Danish Parliamentary Ombudsman and about monitoring visits under the OPCAT mandate | 97

its confdence. However, the Ombudsman Act General information about stipulates that the Ombudsman is independent the Danish Parliamentary of Parliament in the discharge of his functions. 1.Ombudsman Under the Ombudsman Act, the jurisdiction of the Parliamentary Ombudsman extends to The task of the Parliamentary all parts of the public administration: the state, Ombudsman the regions, the municipalities and other public The Danish Parliamentary Ombudsman was bodies. established in 1955 following a constitutional amendment in 1953. The general background to Parliament – including its committees, the introducing a Parliamentary Ombudsman was a individual members of Parliament, the Admin- wish to improve the protection of citizens’ legal istration of Parliament and other institutions rights vis-à-vis public authorities. under Parliament – is outside the Ombudsman’s jurisdiction. Thus, the Ombudsman is generally The primary task of the Parliamentary Om- precluded from considering complaints regard- budsman is to help ensure that administrative ing the isolated efects of a statutory provision authorities act in accordance with the law and or its compliance with the Constitution and good administrative practice, thus protecting international law. However, if any defciencies in citizens’ rights vis-à-vis the authorities. An addi- existing statutes or administrative regulations tional function of the Ombudsman is to support come to the Ombudsman’s attention in specifc and promote good administrative culture within cases, the Ombudsman must notify Parliament the public administration. and the responsible minister. Further, the Om- budsman Act states that the Ombudsman must The Parliamentary Ombudsman is not the Na- monitor that existing statutes and administrative tional Human Rights Institution of Denmark. The regulations are consistent with, in particular, Danish Institute for Human Rights carries out Denmark’s international obligations to ensure this mandate. the rights of children, including the UN Conven- tion on the Rights of the Child. Relationship to Parliament and jurisdiction Courts of justice are outside the Ombudsman’s The Parliamentary Ombudsman is governed by jurisdiction, and the same applies to court-like the Ombudsman Act. bodies and tribunals that make decisions on disputes between private parties. Subject to a few The Parliamentary Ombudsman is organisa- exceptions, the Ombudsman cannot consider tionally linked to the Danish Parliament. After complaints about private establishments either. each general election and whenever a vacancy occurs, Parliament elects an Ombudsman. Fur- The Danish Parliamentary Ombudsman is ther, Parliament may dismiss the Ombudsman located in Copenhagen and has no branch if the person holding the ofce no longer enjoys ofces. The Faroe Islands and Greenland both 98 | Annual Report 2020

have their own ombudsman, with jurisdiction in There is a deadline of one year for complaints to relation to issues falling under the remit of the the Ombudsman. home rule administration in the case of the Faroe Islands and the self-government administration When the Ombudsman receives a complaint, in Greenland’s case. Issues relating to the Faroe he frst determines whether it ofers sufcient Islands and Greenland which fall under the remit cause for investigation. In some cases, the Om- of central administrative authorities of the Realm budsman is unable to consider a complaint, of Denmark are within the jurisdiction of the Da- whereas in other cases, he chooses not to open nish Parliamentary Ombudsman. an investigation, for instance because he would not be able to help the complainant achieve a Working methods better outcome. The Ombudsman investigates complaints, opens investigations on his own initiative and In a large proportion of complaint cases, the Om- carries out monitoring visits. Investigating com- budsman helps the citizen by providing guidance plaints from citizens is a core function of the or by forwarding the complaint to the relevant Ombudsman. authority, for instance in order that the authority will be able to consider the complaint or give the Complaint cases citizen more details of the grounds for a decision In general, anybody can complain to the Om- which it has made in the case. budsman, also if they are not a party to a case. Complaining to the Ombudsman is free. A com- In a number of cases, the Ombudsman discon- plainant cannot be anonymous. tinues his investigation because the authority chooses to reopen the case, for instance after The Ombudsman considers complaints about being asked for a statement on the matter by the all parts of the public administration and in a Ombudsman. limited number of situations also about private institutions, an example being complaints about In some complaint cases, the Ombudsman car- conditions for children in private institutions. ries out a full investigation, which, among other things, involves obtaining statements from the The Ombudsman does not consider complaints authority and the complainant. The investigation about courts, nor about court-like bodies or tribu- may result in the Ombudsman choosing to criti- nals which make decisions on disputes between cise the authority and, for instance, recommend private parties. that it make a new decision on the matter.

