What Impartiality?

I made all the initial application to the European Commission of Human Rights, without any lawyer’s help. The Commission found enough in my application to proceed with my case to the Court. At that stage in engaged the British barrister Geoffrey Robertson QC, who represented me together with his assistant Kier Starmer QC, (later Director for Public Prosecution in the United Kingdom and now the leader of Labour).

Geoffrey Robertson QC has written many books and in his book Crimes Against Humanity write about fundamental criminal justice

“First and foremost is the presumption of innocence, described as the “golden thread” of the common law. It appears in every human rights treaty and in Rule 21 of the Hague Tribunal and as Article 66 of the Rome Statute of International Criminal Court. This presumption has two effects: the prosecution must always bear the burden of proof and must shoulder this responsibility in criminal cases to a high standard, proving the case beyond a reasonable doubt. Although some latitude is allowed in requiring defendants to prove matters of which they should have special knowledge. The general burden at the end of the day must fall on the prosecution. International case laws remarkably unanimous on this point.

Secondly, serious criminal trials must be open to the public. Publicity is the very soul of justice. It keeps the judge while trying, under trial. The “secret court” is a kangaroo or Kafka-esque court, associated over many centuries with gross abuse of power. The public nature of the trial remains the greatest safeguard against the unfair use of criminal proceedings.

The third great safeguard is the independence and impartiality´ of the judges, as individuals with sufficient confidence and backbone to stand up to governments and other power-wielders in the society (not excluding the power of terror and intimidation wielded by criminal gangs).

Impartiality is provided for by a rule disqualifying judges for bias, on the principle that `justice must be seen to be done´. It has been rigidly applied by the European Court, ordering the disqualification of judges if they have come from offices connected with the prosecution or, in Hauschildt v. Denmark, have made any prior decision in the case from which bias as to its outcome might reasonably be apprehended. The rule was most notably applied by the House of Lords in 1998 when it bent over backwards to do justice to General Pinochet by annulling its initial 3-2 decision against him.

More than 40% of all high court judges were involved with my case at Eastern High Court (Østre Landsret) See: List of High Court Judges involved in my case  The judges in the Danish Supreme Court who dealt with the case. See  List of Supreme Court Judges

After my judgement against Denmark in 1989, Denmark incorporated the European Convention of Human Right into the Danish Law.  It took nearly another 3 years until 24 April 1992 to do this.

I recently read apart from the legal proposal of incorporating the ECHR law from the special Commission established interestingly only 5 days before the Judgement against Denmark by FREDERIK WAAGE.

A chapter from this Report states (in Danish): “Ganske få dage efter nedsættelsen af EMRK-udvalget, ved folketingsbeslutning af 19. maj 1989, skete der imidlertid noget andet, som man også kan forestille sig har haft en væsentlig indflydelse på Højesterets ændrede praksis vedrørende konventionen. Den 24. maj 1989 blev Danmark for første gang nogensinde dømt for krænkelse af EMRK, i Hauschildt-sagen.  

Afgørelsen må have ramt Højesteret hårdt, ikke mindst fordi den netop vedrørte et forhold ved domstolene – retfærdig rettergang – og således i forstærket grad faldt tilbage på højesteretsdommerne selv. Man kan muligvis argumentere for, at ændringerne i Højesterets begrundelser var et led i en slags selvransagelse ovenpå Hauschildtafgørelsen.

Part of this conclusion:” Højesteret ændrede praksis i 1989. Om det skete for at foregribe et senere lovgivningsinitiativ, som en reaktion på afgørelsen i Hauschildtsagen, eller fordi Højesteret havde ladet sig påvirke af den retspolitiske debat om menneskerettigheder, ved vi ikke. Men det er tankevækkende, at Højesteret først på et tidspunkt, hvor man var blevet underkendt i Strasbourg, og et lovforberedende arbejde på menneskeretsområdet var i gang, begyndte at fremkomme med de præjudikater, der styrkede konventionens retskildemæssige værdi og dermed placerede EMRK i den fremtrædende position, den har i dag. Man kan undre sig over, hvilken interesse Højesteret kunne havde i, at menneskerettighederne forblev en usikker retskilde, og spørge, om Hans Gammeltoft-Hansen havde ret i den hypotese, han fremlagde i 1976 om den positivistiske traditions generelle tilbageholdenhed med at tillægge menneskerettigheder større retskildeværdi.” 

The special commission in Denmark on the 19th May 1989, stated that my judgement against Denmark hid the Danish Supreme Court very hard. The Supreme Court Judges had to truly to look at themselves and they’re previous so-called “high stand” as to Danish justice. See the document in Danish.

What Impartiality?

Over the years the decisions by Judge Claus Larsen in the lower court and the juridical judges in the High Court/Court of Appeal greatly influenced their later decisions, they had already committed themselves.

Furthermore, the same judges had to consider their own previous decisions as well as the justification of these decisions years afterwards. For example, the presiding judge in the High Court/Appeal Court, Judge H. H. Brydensholt, who pronounced the final judgment in March 1984, had already (nearly three years before in July 1981) confirmed that I should remain in solitary confinement, a pre-trial punishment and that the Special Prosecution had a strong case against me.

Judge Brydensholt was taking part in the defence appeal decision from the lower court. Because he also had been the head of the prison service, he knew what solitary confinement did to people, moreover that any pre-trial detention always had to be justified to the Ministry when sentencing. Judge Brydensholt was always serving his masters – the Ministry of Justice.

