Thomas Gerstenbergs Fond til Støtte for Retssikkerheden har til formål at støtte retssikkerhed og demokrati i Danmark og udlandet.
Vi definerer demokrati som folkestyre med udbredt ytrings- og informationsfrihed. Retssikkerhed er en del af demokratiet og udtrykker retsstatsprincippet om at den gyldigt vedtagne lov er hovedledetråd for domstole og forvaltning, således at borgerne er sikret mod vilkårlighed i offentlige afgørelser og administration og mod magtfordrejning.
Fonden ønsker at støtte, at alt går lovligt og åbenlyst for sig, at borgere har indsigt i egen og vigtige offentlige sager samt er beskyttet mod vilkårlighed, og har klageadgang til uafhængige domstole.
De tildelte legater kompenserer symbolsk for de følger, være sig lovlige som ulovlige, skjulte som åbenbare, der på vindikativ måde kan tænkes tilføjet den indstillede som følge af hans eller hendes afsløringer.
Som almennyttig og ikke-erhvervsdrivende, er fonden fritaget for beskatning.
Når ministre skal forvalte deres resortområde, er det nødvendigt, at ministeren følger de juridiske råd som embedsmændene fremfører vedr. lovligheden af planlagte tiltag, selvom det går imod ministerens politiske ambitioner. Men det forudsættes herved, at embedsværket har den fulde juridiske viden om lovgivning og retspraksis på området. Embedsmændene må afstå fra at ville tækkes ministeren, for megen fortrolighed fører til begge parters fald, som det er set i flere kommissionsafgørelser siden Tamil-sagen.
Uden indsigtsfuldhed og respekt for loven, indtræder katastrofen, hvad enten ministeren ikke vil lytte eller rådgiverne er dårligt informerede.
Ministeren skal naturligvis behandle Folketinget med respekt og overholde principperne i Ministeransvarlighedsloven til punkt og prikke: ikke lyve, misinformere eller tilbageholde oplysninger overfor tinget - og dette gælder også for embedsværkets rådgivning af ministeren. Hvis disse simple og meget enkle regler var blevet fulgt, havde staten kunne undgå adskillige af de pinlige kommissionsundersøgelser.
Det ville i den forbindelse være anbefalelsesværdigt, om embedsmændene læste og lærte af Ombudsmandens årsberetninger og Kommissionsretternes afgørelser.
I 30’ernes Tyskland blev flere uhyggelige love vedtaget af parlamentet i.h.t. den lovlige forfatning og retssikkerhedmæssigt anvendt af domstole og forvaltning efter bogstav, selvom disse love manglede enhver humanistisk forbindelse og i virkeligheden var forbrydelser mod menneskeheden.
Derfor skal de humanistiske værdier indfortolkes i enhver dom, enhver forvaltningsakt, enhver lovvedtagelse og enhver lovfortolkning i overensstemmelse med de principper, der indeholdes i FN’s Menneskerettighedserklæring; Den Europæiske Menneskerettighedskonvention som fortolket af Strassbourg-domstolen, samt Grundloven.
Myndighederne skal altid handle ud fra de nævnte konventioners og Grundlovens humanistiske ledetråde. Sker dette ikke, kan det ende i katastrofe for samfundet sådan som det skete i det Tredie Rige med f.eks. T4-lovkomplekset (Tiergarten nr. 4). Her blev love vedtaget af det demokratisk valgte parlament efter alle regler (dog uden hensyntagen til den demokratiske humanisme) og forvaltet af myndigheder og domstole, stadig uden hensyn der til. Resultatet blev Nürnbergprocessen. Derfor handler demokrati og retssikkerhed nødvendigvis også om etik og empati.
Det burde være forventeligt, at statsforvaltningens øverste magter indenfor justitsvæsnet leverer den højeste grad af retssikkerhed, men jeg har i TGF, i medierne - og også som borger - oplevet adskillige sager, hvor dette slet ikke er tilfældet, men hvor Grundloven, Ministeransvarlighedsloven og grundlæggende demokratiske retsstatsprincipper er blevet tilsidesat. Et eksempel er det justitsministerielle høringsforslag om offentlige ansattes ytringsfrihed, rigsretssagen vedr. politiets m.fl. ulovlige indsats overfor Grundlovens ytringsfrihedsrettigheder i Tibet-sagen samt Tamilsagen, Instrukskommissionssagen samt Statsløsekommissionssagen m.fl.
Man vil forvente, at domstolene ikke skiller sig negativt ud, når det gælder retsstaten og retssikkerheden, men det synes desværre ikke at være tilfældet. Derfor har EU´s forfatning oprettet en menneskerettighedsdomstol i Strasbourg, hvortil alle borgere/organisationer i EU kan klage over de nationale domstoles afgørelser, når alle appelmuligheder er udtømte. Herudover er der oprettet en menneskerettighedsdomstol af FN, hvortil enhver kan klage over retlige afgørelser i nationalstaten for brud på FN´s menneskerettighedserklæring eller andre ratificerede konventioner.
Jeg oplever en tendens til, at domstolene undertiden tilsidesætter f.eks. saglige erklæringer som fremsættes af speciallæger til støtte for en sagsparts påstand således f.eks. en sag om en handicappets fritagelse for Nem-ID, som Justitsministeriet og Hovedstadsregionen havde indrømmet pågældende, men som domstolen tilsidesatte, trods protester, bl.a. ved ikke at svare i sagen vedr. begrundelsen for ikke at acceptere erklæringen. I en anden sag, hvor Procesbevillingsnævnet (hovedsageligt bestående af dommere) var sagsøgt, trakasserede retten søgsmålet, muligvis fordi dommerkollegaer skulle sagsøges.
