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.
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.
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.
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.
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.
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.
If you want to suggest a recipient, please write to the chairman of the board, Søren Fergo, at: firstname.lastname@example.org. 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.
Autumn Grant distribution October 2022
The following was awarded at The Thomas Gerstenberg Foundation in Support of The Rule of Law’s (TGF) office in Herlev on 27 October 2022: DKK 25,000 to former Danish Minister of Defence Claus Hjort Frederiksen (V), (in the middle of the group photo) for his efforts in connection with the preliminary charges that were attempted to be brought against him for breach of confidentiality concerning information learned in his capacity as the former Danish Minister of Defence.
Claus Hjort Frederiksen has maintained that he has only recounted what appeared in the
press. Nevertheless, the Prosecution Service sought to have his immunity as a member of
parliament lifted, as provided for by the Constitution in the event of preliminary charges being filed. However, a majority of the Danish Parliament did not want to lift the immunity because the Prosecution Service did not want to inform the members of Parliament about the breaches of confidentiality allegedly committed by Hjort Frederiksen. Naturally, the parliament, in this case acting as a court, which was refused information about the offence, could not lift the immunity, and so the Prosecution Service dropped the charge.
It is obvious that no one can be a judge in a case without knowing the full content of the case. Therefore, the case should never have been filed and the Prosecution Service action must be considered an attack on fundamental legal certainty.
Claus Hjort Frederiksen donated his grant to the TjekDet Association - the national portal for fighting fake news. The Association owns the nationwide, politically independent fact-checking media TjekDet.dk, whose representative was present to receive the grant. TjekDet.dk fact-checks claims in the public debate and corrects or nuances them in the fight against misinformation and disinformation. The Association - and the media - therefore carry out crucial work in support of legal certainty and democracy.
The Thomas Gerstenberg Foundation in Support of The Rule of Law (TGF) awarded an
additional DKK 32,000 to MP Søren Søndergaard (EL), (on the right in the group photo) and parliamentary candidate (EL) Tobias Clausen, (on the left in the group photo). They each received DKK 16,000 in recognition of their critical efforts in connection with Minister of Defence Morten Bødskov's information to Parliament that the estimated cost of establishing and possibly deploying a Danish defence contingent under the EU's Joint Defence Alliance would amount to DKK 0.
The two recipients pointed out that this would not be the case, because Sweden had already spent SEK 4.2 billion, including the cost of a standing readiness of SEK 800 million, and something similar must therefore be expected in a future Danish connection. Bødskov considered that the cost was zero, since a connection had not yet been established at that time and no costs had therefore been incurred for the deployment of peacekeeping forces and the establishment of a standing readiness. However, the Danish Parliament of course wanted to know what the costs would be once the connection was established (see the referendum of 1 June this year)
The communication was therefore misinformative (see Section 5 of the Ministerial
Accountability Act - in which misinformation of Parliament is an offence).
Finally, The Thomas Gerstenberg Foundation in Support of The Rule of Law (TGF) awarded DKK 25,000 to DaneAge Association (Ældresagen) that was accepted by CEO Bjarne Hastrup, who arrived just after the end of the award (therefore pictured here in a separate photo).
Christian Carlsen, a board member of The Thomas Gerstenberg Foundation in Support of The Rule of Law (TGF), gave the award together with Nordea's Fund Management.
DaneAge Association received the grant in recognition of the commitment to democracy and legal certainty that lies in the organisation's defence of society's older citizens, who in the modern and complicated IT world are stressed - sometimes to a debilitating degree - trying to keep up with rapid digital developments. It is a burden that, over time, can have a major impact on many citizens. They should, at the very least, have complementary access to more traditional, reassuring and low-tech solutions, so that no one is left out of society and communication with the public. It is a basic human right and therefore an inseparable part of a modern democracy, and a democracy must never be replaced by a technocracy.
S. Fergo, Chairman of the Board
Spring Grant Allocations March 2022
On 28 March 2022, distribution took place to two legatees at the Foundation's office address in Herlev.
The recipients were Rasmus Malver (on the right in the photo), chairman of Foreningen mod Logning (Association Against Logging), and Professor of Administrative Law Jens Elo Rytter (on the left in the photo), University of Copenhagen.
Rasmus Malver received DKK 20,000 for his contribution to law and order in his determined fight to stop logging and to have logging designated as unlawful.
Logging is when providers of electronic communication store important data from smart phones and computers online, as requested by the authorities. In particular, this is so that the police can use this data in their crime fighting efforts, also without informing users that this is taking place and without deleting this information.
Even though crime fighting is a necessary and desireable tool for a constitutional state, there are serious aspects to this logging. In principle, this is a violation of citizens' privacy and therefore of their legal rights, and similarly, the authorities' potential access to the total surveillance of all citizens is incompatible with a humanist democracy. It can be considered characteristic of a totalitarian state's lack of legal rights (violation of privacy).
The logging technology itself also carries risks of error with profoundly serious consequences. For instance, this was seen in the mast scandal, where errors in data about the de facto location of people's mobile phones at a certain time led to the prosecution having to review a large number of criminal cases where innocent people could have been – and were – charged with crimes they had not committed. In the case, the individuals (and their mobile phones) were wrongly identified as being present at a crime scene.