The Ombudsman’s task is to ensure that the Own-initiative investigations authorities have observed the applicable rules. As mentioned above, investigating complaints For this reason, the Ombudsman cannot con- from citizens is a core function of the Ombuds- sider cases at frst instance; he can consider a man. However, opening investigations on his own complaint only if the case has been considered initiative is also a high priority for the Ombuds- by the relevant authority – and by any appeals man. bodies. Appendix: General information | 99

The Ombudsman may open the following types • They concern matters which raise important of investigation on his own initiative: issues in relation to citizens’ legal rights or are otherwise of great signifcance to citizens. • investigations of specifc cases • general investigations of an authority’s Specifc complaint cases or monitoring visits processing of cases may give rise to suspicion of recurring errors etc. and be the launch pad for an own-initiative inves- An example of a topic for a general investigation tigation. When the Ombudsman is investigating a could be whether an authority’s interpretation specifc case, his focus is therefore, among other and application of specifc statutory provisions things, on problems which characterise not only or its practice in a specifc area is correct. that particular case.

Objectives of own-initiative investigations Media coverage of a case may also cause the One of the main objectives of also giving high pri- Ombudsman to open an investigation on his own ority to own-initiative investigations is to identify initiative. The Ombudsman monitors both local recurring errors made by authorities. Investiga- and national media. tions of this type can have a great impact on the case processing by authorities, thus helping a Further, external parties – such as professional large number of citizens at the same time. committees for practising lawyers or accountants or interest groups – can be useful sources In an own-initiative investigation, the focus is not of knowledge about recurring errors etc. on the only on errors that the authority may already part of authorities. have made – but also on preventing errors being made in the frst place. In addition, the Ombudsman chooses some ge neral themes each year for the activities of In addition, the Ombudsman opens investiga- the Ombudsman’s Monitoring Department, tions on his own initiative of specifc cases of Children’s Division and Taxation Division. a more one-of nature if he fnds cause to look further into a case. What characterises the work on own-initiative investigations? Backgrounds to opening own-initiative The Ombudsman’s own-initiative investigations investigations comprise a variety of activities with the common In practice, the Ombudsman mainly opens own- denominator that they are not centred on a com- initiative investigations of themes and within plaint in a specifc case, as the focus is usually areas with one or more of the following charac- expanded beyond specifc problems to a more teristics: general level, with emphasis on any general and recurring errors or problems. • There is an aspect of fundamental public importance. Further, own-initiative investigations typically • Serious or signifcant errors may have been have a more forward-looking focus, centring made. on how the authorities involved can handle and rectify errors and problems. 100 | Annual Report 2020

In some own-initiative investigations, the Om- In addition, the Ombudsman monitors: budsman reviews a number of specifc cases from an authority. • forced deportations of foreign nationals • forced deportations arranged by other EU In other cases, the Ombudsman asks an author- member states at the request of the European ity for a statement about, for instance, its ad- Border and Coast Guard Agency, Frontex minis tration, interpretation of the law, practice or processing times in a specifc area. Finally, the Ombudsman monitors the physical ac cessibility of public buildings, such as educa- The Ombudsman is working on an ongoing basis tional establishments, to persons with disabilities. on a variety of own-initiative investigations where he considers, based on, for instance, specifc The Ombudsman’s monitoring obligations follow complaint cases, legislative changes or media from the Ombudsman Act and from the rules coverage, whether a matter should be investigat- governing the following special responsibilities ed further. Thus, the Om budsman decides on an which the Ombudsman has been assigned: ongoing basis which issues or areas give cause for investigation and how to prioritise them. • The Ombudsman has been designated ‘National Preventive Mechanism’ (NPM) under In some cases, the Ombudsman’s own investi- the Optional Protocol to the UN Convention gation leads to the conclusion that there is no against Torture and Other Cruel, Inhuman or cause to con tact the authorities involved and Degrading Treatment or Punishment (OPCAT). that the case can thus be closed without a full The task is carried out in collaboration with Ombudsman investigation. The Ombudsman DIGNITY – Danish Institute Against Torture may also decide to close a case without a full and the Danish Institute for Human Rights, investigation after contacting the authorities. which contribute with medical and human rights expertise. Monitoring visits • The Ombudsman has a special responsibility The Ombudsman carries out monitoring visits to to protect the rights of children under the UN places where there is a special need to ensure Convention on the Rights of the Child etc. that citizens are treated with dignity and con- • The Ombudsman monitors developments sideration and in accordance with their rights regarding equal treatment of persons with – because they are deprived of their liberty or disabilities at the request of Parliament. otherwise in a vulnerable position. • The Ombudsman has been appointed to monitor forced deportations of foreign nationals. Monitoring visits are made to a number of public and private institutions etc., such as: A monitoring visit to an institution is normally a physical visit by a visiting team, who speak with • Prison and Probation Service institutions users, staf and the management and look at the • psychiatric wards physical environment. • social residential facilities • residential institutions for children and young people Appendix: General information | 101