The juridical judges taking part in the High Court/Court of Appeal proceedings made ten decisions on keeping me incarcerated prior to the trial during 1981 and 1983. After the commencement of the trial in the High Court, these judges made eight decisions along with the three lay judges on keeping me locked-up together. These decisions did indicate prejudice which was very clear to the Danish media. By incarcerating me and since I had already served a sentence longer than the judgments from the lower court (see newspaper article), the judges clearly showed that the High Court/ Court of Appeal found me guilty at the time.

In 2004 advocate Niels Forsby, who was the chairman of the Association of Danish Defence Lawyers, stated:

“That the long pre-trial incarceration of prisoners in Denmark always seemed to be justified by the courts in their final Judgement, in order to save the state from paying any compensation”.

This was 24 years after my terrible long solitary confinement in 1980

All of my defence attorneys and I knew this back in 1980 (twenty-four years earlier) because that is the true reality as to how the courts and judges acted. In fact, advocate Jørgen Jacobsen pointed this out to the lower court (Judge Claus Larsen) back in December 1980 when he tried to free me on bail after eleven months of pre-trial solitary confinement and punishment.

This at a time that I had not even been charged, but Jørgen Jacobsen knew well that Bagmandspolitiet and the courts would justify anything they did to me, never mind if I had committed any offences. Everything would be justified as he already told me after six months in solitary confinement.

Appeals to the Supreme Court – What Appeals?

On several occasions, including on the 15th August 1983, Judge Brink told the court, the defence and the accused that the permission of the Ministry of Justice was not required in order to appeal decisions by the court to the Supreme Court.

Judge Brink was very clear about this and it was also totally clear to the defence and me that such application to the Ministry was not required; otherwise, judge Brink would not state this in the court. Therefore, neither the defence nor I made such application to the Ministry of Justice with regards to the decisions made by the High Court on the 15th August and to Judge Brink’s pre-judicial behaviour and biased actions. 

Judge Brink lied and this lie, in effect, resulted in that the Supreme Court simply later dismissed the appeals on the grounds that the Ministry of Justice had not granted permission for such appeals. 

In other words, due to judge Brink as the head of the High Court trial and his statement to the defence and the accused (that no permission for appeal was required from the Ministry of Justice), the appeals were ignored by the Supreme Court and never heard.

The Ministry of Justice – The Same Body with Many Arms and Hands – like a large octopus with 8 arms.

Advocate Ernest Hartwig wrote in 1978 in the Danish Weekly Transcript of Law, that the Ministry of Justice was totally and exclusively in control of all decisions of appeals to the supreme court. He provided some facts to show this over a 3-year period, the prosecution had applied 90 times and granted 89 appeals, where the defence had appealed 357 times and granted only 52 times (or 14%).

So interestingly, at the time there was less than a 15% chance that you would be granted an appeal to the Supreme Court, if the application came from the defence, whereas a near 100% chance if it came from the prosecution. The most ridiculous state of affairs, that the prosecution (the Ministry of Justice” had to ask the Ministry of Justice to grant them permission to appeal a case to the Supreme Court. One hand had to ask the other hand of the same body?

My Continued Pre-Trial Incarceration Effectively Used as Blackmail Keeping me Hostage to Injustice

Until late 1983, neither the Special Prosecution nor the High Court specified the grounds as to keeping me incarcerated in pre-trial detention month after month.

These offers put forward in the spring of 1983 with regards to me being released if I withdrew the appeal to the High Court. That such offers were made can be confirmed from the letter to the Ministry of Justice from advocate Folmer Reindel, dated 26th October 1983.

All of the judiciary judges at least knew that such an offer had been made to my defence (more than six months earlier) if I would refrain from appealing the Lower Court’s judgment. Moreover, I had shortly, prior to the High Court trial, served a sentence of more than seven years. Therefore keeping me in restrictive pre-trial incarceration during the High Court trial must be considered blackmail and indeed it impeded my ability and rights to defend myself.

As I wrote in my Comment to the European Commission of Human Rights in 1986.

“One of the most serious complaints by the applicant as to the impartiality of the court during the trial in the City Court must be the question of the judges fraternizing with the prosecutor. As can be seen from the applicant’s letter to the City Court on 1 June 1982, the lay judges together with the presiding judge often fraternized with the prosecutor and his assistant. The judges and the prosecutor frequently had coffee together during the 100 days of proceedings (over 18 months) without once being joined by the counsel for the defence.

In most civilized countries, jury and lay judges are not allowed to come into contact outside the courtroom with any of the parties in a case. It is not difficult to understand what happens when people work together month after month as the judges did with the same prosecutor.

In addition to these regular coffee meetings, it is known to the applicant and his counsel that on one occasion (6 April 1982) during a visit to the Danish National Television head office by the court the judges had lunch with the prosecutor and his assistant.

Even worse, the Chief Public Prosecutor Finn Meilby who initially started the case was at this lunch with the two lay judges, the presiding judge and a lay judge substitute. This lunch was also not attended by the counsel for the defence.

Impartiality must be questioned when it was clear to the applicant and others present in the courtroom that the judges and the court secretary frequently and openly during intermissions went into a room together with the prosecutor to drink coffee. Impartiality did not appear to be evident since the counsel for the defence was never invited to join them.”