Both in the Charter of Fundamental Rights of the European Union, in the Lisbon Treaty as well as in judgments of the European Court of Human Rights in Strasbourg, logging has been found to be illegal, which is why the request of authorities to the communication media to tap, store and transmit private data, for example to police and other authorities, should be considered criminal.
However, not all EU Member States have followed these guidelines. Only some states have criminalised logging (Norway, Sweden, Germany, the Netherlands, Portugal and the UK). It is normal practice within the EU for Member States to adapt their legislation to the decisions and judgments of the EU authorities. However, there has been no political majority in the EU to sue or exclude those states, including Denmark, that will not fall in line. Foreningen mod Logning (the Association Against Logging), which R. Malver chairs, has therefore sued Denmark to have the Danish Logging Directive declared illegal, but he lost the case in the High Court (and subsequently also in the Supreme Court on 30 March 2022). In addition, there have been a number of landmark rulings on this issue, relating to privacy, where the Strasbourg Court of Human Rights has ruled that the Danish model is unlawful.
Offhand, many citizens would think that logging is an absolute benefit in the fight against crime, but one should consider the mentioned serious, principled concerns about the risks of logging. It is also significant that the Max Planck Institute in Germany has concluded that logging contributes little to the fight against crime. Since the police have other, better – and legal – tools in investigations, logging should not be accepted in Denmark in its current, privacy-invasive form.
In connection with protecting the privacy of the citizen, serious privacy concerns can also be raised, for example for when the use of cash is deliberately pushed out by the authorities in favour of electronic means of payment. A transformation that means that authorities of any kind can follow the private consumption pattern of the citizen wherever this involves payments. The same applies to registration in libraries, pharmacies, indeed anywhere where the citizen's actions involve the use of the CPR (civil registration) number. Bugging also has the potential to violate privacy, which has happened and continues to happen on several occasions, including when the police listen in on confidential conversations between a citizen and his or her lawyer. These conversations have been taped, transmitted and stored for a long time, without being immediately deleted.
A distribution is made to Professor Elo Rytter for his work on the CO2 emissions of hybrid cars, which the Minister for Transport and the Minister for Taxation had claimed represented a major reduction. An assessment that was passed on to the Danish Parliament, which was to use the information for the implementation of green legislation actions as well as for tax reductions on the import of hybrid cars (in this instance, the Minister for Taxation is the minister responsible).
It turned out that the ministers had already received the result of CO2 emissions from the Road Directorate, based on researched consumption patterns of drivers using hybrid cars. However, they had not disclosed this information, which proved that the ministers had underestimated the emissions, which were greater than they had assumed. Yet they failed to inform the Danish Parliament, which was repeatedly misinformed by the illegal withholding of important information relevant to legislation, cf. the Fund's autumn distribution on 27 October 2020, where Altinget received a grant for having revealed that the then Minister of Food withheld information on agricultural Co2 emissions (from the so-called lowland soils), correcting earlier and erroneous calculations submitted to Tinget, cf. also the Minister for Transport withholding the real CO2 emissions related to certain construction works (motorways and bridges).
In accordance with Section 5 of the Ministerial Responsibility Act of 1964, it is a criminal offence when authorities misinform, withhold or lie about information to the Danish Parliament, be it CO2 emissions or anything else of importance to the Danish Parliament's work with legislation.
Professor Jens Elo Rytter's efforts have been indirectly in support of law and order and indirectly also in support of democracy, through the documented emphasis on the interests of the Danish Parliament. For these efforts, he is honoured with the receipt of a grant of DKK 25,000.
S. Fergo, Chairman of the Board
Autumn Grant Allocations October 2021
On October 27, 2021, at the office of the foundation in Herlev, an autumn distribution was made to the following legatees (from left to right in the photo): Birgitte A. Eiriksson, Trine Torp, Liselotte Madsen, Katarina Ammitzbøll.
Katarina Ammitzbøll (C), Member of the Danish Parliament, received DKK 20,000 as part of the autumn distribution of 2021 for her efforts in saving the Hong Kong Chinese parliamentarian Ted Hui, who was jailed in Hong Kong for being a dissident and for fighting for democracy. Hui had his confiscated passport returned in order to allegedly hold a speech at an environmental conference, to which he had been invited by the member of the Danish Parliament. However, he used the opportunity to apply for asylum in England, where he now resides.
Through these efforts, Ammitzbøll and others supported the democratic movement in China and helped save an innocent politician from persecution in his home country.
A similarly courageous effort for a good cause is the reason why the TGF Foundation is awarding German chancellor Angela Merkel a grant of EUR 5,000 for helping to save the famous Russian democracy fighter Alexei Navalnyj. Alexei was known for being critical of the system and had been jailed several times in Russia for participating in peaceful demonstrations promoting democracy and criticizing the government. In a highly publicized event, he was also the subject of an attempted assassination by poison on his flight home from the city of Perm in Russia.