The monitoring of a forced deportation involves, out investigations. Firstly, authorities etc. within among other things, a member of the Ombuds- the Ombudsman’s jurisdiction are required to man’s staf participating in the whole or part of furnish the Ombudsman with such information the deportation. and to produce such documents etc. as he may demand. Secondly, the Ombudsman may Monitoring visits are carried out by the Ombuds- demand written statements from authorities etc. man’s Monitoring Department, except for visits within his jurisdiction. Thirdly, the Ombudsman to institutions etc. for children, which are carried may inspect authorities etc. within his jurisdiction out by the Children’s Division. and must be given access to all their premises.

External collaborative partners or consultants Assessment and reaction participate in a large proportion of visits. De pend- The Ombudsman’s assessment of a case is a ing on the type of monitoring visit, the Ombuds- legal assessment. In connection with monitor- man collaborates with: ing activities, however, the Ombudsman may also include universal human and humanitarian • medical doctors from DIGNITY – Danish considerations in his assessment. The Ombuds- Institute Against Torture man only considers the legal aspects of cases • human rights experts from the Danish Insti- and not matters which require other specialist tute for Human Rights (IMR) knowledge, such as medical matters. Further, the • wheelchair users from the Danish Association object of the Ombudsman’s investigations is the of the Physically Disabled acts or omissions of public authorities, not the • consultants from the Danish Association of acts or omissions of individual public servants. the Blind Under the Ombudsman Act, the Ombudsman During monitoring visits, the Ombudsman often may express criticism, make recommendations makes recommendations to the institutions. and otherwise state his views of a case, typically Recommendations are typically aimed at im- by criticising a decision or recommending that proving conditions for users of the institutions the authority change or review its decision. The and in this connection also at bringing condi- authorities are not legally obliged to comply with tions into line with the rules. Recommendations the Ombudsman’s recommendations, but in may also be aimed at preventing, for instance, practice, they follow his recommendations. degrading treatment. The Ombudsman may recommend that a com- In addition, monitoring visits may cause the Om- plainant be granted free legal aid in connection budsman to open own-initiative investigations of with any matter within his jurisdiction. general problems. If the Ombudsman's investigation of a case Powers reveals that the public administration must be presumed to have committed errors or derelic- Tools of investigation tions of major im port ance, he must notify Parlia- Under the Ombudsman Act, the Ombudsman ment’s Legal Afairs Committee and the relevant has a set of tools at his disposal when carrying minister or municipal or regional council. 102 | Annual Report 2020

Organisation Does the NPM have the necessary Under the Ombudsman Act, the Ombudsman professional expertise? engages and dismisses his own staf. The Om- The members of the Ombudsman’s staf prima- budsman currently employs roughly 120 people, rily have legal expertise. However, the Ombuds- about 60 per cent of them law graduates. man’s special advisor on children’s issues par ticipates in monitoring visits to institutions The management of the institution consists of etc. for children. The Danish Institute for Human the Om budsman, the Director General, the Rights contributes with human rights ex pertise, Deputy Director General and the Administrative and DIGNITY – Danish Institute Against Torture Director. A management secretariat and an contributes with medical expertise. international section support the management. Does the NPM have the necessary The Ombudsman’s ofce consists of two depart- fnancial resources? ments, a legal department and an administrative The costs of exercising the functions of the NPM department, which are further divided into a num- are fnanced via the overall Government appro- ber of divisions and units, respectively. priation for the Ombudsman.