Domstole vil normalt lægge fagkyndige erklæringer til grund for dommene, men når det gælder lægelige erklæringer, forekommer det at være anderledes, og en dommer kan undertiden føle sig berettiget til at tilsidesætte disse, i troen på at egen, almen-menneskelige dømmekraft kan trumfe sådanne erklæringer. For eksempel indenfor psykiatrien.
Er der tale om komplicerede IT-tekniske sager o. lign. vil en dommer sandsynligvis blive nødt til at lægge fagerklæringer til grund, alene ud fra selverkendt uvidenhed. Men Domstolene skal udvise ubetinget respekt for alle typer af specialfaglige erklæringer også indenfor f.eks. psykiatrien.
I den forbindelse vil jeg pege på Straffelovens §14 om nødret, hvor det i retspraksis er vanskeligt at trænge igennem overfor domstolene, når det gælder anerkendelse af dokumenteret sygdom, som begrunder anvendelsen af §14. Denne bestemmelse er til for retssikkerhedens skyld og må ikke tilsidesættes gennem eksempelvis meget indskrænkede fortolkninger. I detaljen (fx lægeerklæringen) ligger ikke djævelen, men retfærdigheden.
I disse sager, hvor domstolen ikke svarer og tilsidesætter saglige erklæringer, og på den måde trakasserer en endog handicappet retspart, er der tale om et retligt overgreb. Men når man henvender sig til Den Særlige Klageret, så finder denne, at der ikke er tale om kritisabel adfærd fra dommernes side. Ombudsmanden kan iflg. loven ikke gå ind i domstolssager, så der synes at mangle en uafhængig instans, som ikke kun består af dommere, der kan vurdere disse - og lignende sager- som et helt neutralt og fagligt organ.
Selvom anklagemyndigheden er "hovedleverandør" til domstolene, bør dommeren, i retssikkerhedens navn, gøre sig fri af enhver ekstraretlig følelse af forbundethed overfor denne myndighed, som han måske selv tidligere har været ansat i.
Jeg ser utallige sager beskrevet i medierne, hvor dygtige journalister afdækker misligheder og tilsidesættelser i myndigheder og forvaltninger, men når det kommer til domstolene, er disse tilsyneladende fredet, hvilket er direkte farligt for et sundt retsstatsdemokrati.
S. Fergo, formand for bestyrelsen
Læs fundatsen for Thomas Gerstenbergs Fond til Støtte for Retssikkerheden (senest revideret d. 23. juni 2015) - klik HER (pdf)
Fonden administreres af formand og kurator, advokat emeritus Søren Fergo samt to bestyrelsesmedlemmer; en bestallingshavende advokat og en kommunikationsmedarbejder.
Thomas Gerstenbergs Fond til Støtte for Retssikkerheden blev stiftet d. 8. april 2008 på Frederiksberg og er stiftet af - og navngivet efter - dr. Thomas Christian Gerstenberg, der gjorde karriere som overlæge, men fattede interesse for demokrati og retssikkerhed.
Thomas Gerstenberg døde d. 26. januar 2010, men efterlod sig i sit testamente udkastet til fundatsen for Thomas Gerstenbergs Fond til Støtte for Retssikkerheden.
Fundatsen blev - efter nogle års justeringer - omsider godkendt af Justitsministeriet og Civilstyrelsen d. 4. nov. 2014.
Fondskapitalen på ca. 5 millioner kr. blev indsat i Nordeas fondsforvaltning og i 2016 begyndte fonden sin udlodningsvirksomhed.
Hvis man deler interesse med fondens formål og ønsker at støtte dens arbejde, er man velkommen til at donere midler. Alle donationer til Thomas Gerstenbergs Fond til Støtte for Retssikkerheden er fradragsberettigede og vil indgå ubeskåret i udlodningerne.
Indbetalinger kan ske til Nordea:
Konto nr: 6892872498
THE THOMAS GERSTENBERG FOUNDATION IN SUPPORT OF
THE RULE OF LAW
The Danish name of the foundation: ‘Thomas Gerstenbergs Fond til Støtte for Retssikkerheden’ (TGF) translates to ‘The Thomas Gerstenberg Foundation in Support of The Rule of Law’ (TGF). The foundation is named after its late founder: prominent Danish Chief Physician and Researcher Thomas Gerstenberg.
The funds given by the foundation are symbolic compensation for the hardships often endured by those individuals or groups exposing governmental abuse of power or the violation of law that is often carried out through a deliberate misinterpretation or infringement of law.
TGF supports those in society who take an active role in the struggle of strengthening and ensuring the rule of law and democracy. As a non-profit and non-commercial foundation, TGF is partly tax exempt in accordance with the law, and so is any contribution donated to the foundation.
When ministers manage their areas of responsibility, it requires that the minister follows the legal advice provided by civil servants in terms of the legality of planned initiatives - even if it conflicts with the minister’s political ambitions. However, this also requires that the civil service has a comprehensive knowledge of the legislation and case law for the area. The civil servants must refrain from wanting to please the minister, as too close of a relationship leads to the downfall of both parties as has been seen in several commission rulings since the Tamil case.