Germany had him sent for treatment to a hospital in Berlin, and in connection with this, the chancellor said that if Russia would not prosecute the persons behind the attempted murder and provide protection for Navalnyj, she would cancel the Nordstream 2 pipeline project (which is a very lucrative agreement for Russia that supplies gas through the Baltic Sea to Western Europe). For this courageous effort for humanistic democracy, A. Merkel was offered the aforementioned grant, which the foundation hopes to present to her when the occasion arises, either in Copenhagen or Berlin.
The think tank Justicia (via deputy director and lawyer Birgitte A. Eiriksson) was also awarded a grant of DKK 20,000 from TGF. This was due to its effort to strengthen the under-resourced citizen side in trials against the well-resourced public sector.
The chairman of the foundation underlined that this problem has deep historic roots, dating all the way back to England’s Magna Carta from 1215, when the king (interchangeable with the state), with his enormous power and resources in conflicts with to his subjects, was forced to protect the nobility (interchangeable with the citizen) and the church. In the event that the king did not uphold his promises, he had to accept that the citizens had the right of resistance.
Denmark too has a Magna Carta, better known as King Erik Klipping’s Haandfæstning (Coronation Charter) from 1285, in which analogous rules were introduced in order to limit arbitrariness and misuse of power. This is something coronation charters have repeated several times since in the royal line, most recently with the introduction of Grundloven (the Danish constitution) and its civil freedom catalogue (a sort of coronation charter for the constitutional state).
In connection with this, the chairman of the foundation stated that it would serve democracy and thus also due process if legal cases between civilians and the public sector were strengthened by better access to free process and by forcing the courts to provide a justification for their rulings. It should always be possible to freely appeal the rulings/decisions of the court and state once, so that the legal and state authorities cannot outmaneuver the weak civilian party in a conflict (via the Danish Appeals Permission Board).
The UN Convention on Human Rights also supports the right of appeal so that a more experienced court can provide a more elaborate “second opinion”. For use in the assessment of appeal, all trials and decisions that rule against the civilian party should be clearly reasoned by the court and authorities. Something that the judicial system today does not guarantee.
In addition, due process would be strengthened if cases against judges (including with respect to appeals) were not judged only by other judges (e.g. the Danish Appeals Permission Board) but by a special court which included parliamentarians – like you see in Commission cases. Finally, relevant expertise should be involved in all cases where such knowledge can help the court gain comprehensive insight. This should quite obviously be a basic part of due process, but this is not always the case.
The TGF foundation distributed DKK 25,000 to professor (MSO) Liselotte Madsen (AAU) for her demonstration that tax minister’s Morten Bøskovs (S) bill to revise the dividend tax rules is not sound and, therefore, would not prevent a repeat of the fraud that took place from around 2012 and onwards, resulting in a massive loss of DKK 12.7 billion for the state/society.
With respect to ownership of a share purchase in Denmark, the minister’s reform proposal included the requirement of prior registration for everyone as a condition for the owner to receive dividend refund on the withheld tax on the proceeds from the share trade. Madsen indicated that, often, the possession of shares is an indication of a loan and therefore cannot be registered as ownership of the share, However, even in such cases, a tax refund could be obtained from the 26% dividend tax that the state demands be withheld until the refund takes place if the respective refund applicant is a foreign citizen (which most speculators are) and is therefore not liable for tax in Denmark. The Danish Parliament was therefore repeatedly mislead with respect to the effect of the laws that the state wants parliament to pass. In so doing, the democratic-parliamentary order would be disregarded, and Ministeransvarlighedloven (the Minister Responsibility Act) of 1964 would be used, which virtually never happens.
It seems to be that the big state apparatus zealously punishes a weak/under-resourced party for any transgression, while its own violations of the law are not enforced. Oddly enough, the Danish Parliament finds itself in this clear breach of law and seems to let itself repeatedly be deceived.
During the commission’s questioning between 2012 and 2020, tax ministers have denied responsibility that the tax fraud scandal could have occurred and implied that responsibility instead falls on the civil service, which they claim failed to inform the tax ministers. The civil service, unsurprisingly, does not agree with this interpretation.
Finally, the TGF foundation distributed DKK 20,000 to Trine Torp, member of the Danish Parliament, for her efforts to improve the citizen’s legal rights by opposing the Danish Prime Minister’s statements that she would like to see more children forcibly removed from their parents.
To want more children to be forcibly removed is hardly a benevolent intention; instead, the Danish Prime Minister should look for funds to avoid such situations, e.g. by strengthening the public care system and helping families with children. Forcibly removing children is a psychological and social catastrophe, both for the children and parents.
In connection with this, the chairman referred to a passage from The European Convention on Human Rights (ECHR Art. 8) where it states: “[Forcible removal] constitutes a specific and serious threat to a child’s life and health if the child is placed outside the home.” It is further stated that “the administrative authority’s personal assessment and bias, in contravention of good administrative practice, all too often is the basis for forcible removal.” In connection with this, the undersigned referred to the massive criticism directed against The Agency of Family and Law (which has assumed the former powers of the administration in these cases).
Forcible removal should only be considered necessary when all other options have been tried and the child is still exposed to abuse or neglect.
S. Fergo, Chairman of the Board
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.