The Ombudsman’s annual budget is approxi- Are monitoring visits carried out mately EUR 12 million. on a regular basis? Approximately 30 monitoring visits to institutions for adults and 10 to 12 visits to institutions General information about etc. for children are carried out per year. monitoring visits under the OPCAT mandate What types of institutions are 2. monitored? In 2009 the Danish Parliament passed an The Ombudsman monitors, among others, amendment to the Ombudsman Act enabling the following types of institutions where adults the Ombudsman to act as National Preventive may be deprived of their liberty: Mechanism (NPM) under the Optional Proto- col to the UN Convention against Torture and State prisons are run by the Prison and Proba- Other Cruel, Inhuman or Degrading Treatment tion Service and receive convicted persons who or Punishment (OPCAT). In the same year, the are to serve a sentence. State prisons may be Ombudsman started carrying out the functions closed or open. Closed prisons are character- of the NPM. ised by a high degree of security and control, whereas inmates in open prisons may be able to Is the NPM independent? work or take part in training or education outside The functions of the NPM are carried out as an the prison. However, there are also clear limits to integral part of the Ombudsman’s work. The inmates’ freedom of action in open prisons. Ombudsman is independent of the executive power and is appointed by the Danish Parliament. Local prisons are run by the Prison and Proba- The Ombudsman is independent of Parliament in tion Service and receive arrestees, remand pris- the discharge of his functions. oners and in certain cases convicted persons Appendix: General information | 103

who are to serve a sentence. Local prisons are Psychiatric wards are run by the regions and characterised by a high degree of security and receive psychiatric patients. Wards may be open control. (with unlocked outer doors), closed (with locked outer doors) or integrated (with outer doors or Halfway houses are run by the Prison and Pro- doors to certain sections being locked according bation Service and are used especially for the to patients’ needs). There are also forensic psy- rehabilitation of convicted persons who are ser- chiatric wards, which receive, among others, ving the last part of their sentence. Compared patients sentenced to placement or treatment in to prisons, halfway houses may have a high a psychiatric ward. degree of freedom. Social residential facilities are run by regions, Immigration detention centres are run by the municipalities or private parties and receive Prison and Probation Service and receive foreign persons with impaired cognitive or physical nationals who are to be detained, as a general functioning. In addition, they receive persons rule not for a criminal ofence but for reasons sentenced to placement in a social residential relating to the Aliens Act. facility. Outer doors are unlocked, except in secure units. Departure centres are run by the Prison and Probation Service and receive rejected asylum Care homes are run by municipalities or private seekers, persons sentenced to deportation and parties and receive persons with an extensive persons with tolerated residence status. The need for personal care, healthcare and extra residents are not under detention and are there- support in their daily lives. fore free to come and go. As a general rule, however, they are required to reside at the centre, The Ombudsman monitors, among others, including to spend the nights there. the following types of institutions etc. where children and young people may be placed: Asylum centres are run by municipalities and the Danish Red Cross and comprise, among Open residential institutions are run by muni- others, reception centres, where asylum seekers cipalities or regions and receive children and stay the frst weeks after arrival, and residential young people belonging to the target group for centres, where they stay while the authorities are which the institution has been approved. The considering their application for asylum. target group may be defned in terms of age but may also be defned in terms of needs, diagno- Police detention facilities are used to detain per- ses or disabilities. sons who are unable to take care of themselves, for instance due to intoxication. Partly closed residential institutions and partly closed units of residential institutions are run by Police custody reception areas are used for de- municipalities or regions and receive children tentions of very short duration without overnight and young people with criminal behaviour, sub- stays of arrestees. stance abuse or other behavioural problems. In these institutions and units, residents may be detained by periodic locking of windows and outer doors. 104 | Annual Report 2020