Without insightfulness and respect for the law, catastrophes occur either because the minister refuses to listen or because those advising the minister are poorly informed.
The minister must of course treat the Danish Parliament with respect and comply with the principles of the Danish Ministerial Responsibility Act (Ministeransvarlighedsloven) to the letter: it is not permitted to lie, misinform or withhold information from the parliament, and this also applies to the advice that the civil service provides to the minister. If these clear and very simple rules had been followed, the state could have avoided several of the embarrassing commission investigations.
In this connection, it would be advisable for civil servants to read and learn from the ombudsman’s annual report and the rulings of the commission courts.
In the 1930s in Germany, several sinister laws were adopted by parliament that were not technically unconstitutional - and courts and administrations followed the letter of the law, even if these laws lacked any humanistic character and were in reality crimes against humanity.
Therefore, the humanistic values should be part of every legal ruling, every act of administration, every law-making process and every interpretation of the law in accordance with the principles of the UN Declaration of Human Rights, the European Convention on Human Rights as interpreted by the Strasbourg Court and the Danish Constitution.
The authorities must always act based on the abovementioned conventions and the humanistic character of the Danish Constitution. If this does not happen, society may end up with a disaster like what occurred in the Third Reich, for example, the Tiergarten no.4 body of laws. Here, laws were adopted by the democratically elected parliament which followed all of the rules (though they did not take into account democratic humanism) and they were administered by authorities and courts, still without any considerations for democratic humanism. The result was the Nuremberg trials. Therefore, democracy and the rule of law must also be about ethics and empathy.
It should be expected that the state administration’s top echelons in the judiciary system uphold the highest levels of rule of law, but in TGF, in the media and also as a citizen, I have had experience with several cases where this was not at all the case and where the Danish Constitution, the Ministerial Accountability Act and fundamental democratic legal principles were violated. Examples include the Danish Ministry of Justice’s proposed hearing on the freedom of speech of public sector employees, the impeachment case concerning the police, etc. violating the Danish Constitution’s free speech provisions in the ‘Tibet case’ and the ‘Tamil case’, the ‘Instruction Commission case’ and the SPCC, etc.
One would expect that the courts would not stand out negatively when it comes to the rule of law, but this unfortunately does not seem to be the case. Therefore, the EU Constitution has set up the European Court of Human Rights in Strasbourg, where all EU citizens/organisations can appeal against the decisions of national courts once all other avenues of appeal have been exhausted. In addition, there has also been created a UN court of human rights where anyone can appeal against judicial decisions in nation states that violate the Universal Declaration of Human Rights or other ratified conventions.
I find that there is a tendency for the courts to sometimes disregard things such as professional declarations made by specialist doctors in support of one party’s claims regarding, for example, an exemption from using NemID for a handicapped person which the Danish Ministry of Justice and the Capital Region of Denmark had admitted was relevant, but which the courts then disregarded - despite protests - by, among other things, not responding in the case and providing a justification for not accepting the declaration. In another case where ‘Procesbevillingsnævnet’ (an independent board deciding on appeals to higher courts) which mainly consists of judges had been sued, the court obstructed the suit, possibly because fellow judges were to be sued.
The courts will normally base decisions on professional declarations, but when it comes to medical declarations, it seems to not be the case, and a judge can sometimes feel entitled to disregard these with the belief that ordinary human judgment can trump such statements. For example, when it comes to the field of psychiatry.
If there are complicated technical IT lawsuits, etc. a judge will likely have to base his/her decisions on professional declarations, if only because the judge recognises his/her own ignorance about the topic. However, the courts must display an unconditional respect for all types of professional declarations, also when it comes to the field of psychiatry.
In that context, I would point out the Danish Criminal Code’s Section 14 on the legal concept of necessity is difficult to apply in practice when it comes to documented illness that justifies the use of Section 14. This provision exists to support the rule of law, and it may not be disregarded by using, for example, very narrow interpretations. The devil is not in the details (for example, a medical declaration) - rather, the devil is in justice itself.
In such cases where the courts do not respond and disregard professional declarations and thus violate the rights of a handicapped person, we are talking about a legal violation. However, when one asks ‘Den Særlige Klageret’ (a special section of the supreme court dealing with complaints against judges), this court will rule that the judges acted appropriately. The ombudsman is prevented from legally interfering with court cases, so it seems like there is missing an independent body that does not just consist of judges to assess these cases and similar ones as a completely neutral and professional body.
Even though the Danish Prosecution Service is the “main supplier” to the courts, the judges should - in the name of the rule of law - free themselves of any extra-judicial sense of loyalty to the authority that they may have previously been employed with.
I have seen countless cases described in the media where professional journalists expose irregularities and cases where authorities and administrative entities have disregarded evidence, but when it comes to the courts, they can apparently not be criticised, and this is outright dangerous for a healthy democracy based on the rule of law.
S. Fergo, Chairman of the Board
Read the charter for Thomas Gerstenbergs Fond til Støtte for Retssikkerheden (last revised on 23 June 2015) - click HERE (PDF)
The motto of TGF is: “The foundation that supports those who support the rule of law”.
This is at the heart of the foundation and governs which recipients receive funds. In the past, TGF has granted funds to whistleblowers, politicians, scientists, etc.
