This analysis was written by Nino Tsereteli, Research Officer at DRI, in consultation with Dr. Martin Lolle Christensen, Post.Doc. at iCourts, Centre of Excellence for International Courts at the University of Copenhagen and Matthias Smed Larsen, Project Student at the Faculty of Law, University of Copenhagen.
A political crisis forced Prime Minister Mette Frederiksen of the Social Democrats to call an early election that will be held on Tuesday 1 November 2022. Under the threat of facing a no confidence motion in Parliament, Frederiksen opted for an early vote and called on Danish citizens to choose the 179 members of the country’s unicameral parliament. The Social Liberal Party, a group supporting the Social Democrats’ minority government, issued their ultimatum to the government in response to the “mink scandal”: A controversy that was triggered by the government order in November 2020 to slaughter millions of minks, suspected to be sick with COVID. Lawyers criticised the government’s decision and claimed that it lacked legal basis. Furthermore, a parliamentary inquiry into the decision concluded that the Prime Minister misled the public when announcing the measure and she was unaware of the illegality of the decision. While this incident may be viewed as exceptional and dictated by the Covid crisis, it also arguably revealed systemic flaws in the government’s decision-making.
Civil society organisations criticised the government for its far-reaching and unnecessary restrictions on rights in the context of Covid crisis. Increased penalties for ‘regular’ offences if committed in connection with the pandemic raised concerns. The European Commission also warned of a lack of monitoring to check the impact of the pandemic on public procurement.
In the area of migration Amnesty International expressed in 2021 a concern about the Danish government’s plan to send asylum-seekers arriving in Denmark to Rwanda, viewing this initiative as “potentially unlawful” and “a dangerous precedent”. Most political parties do not oppose this proposal. Unless a far-left succeeds in November and has sufficient leverage against the Social Democrats, the initiative could move forward.
Notwithstanding these concerns, the Social Democrats lead the polls and are expected to get 26 % of the votes. Left and right-wing parties (grouped as blocs) are going neck and neck. The bloc of right-wing parties includes the Danish Democrats, founded by Inger Stojberg, the Former Minister of Immigration and Integration, who was found guilty of violating the rights of asylum seekers. Her Party will likely get about 8 %. Moderates, a party created by the former Prime Minister Lars Lokke Rasmussen (then leader of the liberal party) and not belonging to either bloc is set to win 9 % of the votes.
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Denmark’s Rule of Law Challenges
Denmark tops almost all rule of law rankings. Its judiciary is widely perceived as independent. Corruption levels are perceived to be one of the lowest in the EU.
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Taking a closer look, however, does show that even the countries that are often congratulated on their rule of law performance may experience challenges. In addition to the issues identified above, a few systemic problems emerge:
- Lack of adequate funding for the judiciary.
- Flaws of the anti-corruption framework and Danish authorities’ reluctance to address them.
- Problems with media pluralism and access to information.
- Denmark’s attitude towards the European Court of Human Rights (ECtHR).
Providing the judiciary with adequate human and financial resources remains a challenge. According to 2022 EU Justice Scoreboard, Denmark has one of the lowest number of judges per 100 000 inhabitants in the EU. A Danish association of judges has emphasised that despite seeing an increased workload of courts, no additional resources have been allocated to them. This has led to an increase in caseload and length of proceedings. While the justice system remains efficient overall, the average case handling time has increased in both civil and criminal cases. Long waiting times could undermine confidence in the justice system over time. The long-standing shortage of resources available to the judiciary can be attributed to the lack of political will to address the issue.
While the government has adopted or proposed some measures, they are not without controversy. For example, the ones adopted to speed up the handling of criminal cases in courts raised concerns due to implications for the defendants’ right to choose a lawyer freely: in some cases, defendants cannot choose a certain lawyer, if their request results in a delay of the proceedings. Various actors have criticised a proposal tabled by the government in April 2022, that would give the police access to information on the whereabouts of a suspect (or any person) without a court order.
Deficiencies in the anti-corruption framework
The perceived levels of corruption are low in Denmark. The 2022 Eurobarometer on Corruption shows that only 16% of the respondents consider corruption widespread (EU average 68%) and only 5% of respondents feel personally affected by corruption in their daily lives (EU average 24%). However, the anti-corruption framework remains deficient. Danish authorities did not follow GRECO’s recommendations to reduce corruption risks. GRECO and subsequently the European Commission have called Denmark out for the lack of adequate substantive control of the declarations of assets submitted by Ministers and top executives. They were also concerned about the absence of rules on ‘revolving doors’ for Ministers and on lobbying. Danish authorities have insisted that the existing anti-corruption system works well and that a dedicated anti-corruption strategy or any specific changes in formal rules are unnecessary. Hence, there are no plans to address flaws or gaps in rules, according to GRECO’s recommendations.
Another issue has been the transparency of political party financing. The government announced measures, but no specific roadmap for their adoption. Planned changes address situations involving manipulations to circumvent limits set for donations. It is unclear, however, if the new law would address all the outstanding issues. In its 2022 Rule of Law report, the European Commission called for adopting new legislation that will address the issue of multiple and anonymous donations and introduce sanctions for breaching the rules on the political parties' framework.