Secure residential institutions and high secure How are monitoring visits carried out? units of residential institutions are run by mu- A monitoring visit is typically a physical visit. nicipalities or regions and receive children and Before or following the visit, the Ombudsman will young people in order to prevent them harming ask for various information, for instance reports themselves or others or for observation or treat- of incidents involving use of force, records of ment. These institutions and units may also statements taken prior to the sanction of place- re ceive, among others, young people to be ment in a disciplinary cell being imposed, or in- remanded in non-prison custody during inves- formation from parents or other relatives. During tigation of their case or convicted young people the visit, the Ombudsman’s visiting team will who are to serve a sentence. Windows and outer speak with users, staf and the management. doors may be constantly locked, and place- ments of short duration in a seclusion room are The Ombudsman has designated the following permitted. general focus areas for his monitoring visits:

Accommodation facilities are run by private • use of force and other restrictions parties, such as foundations or enterprises, and • interpersonal relations receive children and young people belonging to • work, education and leisure time the target group for which the facility has been • health-related issues approved. • user safety • sector transfers Foster families are either general, reinforced, specialised or network foster families. A foster The prioritisation of the individual focus areas family may foster children and young people be- depends on the place visited. During specifc longing to the target group for which it has been monitoring visits, the Ombudsman may also approved. Reinforced foster families may foster focus on other issues, for instance buildings in children and young people with moderate to a poor state of repair. high support needs, whereas specialised foster families may foster children and young people In most cases, recommendations are made to with high support needs. the management of the institution already during the monitoring visit. 24-hour units of child and adolescent psychiatric wards are run by the regions and receive Following the visit, the visiting team will prepare a children and young people for examination or memorandum of the visit, and the Ombudsman treatment of psychiatric disorders. will subsequently send a concluding letter to the institution and the responsible authorities with Asylum centres for unaccompanied underage his recommendations. asylum seekers are run by municipalities and the Danish Red Cross and are residential centres DIGNITY – Danish Institute Against Torture and where unaccompanied underage asylum seek- the Danish Institute for Human Rights normally ers stay while the authorities are considering take part in preparing, carrying out and following their application for asylum. up on the monitoring visits. Appendix: General information | 105

Each year, the Ombudsman chooses, together Does the Ombudsman submit pro- with DIGNITY – Danish Institute Against Torture posals and observations regarding and the Danish Institute for Human Rights, one existing legislation or drafts for or more themes for the year’s monitoring visits. legislation? The majority of the monitoring visits to be carried The Ombudsman monitors that the authorities out during the year will be to institutions where observe the conventions within the framework of the themes will be relevant. A theme could be, for Danish legislation. instance, disciplinary cells or younger children placed in social care. The more politico-legal and advisory tasks in relation to the legislature are carried out by other After the monitoring visits for a given year have bodies, such as the Ombudsman’s collaborative been carried out, the Ombudsman prepares a partners in the discharge of his functions as NPM separate report on the year’s work in relation to (i.e. the Danish Institute for Human Rights and each of the themes for the Ombudsman’s moni- DIGNITY – Danish Institute Against Torture). Ac- toring visits to institutions for adults and children. cording to an established practice, the Ombuds- The reports summarise and present the most im- man does not submit consultation responses on portant results in relation to the themes. Re sults bills, with the exception of bills afecting matters may be general recommendations to the respon - which relate to the Ombudsman’s ofce itself. sible authorities, for instance a recommendation to see that institutions draw up policies on pre- The Ombudsman may notify the responsible vention of violence and threats among residents. minister and Parliament if a statute or the state The reports are also used as a starting point for of the law in a specifc area is not consistent with discussions with key authorities about general Denmark’s inter national obligations and a legis- problems. lative change may therefore be required.

Monitoring visits may cause the Ombudsman to open cases on his own initiative, with, among others, the authorities which have the remit for the relevant areas. This may be the case, for instance, with general problems which afect not only the specifc institution visited. An example of such a case opened on the Ombudsman’s own initiative was an investigation of whether it was permitted to initiate various types of measures in relation to psychiatric patients without statutory authority. This page has been intentionally left blank.