The Rule of Law
TGF defines the rule of law as an order of a state in which the laws given by the parliament are the sole foundation of any governmental administration and the sole foundation of all the judgments of any courts together with the interpretations of the laws as laid down by the supreme court and by the lower courts as far as their interpretations have not yet been contested by the supreme court.
We define democracy as a system of state in which freedom of information and speech as well as the rule of law are all of paramount importance. Of equal importance is easy access to independent courts and participation in free elections for all citizens.
Democracy and the rule of law are inextricably linked; one cannot envisage a democracy without rule of law, and it is difficult to imagine an autocracy that respects the rule of law.
Democracy is an expression of the will of the people exerted through a legislative assembly, which in turn stems from the right of all citizens to choose their representatives. These representatives form a government which - through established practices and in accordance with the law - exercise power within and beyond the country.
In a dictatorship, the populace does not have a free choice in this respect, as it is the dictator who decides everything irrespective of the will of the people. But democracy is also linked to Montesquieu’s writings on the separation of powers into three branches of government, where the parliament, the government and courts are independent bodies.
The courts in particular are independent of the government, and the government cannot remove judges from office. Parliament alone holds legislative power and exercises such power in binding agreement with the government and courts by means of laws. Accordingly, a government should not legislate directly nor indirectly through ministerial powers with a view to adjusting parliamentary legislation or formulating additional details into such legislation. Such actions should only be possible under the parliament’s clear oversight and consent. Nor should a government employ its enormous wealth of resources against disadvantaged citizens in a zealous drive to further its own agenda.
A government should instead seek amicable solutions with its citizens. Yet human rights are also a fundamental component of modern democracy.
Finally, the Danish Constitution, with its provisions safeguarding the freedom of information, freedom of speech, freedom of assembly, freedom of religion and freedom of association are also fundamental to our democracy. The right to life and health as well as the pursuit of happiness are also informally associated with our democracy, as they are the natural prerequisites for living and working under the protection of the Danish Constitution’s ‘catalogue of liberties’.
Funds cannot be applied for directly, but anyone is welcome to suggest individuals (one or more) or organizations that meet the TGF criteria via email. The suggested individual(s) or organization must have acted according to the purpose and intension of TGF in an impactful or significant way, and the actions must be documented.
If you want to suggest a recipient, please write to the chairman of the board, Søren Fergo, at: email@example.com. Please include the reason why you are suggesting the particular person(s) or organization and provide links to documentation and any relevant media coverage.
Please be aware that responses may take a month.
Who receives funds?
Twice a year, the TGF board of directors meets to discuss and choose the fund recipients.
Based on articles in the national and international media and press coverage or suggested qualified recipients, the board of directors decides who will receive funds.
The choices are based on judgment on the voluntary effort to support the rule of law and/or the strengthening of democracy in Denmark or abroad. The recipients are preferably Danish citizens, but it is not mandatory.
Funds will typically be awarded to living or deceased persons or organizations that independently, voluntarily, and altruistically have unveiled/exposed abuse of the rule of law or brought attention to infringements of democracy by or for an authority. Qualified defenders of democracy may also become recipients of funds.
Granting of funds is scheduled every year on March 27 and October 27. However, in 2020, the March grant was postponed to October 27, 2020 due to the COVID-19 pandemic situation.
NB: Photos prior to 2020 are not yet included on this page, but can be seen on the danish version here: LINK.
Spring Grant Distributions March 2021
On March 26, 2021, a spring distribution was made to the following legatees (from left to right in the photo) at the foundation's office in Herlev. (Photo taken by Mathias Aaen):
Journalist Carl Emil Arnfred, Politiken, together with journalist Hans Davidsen-Nielsen, Politiken, (NB: the latter not in the photo) received a grant of DKK 16,000 each for their efforts in covering the instruction commission case regarding former Minister for Integration Inger Støjberg (V). The two legatees have been following this case since it started, when a refugee couple, according to a general instruction from the Minister for Integration, were separated during their stay in Denmark.
The Refugee Convention, which has been ratified by Denmark, does not support a general separation of all asylum-seeking spouses, which is why there is a criminal offence on the part of the minister, which has now led to impeachment proceedings against the former minister. The fact is that a convention concluded between several states is first acceded to by the states that support the convention. Thereafter, the Convention is ratified through the parliaments, making it part of the applicable law.
As such ratification is binding only on the state, it has no immediate effect on the citizens, which is why a further implementation is required to achieve this legal effect, whereby the convention is incorporated into the positive law as ordinary law. However, not all ratified conventions according to the nature of the case are suitable for an implementation so that, among other things, the Refugee Convention alone remains binding on the governments of the ratifiers.
The two legatees received the grants for their thorough investigation and clear press reports of this relatively complicated case, the efforts of which have thereby been able to promote the necessary information to the population, which is precisely an essential precondition for the functioning of the modern democratic rule of law.
Although it does not appear directly from the Danish Constitution's provisions on freedom of expression, freedom of information is a necessary and logical precondition for freedom of expression: without information to the public, the public does not have much to say, and it is here that journalists' importance for democracy is emphasized in the concept of a free press.
Unfortunately, H. Davidsen-Nielsen could not attend the ceremony, which is why he received the grant in absentia. (This is why he is not to be found in the group photo).
