Denmark, Folketingets Ombudsmand

Denmark, Folketingets Ombudsmand

International Contacts

Conferences attended in April, May and June 2000

12-15 April, Ombudsman Hans Gammeltoft-Hansen attended a West Nordic Ombudsman meeting in Oslo, Norway
26 June, Ombudsman Hans Gammeltoft-Hansen attended the 3rd Meeting of the EOI/IOI Joint Coordinating Committee in Frankfurt

Visitors received in April, May and June 2000 were:

13 April, a delegation from People’s Consultative Assembly, Republic of Indonesia
28 April, the European Commission against Racism and Intolerance (ECRI)
2 May, Human Rights Advocate Dr. Lao, Executive Director, The Khmer Institute of Democracy, Phnom Penh, Cambodia
9-10 May, a delegation from Bangladesh
11-14 May, Public Protector Mr. Selby Baqwa, South Africa
12 May, Ombudsman Mrs. Vera Leth, Greenland
24 May, a delegation from the Council of Europe Advisory Committee for the Framework convention for the Protection of National Minorities
31 May, Professor Iwao Maeshima and Professor Fukashi Utsunomiya, Tokai University, Japan
6 June, a group of Albanian law students from the School of Magistrates in Tirana, Albania
8 June, Supreme Court Judges Professor, dr.hab. Lech Gardocki and Professor, dr.hab. Tadeusz Erecinski, Poland
15 June, a group of Albanian civil servants attending a European Union seminar
26 June, a group of African students.

Substantial Matters

Annual Report 1999:

In September 1999 the Danish Ombudsman submitted his Annual Report to the Parliament. Here are some key figures:

In 1999 3423 new complaint cases were submitted. 65 individual cases were taken up on the Ombudsman’s own initiative. Inspections performed were 18.

In comparison, the total number of new complaints registered for the past ten years is stated below:

1990    2233
1991    2566
1992    2926
1993    2943
1994    2937
1995    3030
1996    2914
1997    3524
1998    3630
1999    3423

2425 of the 3423 cases from 1999 were not investigated for various reasons. - 1231 cases were not ready for investigation by the Ombudsman and had been sent to the proper administrative authority. In total 949 cases were processed in 1999. 118 of these cases involved criticism and recommendation.

Some selected examples of cases processed in 1999 are the following:

1-3. Administrative Law 115.1 – 123.3 – 261.5.
Decision to cancel unemployment fund membership. The principle of proportionality. Obligation to give guidance. Depositing

A man lodged a complaint with the Labour Market Appeal Board against the Directorate of the Unemployment Insurance System, which had decided to cancel his membership of an unemployment fund because he had not paid Dkr783 to another unemployment fund in time. The complainant stated that he had deposited the relevant amount. He was not informed that depositing the money did not have releasing effect until the Labour Market Appeal Board more than six months later decided that the cancellation of his unemployment fund membership was correct.

The Ombudsman found no grounds for criticising the Appeal Board’s view that depositing the money did not have releasing effect. On the other hand he felt it must have been fairly obvious to the authorities that the complainant was under a misapprehension with regard to the releasing effect of depositing the money. The Directorate therefore should have given him guidance in this respect. The Ombudsman noted that observance of the obligation to give guidance was particularly important in cases with very far-reaching consequences.

In the Ombudsman’s opinion the decision to cancel the complainant’s unemployment fund membership had a very severe effect on his financial situation as he for instance lost his right to transitional benefit. It was therefore open to doubt whether the decision was in accordance with the principle of proportionality. (J.no.1998-0945-020).

7-1. Administrative Law 123.1 – 123.2 – 2.3 – 3.5. – Press and Radio 1. – Constitutional Law 3.2.
Publication of two letters to the editor of a school magazine – freedom of expression

A father lodged a complaint against the editor of the school magazine at his child’s school, who had refused to publish two letters from him. The school committee and the local authority endorsed the editor’s refusal. Among other things the local authority argued that the magazine should be suitable reading for both pupils and parents and that the tone of contributions therefore must be friendly and positive. Neither the board of supervision nor the Ministry of the Interior believed that the case involved any illegalities.

The Ombudsman only considered whether the board of supervision and the Ministry should have criticised the local authority’s case consideration pursuant to the local authority supervision system.

