Fundamental legal principles under attack
01 May 2003
"The seeds of more unjust verdicts have been sown" - Henrik Linde, chairman of the Dommerforeningen (Judges Association)
One of the latest laws to be passed by the Liberal-Conservative government, with the support of the Social Democrats and the Danish Peoples Party, extends police methods of fighting "Rocker criminality and other organised crime", ("Rockers" is an expression covering members of biker-gangs such as the Hells Angles, Bandidos and others). The three main changes concern a) the use of civil agents in criminal milieus with the right to initiate limited criminal activities in order to introduce undercover police agents; b) the use of anonymous witnesses in court room without the accused or the defence lawyer knowing their identity and; c) limiting access for the accused and their lawyer to general material which forms the basis for the specific charge.
Danish law allows the police to cooperate with criminal "informants" for limited information gathering, but under the new legislation police will be permitted to use them to instigate criminal acts. It is now possible for the police to involve a criminal as an "agent" in order to pave the way for a police officer to work undercover in a criminal gang and, if necessary, for the agent to take the initiative in committing a criminal act, such as ordering drug samples in order to secure his position in the gang.
In order to ensure the anonymity of a witness, an informant or an undercover police officer, it is now possible to withhold the witnesses identity from the accused. If the court finds that a statement from them is vital for a case it is for the police to decide if the charges should be dropped or the agent's identity revealed. The prosecution can also demand that the doors of the court be closed and the accused taken out of the courtroom during the agent's evidence.
Finally, limits have been put on defence lawyers' access to evidence if the police believe that it is necessary because of an ongoing investigation. Furthermore, the judge can also be barred from seeing the material if the police hold that it is necessary. After much criticism from legal experts, judges and others the government introduced a system whereby a "second" judge will review whether the information can be allowed to be presented before the "first" judge, or not.
After presenting the proposal at the beginning of May a storm swept through the legal landscape, the law faculties, the courtrooms and among the public. Professor Ms Eva Smith from Copenhagen University pointed out the peculiar origin of the proposals in an article in the daily newspaper Politiken. She wrote:
This proposal has been worked out by a working party consisting of representatives from the police and the prosecution. As a new invention this group is anonymous.
She points out that this was not the only new factor concerning the proposals, since the working party drawing up the proposals deliberately excluded all the usual legal participants in the preparation process - defence lawyers, judges and academic legal experts did not have seats on the working party.
Shortly after the first reactions, the former head of the High Court, Niels Pontoppidan, attacked the government in a commentary in Politiken calling the whole project "Kafkaesque" in its construction. He continued:
"The conflict [with the government] contains the seeds of a constitutional crisis. We are in the situation that the judges have warned against. Then the politicians say: We don't care. And then the judges say: Then we won't rule. This case should lead the parties to listen to each other."
The head of the Lawyers Council (Advokatraadet), Mr. Henrik Rothe, said:
We fear that this will lead to people, who should have been acquitted, being sentenced and we regard the proposal as throwing an unjust suspicion upon defence lawyers.
From the universities, Professor Vagn Greve of Copenhagen U