The foundation also distributed a grant of DKK 20,000 to MP Jane Heitmann (The Liberal Party of Denmark) in recognition of her efforts as rapporteur within the field of psychiatry and the elderly in the Danish Parliament.
Jane Heitmann, who is currently also chairman of the Danish Parliament’s health and elderly committee, has made an important effort in connection with the detection of serious violations related to, among other things, the management of the prioritisation of protective equipment during the Covid-19 pandemic in Denmark. The background was that the nation - like almost every nation in the world - faced the Corona pandemic totally unprepared.
It is in itself almost a crime against humanity that the states responsible act irresponsibly by not preparing themselves for the epidemics that, since the Spanish flu, are invading the population every second or third year and some of which are capable of becoming a pandemic. The nations of the world are permanently arming themselves against the risk of a war, but forget to prepare themselves for pandemics, even though they know very well that they can cost far more lives than a war and that they can destroy the world economy and ruin states.
The lack of preparation meant that protective equipment was quickly rationed and that the state therefore had to prioritize the distribution. On 11 March 2019, the Danish Prime Minister stated that the elderly and infirm in nursing homes and in their own homes should be the first priorities. But the protective equipment was still given to the regions (i.e. the hospitals) and not to the municipalities (i.e. the nursing homes and home carers) with the result that hundreds of elderly people died with Covid-19 due to lack of protective equipment for both staff and residents.
This whole disaster was repeated in the time leading up to Christmas 2020, when nursing home staff and home carers were not vaccinated with the explanation that there was a lack of staff to carry out such mass vaccination, although it turned out that hundreds of organized staff were ready to roll out the vaccine - but the government was not asking them to. The result of this waste was that 473 elderly people subsequently died, infected with Covid-19.
In an attempt to place responsibility for these disasters, Heitmann has done a great deal of pioneering work, thereby showing the way to uncovering the public administration with the Minister for Health at the helm.
Many journalists and some MPs and also the TGF Foundation (Thomas Gerstenberg Foundation in Support of The Rule of Law), requested access to documents to find out who was responsible. They encountered nothing other than an enormous amount of references to various emails and classified correspondence, and the simple question of who was responsible was left unanswered. On the other hand, the chairman of the foundation finds that one should cut through the tape and refer to the Ministerial Accountability Act and its analogy, and of course hold the relevant minister responsible for the mistakes.
The foundation also awarded DKK 10,000 to socio-assistant Ann Coletta Hanning, who received the grant in recognition of her efforts for freedom of expression, since she was dismissed from Slagelse Hospital on the grounds of "cooperation difficulties".
Hanning worked in the hospital's intensive care unit, but at one point the ward's nurse was called to another ward, after which Hanning was alone in the ward which violated the regulations. She made a complaint to the management, which led to them choosing to dismiss her. The hospital later changed this by offering the legatee to continue in her position so that the termination was thereby withdrawn without further consequences. However, as Hanning did not receive any guarantee that the alleged situation would not be repeated, she chose to resign of her own free will.
The foundation sees this case as a typical violation of employees' freedom of expression when they complain about errors in accordance with the terms of employment, which are not immediately rectified and are excused by those responsible for the dismissal. See also, for example, the foundation's first statement about a similar wrongful dismissal, as well as the foundation's later statement to a number of organisations representing employees in the public sector, where former Minister for Justice S. Pape Poulsen tried to decimate the constitutionally protected freedom of expression.
TGF awarded a grant of DKK 20,000 to Digitalt Ansvar (Digital Responsibility) through board member lawyer Ebbe Holm (far right in the photo).
The Digital Responsibility Association is among the very few who make an important contribution to the rule of law by wanting to hold accountable the many commentators on social media who exploit the unbridled freedom of speech on these sites to - without liability - be able to misinform, insult, spread false rumours and, without liability under the penal code, illegally and without documentation to persecute others for criminal offences or make illegal disclosures of others' protected privacy, make racist statements, be sexually offensive and make threats, etc. It is absolutely unbelievable that a so-called rule of law permits all these pests and shrill hatred without intervening. This is clearly not a matter of freedom of expression that deserves protection, but rather a gross abuse of freedom of expression.
Digitalt Ansvar works to stop these offences by forcing through legislation against the management of the major IT platforms to weed out hate speech, misinformation and undocumented personal attacks, etc. on the Internet and use the weapon of exclusion against these criminal users. If, for example, Google and Facebook themselves do not intervene effectively, legislation must also be enacted internationally through conventions and ultimately providers must be made criminally liable for their users' illegalities when they choose to support them instead of stopping them. It is, after all, the same order that the state of law maintains in regard to the general press when an editor-in-chief, according to the Danish Press Act, is liable for what he or she brings to the press.
In the case of these illegalities, there is a violation of the legal security of citizens, which the state is responsible for protecting through its and the Parliament's legislation. By not confronting the illegalities, the state incurs a serious co-responsibility.
S. Fergo, Chairman of the Board
Grant Allocations 2020
On 27 October 2020 three grants were distributed at the TGF office in Herlev to MP Pia Kjærsgaard (the Danish People’s Party, DF), political newsroom, Altinget, represented by Editor-in-Chief Jacob Nielsen (on the left in the photo), and Professor, Doctor of Laws, Professor with Special Tasks in Constitutional and Administrative Law and Head of Research at the University of Southern Denmark’s Department of Law Frederik Waage (right in the photo), respectively.