Media Freedom and Pluralism
Media pluralism is not undermined in any major way in Denmark. There are concerns, however, due to the lack of specific regulation against news media concentration, a tendency of general laws failing to mention media explicitly despite covering them, the large role played by informal rules and a lack of laws on editorial independence from market interests.
According to RSF, journalists are generally not subject to any significant threats. However, RSF reports that in late 2021 police and intelligence agencies undertook an extraordinary attempt to intimidate journalists and threaten the secrecy of their sources. The security bodies threatened media members with prison sentences if they didn’t stop information related to national security from going public.
The Freedom of Information Law adopted in 2014 continues to be criticised by media as an obstacle to the right to inform. The law allows institutions to be more restrictive and withhold public information. In its 2022 Report, the European Commission called for the continuation of the process aimed at revising legislation to strengthen the right to access documents.
Denmark and the ECtHR
Out of 5 leading judgments issued against Denmark since 2012, two have been implemented. Denmark remains under supervision for the remaining three. Those three judgments were made final in the past 2 years. Hence, while technically 60 % of leading judgments from the past decade are still pending, there have been no major delays. It takes six months on average to implement leading judgments.
These numbers show that Denmark is rarely found in violation of the Convention for systemic problems in law and practice and whenever that happens, judgments are implemented relatively quickly. While statistics are impressive, they say little about the quality of measures of implementation. Under the current system of supervision, states have considerable room for manoeuvre (freedom of implementation) and can get away with doing relatively little. Not always do they need to substantially alter legislation or practices. Despite this, Danish politicians have expressed discontent about the European Court of Human Rights, including decisions in the area of migration and expulsion of foreigners with a criminal record. Such hostile rhetoric could be contagious and damaging for the European system of rights protection.
The underlying risks of performing well on the rule of law
Denmark gets celebrated for its independent judiciary, free media and low levers of corruption. This can undermine domestic attention to concerns or negative trends. As shown above, the perception of the rule of law as a non-issue hinders the efforts to improve the legal framework and introduce formal safeguards against rule of law violations. Denmark seems to be highly reliant on informal rules. There is lack of explicit, detailed rules precluding or sanctioning certain abuses of power. There is reluctance to strengthen the legal framework, for example, to reduce corruption risks at the highest political level. This is notwithstanding the recommendations from international actors, such as GRECO and European Commission. While good formal rules do not always preclude rule of law backsliding, they could be helpful, for example, if they enable greater transparency and adequate scrutiny from independent institutions that are shielded from external influences and have enough resources to function well. It seems that most political parties are not particularly concerned about criticism from international bodies. Their behaviour and rhetoric do not indicate that the situation will change significantly after elections. Such attitudes from the political elite could lead to the erosion of the rule of law culture and make the legal system vulnerable in the long run.
Input from external experts
Aysel Küçüksu, postdoctoral fellow at iCourts, University of Copenhagen
Denmark has an overwhelmingly positive reputation on the international human rights scene. It fosters this reputation very carefully. On the one hand, it seeks to obey human rights judgments as fast as it can to maintain that reputation, but on the other hand, the high reputation also means that monitoring bodies reduce their scrutiny of Danish cases and close these swiftly. Denmark therefore uses its reputation to decrease oversight over adverse judgments. And in a manner, it can ‘get away’ with lighter requirements when it comes to compliance. The issue is exacerbated by the virtual absence of civil society in the international conversation. Up until very recently, human rights organizations did not intervene in compliance proceedings to nudge Denmark towards better compliance. The interventions from such bodies are crucial: they understand the local environment, they understand the politics and they can help monitoring bodies require better compliance from the state.
A number of Danish politicians have been vocal about their dislike for the European Court of Human Rights and its alleged ability to overturn democratic decisions taken by the Danish Parliament. Such backlash, especially when coming from Denmark, has a negative impact on human rights protections as it emboldens other states’ officials to challenge the Court’s authority.
In Denmark, discontent with the ECtHR is most often voiced when it comes to its decisions within the area of migration and the expulsion of foreigners who have a criminal record. Yet, extensive research from the Danish Institute for Human Rights shows that critique towards the ECtHR on this matter might be misplaced, as it is the Danish courts that have been more likely to rule in favour of the applicants’ right to remain in Denmark. This is not to say that Danish courts should lower the level of protection they maintain, but to highlight that the debate around the ECtHR has been stirred by strategic campaigns against foreign influence, rather than data. Danish politicians’ distrust for judicial review is deeply embedded in the Danish constitutional tradition, which favours restrained courts. Nobody is allowed to stand ‘beside or above’ Parliament, and this makes any kind of judicial review – be it national or international – suspicious by default. This is a problem because it rests on the fallacy that the word of Parliament will always epitomize the utmost democratic ideals. The fact that an elected majority has pushed a set of laws through Parliament says little about the substance of those laws. Thus, judicial self-restraint only weakens the robustness of human rights protection.
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