In the Ombudsman’s opinion the rejection of the letters could not be described as censorship in the constitutional sense or as contrary to Section 10 of the European Human Rights Convention concerning freedom of expression. However, he stated that regard for the freedom of expression must be given a high priority in the authorities’ assessment. Thus there must be good reasons against publishing the letters. The board of supervision, among others, should have conveyed this to the local authority.

It did not give the Ombudsman occasion for comment that the board of supervision and the Ministry considered it reasonable to take into account that contributions to a school magazine should be suitable reading for both pupils and parents.

On the other hand the Ombudsman considered it incompatible with the regard for the freedom of expression to reject contributions simply because their tone or content was not positive or friendly. He therefore concurred in the Ministry’s view that it was doubtful whether this consideration was reasonable. (J.no.1998-1809-710).

7-4. Administrative Law 1121.1 – 296.1.
Reconsideration. The inquisitorial principle

A lawyer lodged a complaint on behalf of his client, a Zairian citizen, against the Ministry of the Interior, which had refused to reconsider a case concerning the withdrawal of the client’s residence and work permits. When applying for reconsideration the lawyer stated that his client had given incorrect information in connection with the assessment of the asylum case. He had said that he had travelled to Denmark from Zaire, but in fact he had arrived from France where he had lived since 1972.

The Ministry of the Interior did not consider this information sufficient to warrant a reconsideration of the case and referred to the client’s explanations during the asylum procedure.

In the Ombudsman’s opinion the Ministry should have attempted to check the accuracy of the new information and assessed its importance in connection with the withdrawal of residence and work permits as a consequence of the inquisitorial principle.

On this background, the Ombudsman recommended that the Ministry of the Interior reconsider the case. (J.no.199-0205-642).

7-4. Administrative Law 1.2 – 123.3 – 29.6 – 296.2.
The immigration authorities’ prescription of motivation-promoting initiatives

A Yugoslav citizen’s application for a residence permit was rejected. If he did not leave voluntarily, he would be deported by the police.

The man, who was staying in T?rnby, did not wish to leave the country and was ordered to report daily to the Sandholm Camp. This involved 3-4 hours travelling every day. It was also decided that for the time being he would receive no subsistence, clothes or pocket allowance or have access to voluntary activation and education (motivation-promoting initiatives).

The Ombudsman agreed that the obligation to report was authorised by the Aliens Act, but noted that the assessment of whether and how to impose the obligation was subject to restrictions. For instance the principle of proportionality obliged the authorities not to impose greater burdens on the citizens than the intention justified. The Ombudsman could not take for his basis that the authorities had considered whether the obligation to report could be administered in a less intrusive way.

On the other hand the Ombudsman found no grounds for criticising the decision that the man should receive no subsistence, clothes or pocket allowance.

In addition the Ombudsman, the Ministry of the Interior and the Danish Immigration Service agreed that the Aliens Act did not warrant refusing the man the right to participate in voluntary activation and education. (J.no.1998-3456-649).

8-2. Administrative Law 1121.1 – 113.3 – 113.4 – 1134.2 – 1134.3.
Evidence in connection with the removal of an interpreter from register of interpreters

The Ombudsman did not find adequate grounds for criticising that the Commissioner of Police had refused an interpreter access to extended hearing of parties in connection with a case concerning removal from the Commissioner’s register of interpreters. In the Ombudsman’s opinion it would however have accorded best with good administrative practice if the Commissioner had given the interpreter an opportunity to comment on the case.

The Ombudsman further stated that he considered it regrettable that two notifications from the Commissioner of Police concerning access to the files did not meet the requirement of Section 16, subsection (2) of the Public Administration Act. He also considered it regrettable that the Commissioner’s decision merely stated that all names had been removed from the files and not that only some of the files of the case had been disclosed. No grounds were given for this as required in Sections 22 and 24 of the Public Administration Act.

The Ombudsman criticised the Ministry of Justice’s failure to notice and comment on the above circumstances in connection with its decision on the case.

Finally the Ombudsman stated his opinion that some information in the case relating to two lists of names should have been examined more carefully before a decision was made. He recommended that the Ministry of Justice reconsider the case. (J.no.1999-1575-69).

8-2. Employment and Labour Law 1.2. – Administrative Law 123.1 – 123.2 – 123.3 – 2.2 – 29.5.
Disciplinary dismissal of police official as a result of theft

KRIM lodged a complaint on behalf of a deputy police superintendent against the Ministry of Justice, which had decided to dismiss him pursuant to Section 28, subsection (2) of the Public Servants Statute.