A grant of DKK 45,000 was awarded to MP Pia Kjærsgaard (DF) in recognition of her political efforts to promote democracy and the rule of law in Denmark. Pia Kjærsgaard has previously made proposals for parliamentary inquiries in connection with scrutiny of ministers' administration of laws and ratified convention provisions. These parliamentary inquiries were to enable the questioning of officials, as is already possible in the parliamentary commission inquiries.
Kjærsgaard has emphasized that in the Danish Parliament, there is a need for easier, cheaper and faster processing when justified criticism is raised against the government ministers. But in the parliamentary elections 2020, a new chairman of the Danish Parliament was appointed: Henrik Dam Kristensen (the Social Democratic Party, S), who did not want to promote the proposal for parliamentary commissions. Dam Kristensen was supported in this by a Justice of the Supreme Court who had expressed concern that "access to the questioning of ministerial officials could strain the confidential relationship between ministers and their officials."
In this connection, TGF's chairman of the board points out that officials are already being questioned to a large extent in commission inquiries such as the stateless commission inquiry and the instruction commission investigation, without being viewed as an offence by the Justice of the Supreme Court. Too much confidentiality between ministers and officials often leads to the downfall of both parties, just as can be seen in the above-mentioned commission inquiries. There is a need for less confidentiality and more objectivity in these relationships.
Finally, Pia Kjærsgaard received the award for her initiative to "regain the power that the government has assumed from the Parliament." This refers to the comprehensive empowerment legislation that gives ministers the opportunity to draw up administrative legislative implementations within a large number of laws outside the scrutiny and participation of the Parliament to the same extent as in regular legislative processes.
However, it is clear that in this way comprehensive and important decisions can be made which in a democracy call for parliamentary scrutiny.
The Foundation finds that if the initiative for parliamentary inquiries is implemented it will, to a large extent, strengthen the conditions of democracy and indirectly also the rule of law in Denmark. The chairman of the Foundation adds that the problem of so-called 'free discretion of the administration', which is largely unchecked by the courts, should also be included in parliamentary scrutiny.
A grant of DKK 25,000 was awarded to political newsroom, Altinget, represented by Editor-in-Chief Jacob Nielsen, for his fine journalistic work in support of democracy in Denmark. Through careful scrutiny and access to documents in the ministerial emails, the Alting has uncovered important, withheld data in connection with Minister of Food, Fisheries and Equal Opportunities Mogens Jensen's (S) information to the Parliament regarding agricultural carbon emissions. The Parliament had originally approached the Minister for information about the total agricultural carbon emissions for use in negotiations regarding green initiatives.
The Ministry had delegated the calculation to the University of Aarhus' Faculty of Mathematics and Statistics, which stated a result that was passed on by the Ministry to the Parliament. Shortly afterwards, the University of Aarhus announced that a significant calculation error had been made in the material, so that the emission was faulty. The Minister of Food, Fisheries and Equal Opportunities and his officials then discussed internally whether the Parliament should be informed about this. It was agreed not to inform the Parliament, but instead to wait for the faculty's detailed explanation of the error's origin and significance (as if the Parliament were more interested in mathematics than in being informed of the error as soon as possible).
Ministries and governments that in this way override the consideration of the supreme authority of the kingdom are unfortunately widespread and therefore a focus of TGF’s distributions. The Foundation wants increased attention to, and combating of, misinformation and withheld information to the Parliament. Since this continues to occur frequently, the Foundation advocates increased use of the Ministerial Accountability Act of 1964, according to which this type of act is found to be punishable. In practice today, however, there are few, if any, consequences for any minister who violates the Accountability Act, which is detrimental to a democratic rule of law and the legal consciousness of the people.
Finally, Frederik Waage, Professor, Doctor of Laws, Professor with Special Tasks in Constitutional and Administrative Law and Head of Research for the public law group at University of Southern Denmark Odense’s Department of Law, received a grant of DKK 25,000 to shed light on the legal relationship between the state and citizens in connection with cases before the courts. In his work and especially in his doctoral dissertation (2018), he has criticized the resource mismatch between the public and civilians in court proceedings. He has pointed out that the state as a litigant is more concerned with winning cases than listening to the weaker counterpart (the citizen) and thereby seeking an acceptable solution for both parties, through democratic negotiation, rather than an expensive, legal confrontation.
The idea of the main task of state power in relation to the citizens goes all the way back to the principle of consideration that was affirmed in Magna Carta about the state's raison d'être. Frederik Waage has sharply criticized the state's lawyer, the Legal Advisor to the Danish Government, for putting court victory ahead of the consideration of the weaker litigant, who is most often the private citizen, at all costs.
Professor Waage introduces a previously unknown, or underrated, phenomenon in the legal process between state and citizen, namely, the decent consideration as opposed to the common striving for court victory above all. In this way, Frederik Waage contributes to strengthening the democracy and the rule of law in Denmark.
S. Fergo, Chairman of the Board
Autumn Grant Allocations October 2019
On 25 Oct 2019, at the offices of TGF, c/o attorney Christian Carlsen in Herlev, the allocation of 4 grants of DKK 16,000 each as well as an allocation of DKK 20,000 were given to the following recipients, from left to right on the group photo:
Oluf Jørgensen, Head of Research at the Danish School of Media and Journalism, received a grant of DKK 20,000 for his critique in the media about the consultation proposal that dealt with guidelines for public employees’ freedom of speech, which Søren Pape has put forward as an addition to the legislation from 2006.
Jørgensen has stated that the Ministry’s guidelines will significantly curtail public employees’ freedom of speech as set down in the law in regard to their workplace procedures and decisions when these are found to be flawed, inadequate or arguably unlawful. Oluf Jørgensen also received the grant for his article in Jyllands-Posten (on 21 April 2019) about public employees’ freedom of speech.
Camilla Gregersen, Chairman of the Danish Association of Masters and PhDs, received a grant of DKK 16,000 for her statements in the press regarding the aforementioned consultation proposal from the Minister of Justice, where she commented that the proposal - if it were to be approved - would impede freedom of speech and that public employees must be able to confidently express criticism when decisions seem unlawful, incorrect or are deemed to not be in accordance with the law.
Member of Parliament (Red-Green Alliance) Rosa Lund received a grant of DKK 16,000 for her efforts to invite the Minister of Justice to account to the Parliament in a consultation, in order to respond to the major criticisms that had been generated by his consultation proposal.
Rami Chr. Sørensen, Legal Director for the trade union DJØF, received a grant of DKK 16,000 for his critical statements regarding the Minister of Justice’s consultation proposal. Rami Chr. Sørensen has stated to the press that there would be few public employees who would want to submit timely criticisms in an official capacity when the consultation proposal casts doubt on whether one had the right to publicly express criticism without the employee facing negative repercussions.
Pernille Boye Koch, Associate Professor in Public Law at Roskilde University, also received DKK 16,000 for having supported the rule of law with her statements to the press that by reading the consultation proposal, one is left more confused than guided.
The grant recipients have through their publicly stated and justified criticism of the Ministry of Justice’s consultation proposal strengthened the rule of law in Denmark, since their critiques have contributed to the consultation proposal being withdrawn and not being put to a vote in Parliament. Consequently, the existing law of 2006 on freedom of speech for public employees has been preserved; a law that does not contain all the limitations, exceptions and implicit warnings to employees about expressing themselves, as was a prominent feature of Søren Pape Poulsen's consultation proposal.
S. Fergo Chairman of the Board
Spring Grant Allocation March 2019
Spring Grant Allocation March 2019 pays tribute to an important action against the Ministry of Taxation’s "meet and greet" with the tobacco industry.
On 21 March 2019, spring grant allocations were held at Thomas Gerstenberg Foundation in Support of the Rule of Law (TGF), where DKK 40,000 went to Charlotta Pisinger, Professor of Public Health at Copenhagen University and to Knud Juel, Professor Emeritus of Public Health.
The grant is given for their efforts to defend the rule of law, by having demonstrated that the Ministry of Taxation is not compliant with the provisions of the Framework Convention on Tobacco Control (ratified by Denmark in 2015 and thereby coming into effect as Danish law) (cf. the Convention’s Section 2, Paragraphs 1 and 2).
The Minister of Taxation Karsten Lauritzen (Venstre - the Liberal Party of Denmark) held a total of three not absolutely necessary ‘meet and greet’ meetings with the tobacco industry’s lobbyists, in spite of the ratified provisions prohibiting such meetings with the industry, with the exception of strictly necessary ones and solely for the purpose of regulating the tobacco industry. Confronted with this non-compliance with the rule of law, the Minister of Taxation defended himself with an unprecedented assertion claiming that the Framework Convention is "ridiculous".
Within the Ministry of Health, however, the Framework Convention is of the utmost importance and must of course be upheld - just as any other Danish law must.
The reason for the disagreement likely stems from conflicting interests: the Minister of Taxation welcomes the many millions that taxes on tobacco adds to the Treasury, while the Minister of Health bemoans the 14-15,000 annual tobacco-related deaths, which this industry causes in Denmark.
No Minister of Taxation should ever rejoice in the DKK 7.1 billion that the Treasury reaps from tobacco taxes annually. Not only must it be weighed against the thousands of tobacco-related deaths. There is also a long series of consequences such as associated illnesses and health issues which are of great expense to the hospital services and medicine, care in the home and at institutions, sick leave, early retirement, etc. The annual bill runs up to approximately DKK 12 billion. This is why it is not simply a matter of great loss of life and quality of life, but it also results in tremendous socio-economic costs.
S. Fergo, Chairman of the Board
Autumn Grant Allocations October 2018
On 23 October 2018, there was at the Foundation’s premises in Herlev an allocation of a grant of DKK 25,000 to Eva Smith, Professor Emerita of Criminal Law at Copenhagen University.
She was awarded the grant because she alone - prompted by a deep respect for the rule of law - had publicly challenged the statements issued to the press by Public Prosecutor Jan Reckendorff when he accepted his appointment to the post.
The Public Prosecutor stated that if the government asked it of him, he would go as far as he could to accommodate them. The grant recipient pointed out that in Denmark we have a long tradition of objectivity in the administration, which entails that private citizens, prime ministers, members of government and others should not hold undue influence over public prosecutors, chiefs of police, judges, prosecutors, etc. (in connection with the administration of criminal law management) with their political opinions and preferences, but that it is solely the law and legal practice that forms the foundation for these individuals’ administration of e.g. the penal code, including prosecutions, etc.
This is also related to the fact that the law as a foundation establishes the rule of law and any breach of this fundamental principal is an attack not only on the rule of law but also democracy.