The High Court had imposed three fines proportionate to the offender’s daily income of Dkr100 on the police official for theft by stealing a razor worth Dkr39.95 in a supermarket.

In connection with the question whether the disciplinary sanction had been too severe in relation to the seriousness of the offence, the Ombudsman stated that the imposition of disciplinary sanctions pursuant to Section 24 of the Public Servants Statute and sentencing pursuant to Penal Code in principle rested on different points of view. Sanctions pursuant to Section 24 of the Public Servants Statute were imposed in response to misconduct and not criminal offences. However, the sentencing could be one of several elements included in the assessment of the seriousness of the misconduct.

The Ombudsman further stated that as noted by the Commissioner of Police and the Ministry of Justice it must be taken into account that it is a police official’s duty to monitor the citizens’ observance of rules sanctioned by punishment and that the citizens’ main safeguard against the act in question was to inform the police.

The Ombudsman found no grounds for criticism in connection with the decision to dismiss the police superintendent. (J.no.1996-2401-812).

14-1. Administrative Law 114.3 – 114.5 – 123.1 – 25.1 – 29.6. – International Law 2.
Repatriation of alien pursuant to Section 4 of the Social Security Act. Inclusion of criteria. Mistake of law. Giving of grounds. Notification of decision. Reconsideration. Delaying effect

The Ministry of Social Affairs decided that an alien with shared custody of his Danish son living in Denmark should be repatriated pursuant to Section 4 of the Social Security Act. In the Ministry’s opinion the man did not have sufficiently close links with Denmark to receive permanent maintenance support. The decision was sent to the local authority with a copy to the father.

The Legal Aid Bureau asked the Ministry to reconsider the case with reference to its failure to include Article 8 of the European Human Rights Convention in its decision. The Ministry verbally refused to reconsider the case and argued that the decision was in keeping with common practice. It promised to convey the decision in writing, but this never happened. The Legal Aid Bureau then requested that its complaint to the Ombudsman was given delaying effect. The Ministry stated that this issue was a matter for the aliens authorities.

Among other things the Ombudsman stated that the Ministry of Social Affairs in its overall assessment of the case had failed to include important criteria: how much time the alien spent with his son and Article 8 of the Human Rights Convention. He considered it a matter for severe criticism that the Ministry had included and attached importance to a criterion which was unlawful in this context – consideration for the best interests of the child. It was regrettable that the Ministry had mentioned in support of its decision that if the man found work in Denmark he could apply for and be granted a residence permit from his native country. In the Ombudsman’s opinion this argument was based on a mistake of law.

The Ombudsman further noted that the grounds given by the Ministry for its decision did not meet the requirements in Section 24 of the Public Administration Act, that the decision was not notified directly to the alien, that the Ministry had not as promised given written grounds for its verbal refusal to reconsider the case, and that the grounds for its refusal given verbally by the Ministry were downright wrong. Finally the Ombudsman stated that in his opinion the Ministry of Social Affairs was not generally debarred from giving a complaint to the Ombudsman delaying effect. It was therefore regrettable that the Ministry had not considered the Legal Aid Bureau’s request for delaying effect. It was furthermore extremely regrettable that the Ministry had not responded immediately after receiving the request from the Bureau. The Ombudsman asked the Ministry to reconsider the case and make a fresh decision on the repatriation issue. (J.no.1998-0579-649)

14-4. Administrative Law 1121.3 – 123.2 – 2511.2.
Support towards the purchase of a computer for a disabled child

An association lodged a complaint on behalf of a woman against a local authority and the social board of appeal, which had turned down a request for support towards the purchase of a computer for the woman’s disabled daughter. The association also lodged a complaint against the Social Appeals Board, which had refused to consider the case as a matter of principle or general interest.

The social board of appeal gave as the grounds for its decision that an ordinary computer could not be regarded as necessary additional expenditure as a result of the daughter’s disability. It regarded a computer as one of the things a family would normally acquire.

In a letter to the Social Appeals Board the ombudsman asked the Board to state – on the background of a previously published decision (a so-called ‘social announcement’) on the subject – what basis it had for regarding it as normal that parents purchase computers with a drawing programme, word-processing, colour screen and printer for their children. The Board was also asked to state whether the child’s age was a factor in the usualness of parents purchasing computers for their children and whether it had any views on what size of computer parents normally purchased for their children.

The Social Appeals Board then considered the principles involved and made a fresh decision on the case. (J.no.1997-1238-054).

Newsletter No. 22