The Foundation finds it concerning that senior officials have not grasped this simple message: that the law alone is the foundation, since it is given democratically by the Parliament as an expression of the common will of the people.
Any given prime minister or public official, including a public prosecutor, does naturally not represent the will of the people and does therefore not possess legal legitimacy in the administration of their office to allow themselves to be controlled by anything other than the law. To act accordingly is to objectively carry out the duties of the office. To declare that one will be influenced by anything other than the law is in direct contradiction to democratic principles.
On that same date and at the same venue, the Foundation also gave a grant of DKK 35,000 to Anders Højmark Andersen, Chairman of the Tibet Support Committee (second from left in the photo). In this case too, the justice department had committed a grave error in the enforcement of not just the law, but the constitution itself with its guarantee of public freedom of expression and assembly.
The Ministry of Foreign Affairs, the police department, the Ministry of Justice and the Danish Security and Intelligence Service had apparently allowed for financial interests in connection with the Chinese president’s state visit to Denmark to take precedence over the constitution by taking prohibitive actions against the permitted, legal and peaceful demonstration arranged by the Tibet Support Committee in a democratic defence of Tibetan independence in relation to China’s conduct in the country.
The allocation was given in recognition of the committee’s active defence of Tibet’s democratic autonomy and rule of law, but also for putting vital focus on the rule of law in Denmark and the freedoms granted by the constitution and thereby also calling attention to how the Constitution was continually under attack.
S. Fergo, Chairman of the Board.
Spring Grant Allocation March 2018
On 21 March 2018, the Foundation held its Spring Grant Allocation of DKK 80,000, which was shared equally between Simon Kollerup (Social Democrats) and Ib Poulsen (Danish People's Party).
The two MPs received the grant for their critical efforts regarding the quota-king case, where the Minister for Food, Agriculture and Fisheries through a parliament majority had received instructions to phase out the practice in the fishing industry where a few financially strong fishermen acquired fishing quotas from other fishermen and thereby decimated their business activities. The Parliament wanted this detrimental practice stopped and instructed the ministry to obtain proposals for limiting the quota-king activities.
These proposals, however, were "tucked away" in the ministry to the detriment of the democratic work of Parliament. The two abovementioned members raised harsh criticism in Parliament and in the press of this completely unacceptable conduct undermining parliamentary work - and it is in recognition of this effort, to strengthen democracy and the rule of law, that the Foundation has awarded these two grants.
The Parliament has moreover appointed a parliamentary ombudsman to oversee that the Parliament is not obstructed by a minister either through procrastination or by withholding information or by misinforming Parliament. The Speaker of the Parliament, too, had the opportunity to intervene against the obstruction that transpired in the quota-king case when the ministry did not deliver as instructed. But public officials who had been involved in the preparation and execution of the proposed phasing out of the quota-king phenomenon, could and should have raised the alarm when the proposal was shelved by the minister.
These are issues that the public officials in the ministry - who on a daily basis and in close collaboration with the minister work on these issues, indeed, even develop them in great detail - ought to have discovered and brought up to either the Speaker of Parliament, the press or the parliamentary ombudsman, who on several occasions has complained that the public officials are apparently reluctant to let healthy criticism escape the corridors of the ministry, cf. the department’s homepage where there is a section on confidentiality and the consequences of being in breach.
S. Fergo, Chairman of the Board
Grant Allocations for the Calendar Year 2017
In 2017, the Foundation awarded DKK 25,000 to Hanne Agersnap for her efforts to support the rule of law in connection with the establishment of the Stateless Commission, which lead to justified criticism of the former Minister for Refugees, Immigrants and Integration.
The case concerned a breach of good governance of the Danish ratified UN Convention on young stateless Palestinian refugees in Denmark, which lead to the minister being dismissed and in turn serious criticism was also raised against the minister’s head of department and permanent secretary, who were also required to leave the ministry.
DKK 30,000 was shared between Karin Friis Bach and Marianne Frederik (from the party Red-Green Alliance) for their efforts in connection with the preservation of the whistle-blower scheme in the capital region, which a number of political parties wanted to cut funding for. This led to the preservation of the scheme in the region, to the benefit of the rule of law, which the whistle-blower scheme helps to safeguard.
Earlier this year, the Board also contacted the Russian democracy advocate and dissident Ildar Darin in Moscow and informed him that the Foundation wanted to award him a grant of EUR 4,000 in recognition of his fight for democracy and efforts to combat the persecution, hereunder imprisonment and torture, of dissidents in Russia. Dadin had according to the press just been released from a prison in Moscow, where he was allegedly tortured. However, his wife, journalist Anastasia Zotova, stated on his behalf that he did not wish to receive the grant. The sum of the grant is therefore carried over to grant allocations in the calendar year 2018.
S. Fergo, Chairman of the Board
The Foundation's first allocations
Among TGF's very first recipients of grant allocations was the organisation Veron - the whistle-blower organisation in Denmark defending whistle-blowers’ legal rights.
Helle Olsen also received a grant of DKK 7,500 for exposing fraud at her place of employment in Odense Municipality, where recyclable waste was fraudulently accounted for as mould, but was actually construction waste which is calculated at a much lower rate than mould.
Having exposed this, she was fired by management on the grounds that she should have complained, not to the union but to management, although the ombudsman had ruled that employees are not bound by this requirement, since it is illegal and consequently her dismissal was also unlawful.